no. 15-40238 in the united states court of appeals...
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No. 15-40238 ________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT ________________________
STATE OF TEXAS, et al.,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA, et al.,
Defendants-Appellants. ________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS ________________________
BRIEF OF THE AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS AS AMICUS CURIAE IN SUPPORT OF APPELLANTS
________________________
Lynn K. Rhinehart Harold C. Becker Matthew J. Ginsburg 815 Sixteenth Street, NW Washington, DC 20006 (202) 637-5397
No. 15-40238 ________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT ________________________
STATE OF TEXAS, et al.,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA, et al.,
Defendants-Appellants. ________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS ________________________
SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS
Pursuant to Circuit Rules 28.2.1 and 29.2, the undersigned counsel of record
certifies that the following persons and entities have an interest in this amicus
brief. These representations are made in order that the judges of this court may
evaluate possible disqualifications or recusal.
1. American Federation of Labor and Congress of Industrial Organizations, Amicus Curiae.
2. Lynn K. Rhinehart, Harold C. Becker, Matthew J. Ginsburg, Attorneys for Amicus Curiae American Federation of Labor and Congress of Industrial Organizations.
The undersigned counsel further certifies, pursuant to Federal Rule of
Appellate Procedure 26.1(a), that Amicus Curiae American Federation of Labor
and Congress of Industrial Organizations is not a publicly held corporation, does
not have any parent corporation, and that no publicly held corporation owns 10%
or more of its stock.
/s/ Matthew J. Ginsburg
Matthew J. Ginsburg
CERTIFICATE OF CONFERENCE Pursuant to Federal Rule of Appellate Procedure 29(a), counsel for amicus
curiae American Federation of Labor and Congress of Industrial Organizations
conferred with counsel for the Plaintiffs-Appellees on March 31, 2015, to seek
consent for the filing of this amicus brief. Counsel for Plaintiffs-Appellees stated
that Plaintiffs-Appellees consent to the filing of this brief.
Counsel for amicus curiae American Federation of Labor and Congress of
Industrial Organizations conferred with counsel for the Defendants-Appellants on
March 31, 2015, to seek consent for the filing of this amicus brief. Counsel for
Defendants-Appellants stated that Defendants-Appellants consent to the filing of
this brief.
/s/ Matthew J. Ginsburg Matthew J. Ginsburg
TABLE OF CONTENTS
Page TABLE OF AUTHORITIES .................................................................................... ii STATEMENT OF INTEREST .................................................................................. 1 BACKGROUND ....................................................................................................... 4 SUMMARY OF ARGUMENT ................................................................................. 9 ARGUMENT ........................................................................................................... 11 I. Texas Lacks Standing to Challenge the Deferred Action Memorandum Under the APA ................................................................. 12 II. The Deferred Action Memorandum Is Not Subject to APA Notice-and-Comment Requirements ........................................................ 18 CONCLUSION ........................................................................................................ 24
i
TABLE OF AUTHORITIES
CASES: Page
Air Courier Conf. of America v. American Postal Workers Union, 498 U.S. 517 (1991)................................................................................. 13, 17 Alvidres-Reyes v. Reno, 180 F.3d 199 (5th Cir. 1999) ............................................ 21 Arizona v. United States, 132 S. Ct. 2492 (2012) .......................................... 1, 23, 24 Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014) ........................................... 6, 7 Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970)....................................................................................... 13 Bluefield Water Ass’n Inc. v. City of Starkville, 577 F.3d 250 (5th Cir. 2009) ...... 11 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .......................................... 19, 20, 24 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ................. 23 Clark v. Suarez Martinez, 543 U.S. 371 (2005) ....................................................... 6 Clarke v. Securities Industries Assn., 479 U.S. 388 (1987)............................... 13, 17 Guardian Federal Savings and Loan Association v. Federal Savings and Loan Insurance Corp., 589 F.2d 658 (D.C. Cir. 1978) .......................................... 22 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) ....................... 1, 2 Johns v. Department of Justice, 653 F.2d 884 (5th Cir. 1981) ........................ 5, 7, 23 Lincoln v. Vigil, 508 U.S. 182 (1993) ...................................................................... 19 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) ............................ 13, 17 Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) ............................................................................. 13, 14
ii
CASES – Continued: Page
NLRB v. A.P.R.A. Fuel Oil Buyers Group, 134 F.3d 50 (2d Cir. 1997) .................... 1 Palma v. NLRB, 723 F.3d 176 (2d Cir. 2013) .......................................................... 1 Pasquini v. Morris, 700 F.2d 658 (11th Cir. 1983) ................................................... 7 Peaches Entertainment Corp. v. Entertainment Repertoire Assocs., 62 F.3d 690 (5th Cir. 1995) ........................................................................... 11 Professionals and Patients for Customized Care v. Shalala, 56 F.3d 592 (5th Cir. 1995) ......................................................... 19, 20, 21, 22 Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)..................................................................... 5, 6, 7, 20, 24 Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ...................................................... 1, 2 STATUTES AND REGULATIONS: 5 U.S.C. § 551(4) ..................................................................................................... 18 5 U.S.C. § 553(b) ..................................................................................................... 18 5 U.S.C. § 553(b)(A) ................................................................................................ 18 5 U.S.C. § 553(c) ..................................................................................................... 18 5 U.S.C. § 701(a)(2) ........................................................................................... 23, 24 5 U.S.C. § 702 .............................................................................................. 12, 17, 18 8 U.S.C. § 1252(g) ............................................................................................. 20, 21 8 U.S.C. § 1324a(h)(3) ............................................................................................... 8 Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2192 ........................... 6
iii
STATUTES AND REGULATIONS – Continued: Page
Immigration and Nationality Act, codified as amended at 8 U.S.C. § 1001 et seq. .. 5 Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 Stat. 3445 ....... 8 REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, codified at 49 U.S.C. 30301 note ....................................................................................... 7 8 C.F.R. § 274a.12(c)(14) .......................................................................................... 9 MISCELLANEOUS: Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (2013) ............................................................................. 3 DOJ Office of Legal Counsel, Memorandum Opinion for the Secretary of Homeland Security and the Counsel to the President: The Department
of Homeland Security’s Authority to Prioritize the Removal of Certain Aliens Unlawfully Present in the U.S. and to Defer Removal of Others (Nov. 19, 2014) ....................................................................................... 6, 7, 8
INS, Control of Employment of Aliens, 52 Fed. Reg. 16216 (May 1, 1987) ........... 9 INS, Employment Authorization to Aliens in the United States, 46 Fed. Reg. 25079 (May 5, 1981) .................................................................. 8 INS Operating Instruction 103.1(a)(1)(ii) (1975) (rescinded) ................................... 7 J. Johnson, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014) ......................................................................................passim Securing the Border: Defining the Current Population Living in the Shadows and Addressing Future Flows: Hearing Before the Senate Committee on Homeland Security and Governmental Affairs, 114th Cong. (March 26, 2015) (Written Testimony of Jeffrey S. Passel) ........................... 1
iv
BRIEF OF THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS
AMICUS CURIAE IN SUPPORT OF APPELLANTS
STATEMENT OF INTEREST
The American Federation of Labor and Congress of Industrial Organizations
(AFL-CIO) is a federation of 56 national and international labor organizations with
a total membership of approximately 12.5 million working men and women.1 The
AFL-CIO has a strong interest in the effects of immigration law on the rights of
employees and thus has routinely filed amicus briefs or otherwise participated in
cases related to this issue. See, e.g., Arizona v. United States, 132 S. Ct. 2492
(2012); Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002); Sure-
Tan, Inc. v. NLRB, 467 U.S. 883 (1984); Palma v. NLRB, 723 F.3d 176 (2d Cir.
2013); NLRB v. A.P.R.A. Fuel Oil Buyers Group, 134 F.3d 50 (2d Cir. 1997).
The reason for the AFL-CIO’s interest in this topic is straightforward. The
current unauthorized immigrant population in the United States is approximately
11.2 million. Securing the Border: Defining the Current Population Living in the
Shadows and Addressing Future Flows: Hearing Before the Senate Committee on
Homeland Security and Governmental Affairs, 114th Cong. (March 26, 2015)
1 Counsel for the appellants and counsel for the appellees have each consented to the filing of this amicus brief. No counsel for a party authored this brief amicus curiae in whole or in part, and no person or entity, other than the amicus, made a monetary contribution to the preparation or submission of this brief.
1
(Written Testimony of Jeffrey S. Passel, Senior Demographer, Pew Research
Center 1-2). Of this total, approximately 8.1 million unauthorized immigrants are
employed, making up 5.1 percent of the total U.S. labor force. Id. at 6. This
population is concentrated in several industries in which AFL-CIO affiliate unions
have a strong presence, including meatpacking, leisure and hospitality,
construction, domestic services, and agriculture. Id. at 7.
There are two interconnected reasons why this is a matter of particular
interest to the AFL-CIO.
First, through existing collective bargaining relationships, AFL-CIO
affiliates represent many undocumented workers in workplaces throughout the
country. Although these workers are entitled to the substantive protections of labor
and employment law, they are not entitled to the full range of remedies when these
laws are violated, see Hoffman Plastic Compounds, 535 U.S. at 151-52
(undocumented workers not entitled to backpay under the National Labor
Relations Act), and are vulnerable to employer retaliation if they complain about
violations, see, e.g., Sure-Tan, 467 U.S. at 886-87 (employees who supported
union deported after employer contacted immigration authorities).
Second, this lack of legal remedies and vulnerability to retaliation creates an
incentive for some unscrupulous employers to employ large numbers of
undocumented workers at sub-standard wages and working conditions. Law-
2
abiding employers must compete with these employers, making it more difficult
for AFL-CIO affiliate unions to raise wages and improve working conditions.
Since 2009, the AFL-CIO has sought to address these issues as a policy
matter by advocating for comprehensive immigration legislation that, among other
things, would provide a pathway to legalization and citizenship for many
unauthorized immigrants, ensure that remedies for labor and employment law
violations are available to all workers, and make border security and workplace
employment verification more effective and fair. To that end, the AFL-CIO
supported the Border Security, Economic Opportunity, and Immigration
Modernization Act, S. 744, 113th Cong. (2013), which addressed these issues but
ultimately was not enacted into law.
The AFL-CIO also supports the deferred action guidance at issue in this case
because we expect that guidance will provide temporary relief to some
undocumented workers who have lived in the United States for many years and are
not priorities for removal under Department of Homeland Security (DHS)
enforcement policies. Because individuals who receive deferred action can also
apply for temporary employment authorization, the AFL-CIO believes that the
deferred action guidance will enable at least some undocumented workers to better
protect their rights at work – to their own benefit and to the benefit of all workers.
3
This case, of course, is not about policy, but about the law. The AFL-CIO
submits this amicus brief to explain why the deferred action guidance is a lawful
exercise of DHS’s prosecutorial discretion.
BACKGROUND
This case involves a challenge by Texas and other States (collectively, “the
Plaintiff States”) to a memorandum issued by Secretary of Homeland Security Jeh
Johnson to the heads of DHS’s three component immigration enforcement
agencies. See J. Johnson, Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children and with Respect to
Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents
(Nov. 20, 2014) (“the Deferred Action Memorandum”). That Memorandum
provides guidance regarding the exercise of prosecutorial discretion in the
enforcement of federal immigration law through the use of deferred action,
specifically with regard to individuals who, among other criteria, have been present
in the United States for more than five years, are not priorities for removal
pursuant to separate DHS guidance, and who either came to the United States as
children (commonly referred to as “Deferred Action for Childhood Arrivals” or
“DACA”) or are the parents of U.S. citizens or permanent residents (commonly
referred to as “Deferred Action for Parents” or “DAPA”).
4
Deferred action is an exercise of DHS’s broad prosecutorial discretion to
enforce the Immigration and Nationality Act (INA), codified as amended at 8
U.S.C. § 1101 et seq., that has been approved by both the courts and Congress.
The particular approach taken by the Secretary in the Memorandum – describing
categories of individuals who are eligible to apply for deferred action on a case-by-
case basis and permitting individuals who receive deferred action to apply for
employment authorization – is fully consistent with the historic exercise of
deferred action authority by DHS and its predecessor agency, the Immigration and
Naturalization Service (INS).
The policy “originally . . . known as nonpriority and . . . now designated as
deferred action” simply refers to DHS’s discretionary prosecutorial decisions to
“decline to institute proceedings, terminate proceedings, or decline to execute a
final order of deportation.” Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471, 484 (1999) (“AADC”) (quoting Gordon, Mailman, &
Yale-Loehr, Immigration Law and Procedure § 72.03[2][h](1998)). “Approval of
deferred action status means that . . . no action will thereafter be taken to proceed
against an apparently deportable alien.” Ibid. As this court explained in Johns v.
Department of Justice, 653 F.2d 884, 890 (5th Cir. 1981) – cited with approval by
the Supreme Court, see AADC, 525 U.S. at 484 – in “determin[ing] whether . . . to
refrain from (or, in administrative parlance, to defer in) executing an outstanding
5
order of deportation, or . . . to stay the order of deportation” “both the length and
the reason for the stay lie entirely within the discretion of the Attorney General or
his delegate.”2
While the Supreme Court noted in 1999 that historically deferred action had
“developed without express statutory authorization,” AADC, 525 U.S. at 484, in
the interceding years, Congress has enacted several statutes approving of DHS’s
exercise of its deferred action authority. See Arpaio v. Obama, 27 F. Supp. 3d 185,
193-94 (D.D.C. 2014) (describing three examples of Congress approving of the use
of deferred action since 2000). See also DOJ Office of Legal Counsel,
Memorandum Opinion for the Secretary of Homeland Security and the Counsel to
the President: The Department of Homeland Security’s Authority to Prioritize
Removal of Certain Aliens Unlawfully Present in the U.S. and to Defer Removal of
Others, 18-20 (Nov. 19, 2014) (“OLC Memo.”) (providing five examples of
congressional approval of deferred action). Most notably, as part of a law creating
“minimum standards for Federal use” of drivers’ licenses for purposes such as
“boarding federally regulated commercial aircraft,” Congress stated that
“[e]vidence of lawful status” in the United States included “approved deferred
2 The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2192, transferred the authorities described in the INA as having been exercised by the Attorney General and the INS to the Secretary of Homeland Security and DHS’s component immigration enforcement agencies. See Clark v. Suarez Martinez, 543 U.S. 371, 375 n.1 (2005).
6
action status.” REAL ID Act of 2005, Pub. L. No. 109-13, § 202(c)(2)(B)(viii),
119 Stat. 231, 312-13, codified at 49 U.S.C. 30301 note.
DHS, like the INS before it, has exercised its deferred action authority
through the issuance of internal agency guidance describing categories of
individuals who are eligible to apply for deferred action. Prior to 1997, the INS
followed an internal agency operating instruction – since rescinded – that
emphasized factors such as “long-time residence in the United States,” “advanced
or tender age,” and the “familial effects” of deportation. Johns, 653 F.2d at 890
n.14 (citing now-rescinded INS Operating Instruction 103.1(a)(1)(ii) (1975)). See
also Pasquini v. Morris, 700 F.2d 658, 661 (11th Cir. 1983) (reproducing INS O.I.
103.1(a)(1)(ii) in its entirety).3 In more recent years, the INS and DHS have,
through a series of memoranda, announced several categories of individuals
eligible to apply for deferred action, including “victims of human trafficking and
certain other crimes; students affected by Hurricane Katrina; widows and
widowers of U.S. citizens; and certain aliens brought to the United States as
children.” Arpaio, 27 F. Supp. 3d at 193-94 (citing various agency memoranda)
(footnotes omitted). See also OLC Memo. 15-18 (describing “five occasions since
3 The Supreme Court noted that, although the operating instruction was rescinded in 1997, the INS continued to makes the same “sort of determination on a case-by-case basis.” AADC, 525 U.S. at 484 n.8 (citing 16 C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure § 242.1 (1998)).
7
the late 1990s[] [in which] INS and later DHS have . . . made discretionary relief
available to certain classes of aliens through the use of deferred action”).
Since at least 1981, the INS and DHS have permitted individuals who
receive deferred action – like other categories of aliens present in the United States
solely at the discretion of federal immigration authorities – to apply for temporary
employment authorization. In that year, the INS issued a final regulation after
notice-and-comment rulemaking concerning the “[c]lasses of aliens eligible” to
receive employment authorization. INS, Employment Authorization to Aliens in
the United States, 46 Fed. Reg. 25079 (May 5, 1981) (Final Rule) (previously
codified at 8 C.F.R. pt. 109). That regulation permitted an alien who received
deferred action to be granted employment authorization if “[t]he alien establishes
to the satisfaction of the [INS] district director that he/she is financially unable to
maintain himself/herself and family without employment.” Ibid. (quoting former 8
C.F.R. § 109.1(b)(6)).
In 1986, Congress ratified the Attorney General’s practice of granting
temporary employment authorization to deferred action recipients by enacting, as
part of the Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 Stat.
3445, a provision stating that “the term ‘unauthorized alien’ . . . [] with respect to .
. . employment” does not include an alien “authorized to be so employed . . . by the
Attorney General.” 8 U.S.C. § 1324a(h)(3). Subsequently, the INS promulgated a
8
slightly-amended employment authorization regulation, again through notice-and-
comment rulemaking, that remains in effect today. See INS, Control of
Employment of Aliens, 52 Fed. Reg. 16216 (May 1, 1987) (redesignating 8 C.F.R.
pt. 109, with amendments, as 8 C.F.R. pt. 274a, Subpart B). That regulation states
that employment authorization is available to “[a]n alien who has been granted
deferred action, an act of administrative convenience to the government which
gives some cases lower priority, if the alien establishes an economic necessity for
employment.” 8 C.F.R. § 274a.12(c)(14).
SUMMARY OF ARGUMENT
The sole basis for the preliminary injunction is the district court’s
determination that Texas was substantially likely to prevail on its claim that DHS
was required by the Administrative Procedure Act (APA) to subject the Deferred
Action Memorandum to notice and comment. That determination rests on two
erroneous legal conclusions. First, Texas does not have statutory standing under
the APA to bring such a claim. And, second, the Deferred Action Memorandum is
a general statement of policy exempt from APA notice and comment requirements.
Because those clear legal errors constitute an abuse of discretion, this Court should
reverse the preliminary injunction.
Texas does not have statutory standing under the APA to bring its claim
because the sole concrete injury it asserts – the cost to Texas of issuing drivers’
9
licenses to individuals who receive deferred action – is not even remotely within
the zone of interests of federal immigration law. Even accepting arguendo that the
cost of issuing drivers’ licenses constitutes an Article III injury, that injury is so
marginally related to the purposes of federal immigration law that it is an
insufficient basis for statutory standing under the APA. The two other alleged
injuries asserted by Texas – that the Deferred Action Memorandum would cause a
wave of new unauthorized immigration and that the Memorandum would require
the state to expend additional resources on law enforcement, healthcare, and
education – were correctly found by the court to be too speculative and too
attenuated to constitute Article III injuries and thus are also insufficient to prove
statutory standing under the APA.
Even if Texas did have standing to bring its claim, the Deferred Action
Memorandum is a general statement of policy that is not subject to APA notice and
comment procedures. The Memorandum states on its face that it does not have
binding effect, explaining that it confers no substantive rights on any individual,
that DHS will make deferred action decisions on a case-by-case basis, and that any
decision to grant deferred action may be terminated at any time at DHS’s sole
discretion. And, pursuant to existing statutory authority, DHS’s decisions to grant
or deny deferred action are shielded from judicial review.
10
The district court’s conclusion that the Deferred Action Memorandum
constitutes a substantive rule because the criteria regarding who may apply for
deferred action is so detailed that DHS retains no discretion in making deferred
action decisions is incorrect both as a factual and legal matter. Factually, the
Memorandum states explicitly that, notwithstanding the criteria, DHS will make
deferred action decisions on a case-by-case basis subject to the exercise of its
broad prosecutorial discretion. Legally, that the Deferred Action Memorandum
contains detailed criteria does not convert it into a substantive rule. What matters
is not the level of detail, but that DHS states explicitly that it will exercise its
discretion in each case. The latter conclusion has particular force because the
Deferred Action Memorandum relates to the enforcement of federal immigration
law, which, like criminal law, is strongly committed to agency discretion by law.
ARGUMENT
The district court issued the preliminary injunction based on its conclusion
that the State of Texas is substantially likely to prevail on the merits of its
procedural challenge to the Deferred Action Memorandum under the APA. A
district court “abuses its discretion if it . . . relies on erroneous conclusions of law”
when deciding to grant an injunction. Peaches Entertainment Corp. v.
Entertainment Repertoire Assocs., 62 F.3d 690, 693 (5th Cir. 1995). See also
Bluefield Water Ass’n Inc. v. City of Starkville, 577 F.3d 250, 253 (5th Cir. 2009)
11
(“Conclusions of law made with respect to . . . a preliminary injunction are
reviewed de novo.”). Because both the district court’s determination that Texas
has standing under the APA and its determination that DHS was required to subject
the Deferred Action Memorandum to notice and comment constituted clear legal
error, the court abused its discretion. This Court should, therefore, reverse the
preliminary injunction.
I. Texas Lacks Standing to Challenge the Deferred Action Memorandum Under the APA
Texas and the other Plaintiff States lack statutory standing to bring the claim
that forms the sole basis for the injunction: the district court’s finding that DHS
“legislated a substantive rule without complying with the procedural requirements
under the Administration [sic] Procedure Act.” Memorandum Opinion and Order
at 123, Texas v. United States, 1:14-cv-00254, docket no. 145 (Feb. 16, 2015)
(hereafter, “Op.”). See also Op. 121 (stating that “the Court is specifically not
addressing Plaintiffs’ likelihood of success on their substantive APA claim or their
constitutional claims.” (emphasis in original)).
The APA’s judicial review provision states that “[a] person suffering legal
wrong because of agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to judicial review
thereof.” 5 U.S.C. § 702. “To establish standing to sue under the APA,” a plaintiff
must “show[] that [he is] adversely affected, i.e., ha[s] suffered an ‘injury in fact’”
12
and “must establish that the injury he complains of (his aggrievement, or the
adverse effect upon him) falls within the ‘zone of interests’ sought to be protected
by the statutory provision whose violation forms the legal basis for his complaint.”
Air Courier Conf. of America v. American Postal Workers Union, 498 U.S. 517,
523-24 (1991) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 883
(1990) (emphasis in original)). See also Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (an APA plaintiff
“must satisfy not only Article III’s standing requirements, but an additional test” of
showing he is “within the zone of interests” of the relevant statute) (quotation
marks omitted).
It is true, as the district court recognized, that statutory standing under the
APA requires that the interest asserted by the plaintiff only be “‘arguably within
the ‘zone of interests’ to be protected or regulated by the statute’ that he says was
violated.” Match-E-Be-Nash-She-Wish Band, 132 S.Ct. at 2210 (quoting
Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S.
150, 153 (1970)). However, this relatively lenient test is not without limits. The
APA’s judicial review provision “forecloses suit . . . when a plaintiff’s ‘interests
are so marginally related to or inconsistent with the purposes implicit in the statute
that it cannot reasonably be assumed that Congress intended to permit the suit.’”
Ibid. (quoting Clarke v. Securities Industries Assn., 479 U.S. 388, 399 (1987)).
13
The district court concluded that “Plaintiffs’ claims come within the ‘zone of
interests’ to be protected by the immigration statutes at issue in this litigation”
because it is the duty of DHS to “guard[] the border and remov[e] illegal aliens
present in the country.” Op. 35-36. In particular, the court held that “the acts of
Congress deeming these individuals removable” – referring to individuals eligible
to apply for deferred action – “were passed in part to protect the States and their
residents.” Op. 78. Therefore, “[t]he fact that DAPA undermines the INA statutes
enacted to protect the states puts the Plaintiffs squarely within the zone of interest
of the immigration statutes at issue.” Op. 36.
The fundamental problem with the district court’s APA standing holding is
that the court rejected the same claim – that the Deferred Action Memorandum, by
allegedly undermining DHS’s statutory responsibility to “guard[] the border and
remov[e] illegal aliens present in the country,” Op. 36, causes a cognizable injury
to Texas – as a basis for Article III standing. That injury cannot, a fortiori,
constitute a basis for APA standing. And, the only injury the district court did find
provided Texas with Article III standing – the cost to Texas of issuing drivers’
licenses to aliens who received deferred action – is “so marginally related to . . .
the purposes implicit in the [INA] that it cannot reasonably be assumed that
Congress intended to permit the suit.’” Match-E-Be-Nash-She-Wish Band, 132
S.Ct. at 2210.
14
The Plaintiffs’ theories for standing related to “guarding the border and
removing illegal aliens present in the country,” Op. 36, were: (1) that the Deferred
Action Memorandum “is certain to trigger a new wave of undocumented
immigration” across the Texas-Mexico border that will lead to increased costs for
Texas, Amended Compl. ¶ 62, Texas v. United States, 1:14-cv-00254, docket no.
14 (Dec. 9, 2014); and (2) “[t]he Plaintiff States will be forced to expend
substantial resources on law enforcement, healthcare, and education” on those
granted deferred action, id. ¶ 64. The court properly rejected both alleged injuries
as grounds for Article III standing.
The district court rejected Plaintiffs’ claim that the Deferred Action
Memorandum would “trigger a new wave of undocumented immigration,” id. 62,
for the simple reason that the connection between DHS’s Deferred Action
Memorandum and the decisions by individuals to immigrate to the United States is
simply “too attenuated to enjoin DAPA’s implementation.” Op. 56. As the court
explained, “[t]he decision to immigrate illegally is motivated by innumerable
factors,” such as “that the United States’ economy is doing better than that of their
homeland, or because the United States has better schools or more advanced
medical care.” Ibid. Therefore, “[t]he States have not shown that an injunction
against DAPA would redress these particular damages.” Ibid.
15
The court rejected Plaintiffs’ claim that the Deferred Action Memorandum
would “force [States] to expend substantial resources on law enforcement,
healthcare, and education” for individuals who receive deferred action, Amended
Compl. ¶ 64, on the basis that “these . . . indirect damages . . . are not caused by
DAPA” since “DAPA applies only to individuals who have resided in the United
States since 2010.” Op. 52. As a result, “[i]f the Court were to grant the requested
relief, it would not change the presence of these individuals in this country, nor
would it relieve the States of their obligations to pay for the associated costs.
Thus, an injunction against DAPA would not redress the damages described.”
Ibid.
The sole injury found by the district court to be sufficient for Article III
standing was that the Deferred Action Memorandum “will create a new class of
individuals eligible to apply for driver’s licenses, the processing of which will
impose substantial costs on [Texas’s] budget.” Op. 22. Notably, the court did not
find that this injury brought Texas within the zone of interests of the INA for APA
standing purposes, see Op. 35-36; 77-81 (discussing zone of interest inquiry),
presumably because the cost to Texas of issuing additional drivers’ licenses bears
no meaningful connection to the relevant purposes of the INA identified by the
court – the federal government’s “duties . . . [to] guard[] the border and remov[e]
illegal aliens present in the country.” Op. 36. The court’s implicit conclusion that
16
the cost to Texas of issuing drivers’ licenses to individuals who receive deferred
action is “so marginally related to . . . the purposes implicit in the [INA] that it
cannot reasonably be assumed that Congress intended to permit” an APA suit on
this basis, Clarke, 479 U.S. at 399, is undoubtedly correct.
If it were otherwise, any Article III injury that a state or other third party
suffers as a result of a federal agency’s action, no matter how non-germane to the
“meaning of the relevant statute,” 5 U.S.C. § 702, would provide that party with
standing to challenge the action under the APA. That is not the law. See Air
Courier Conference, 498 U.S. at 524 (“[An] injury in fact does not necessarily
mean one is within the zone of interests to be protected by a given statute.”).
As the Supreme Court has helpfully illustrated:
“The failure of an agency to comply with a statutory provision requiring ‘on
the record’ hearings would assuredly have an adverse effect upon the
company that has the contract to record and transcribe the agency’s
proceedings; but since the provision was obviously enacted to protect the
interests of the parties to the proceedings and not those of the reporters, that
company would not be ‘adversely affected within the meaning’ of the
statute.” Ibid. (quoting Lujan, 497 U.S. at 883).
The same is true here. Even accepting arguendo that the cost to Texas of
issuing drivers’ licenses to individuals who receive deferred action constitutes a
17
sufficient injury for Article III standing, that injury – like the economic injury to a
court reporter of an agency’s failure to comply with an on-the-record hearing
requirement – does not render Texas “adversely affected . . . within the meaning of
[the INA],” 5 U.S.C. § 702, such that it has statutory standing under the APA to
challenge the Deferred Action Memorandum.
II. The Deferred Action Memorandum Is Not Subject to APA Notice-and-Comment Requirements
The district court clearly erred in its determination that Plaintiffs were
substantially likely to prevail on the merits of their claim that the Deferred Action
Memorandum is subject to the APA’s notice-and-comment rulemaking
requirements. The Memorandum is exempt from those requirements as a general
statement of policy in an area – the enforcement of immigration law – where
agency action is strongly committed to agency discretion by law.
The APA generally requires agencies to engage in notice-and-comment
rulemaking for agency rules, 5 U.S.C. § 553(b) & (c), which it defines, as relevant
here, as “the whole or a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law or
policy,” id. § 551(4). An agency’s “general statements of policy” are, however,
exempt from these notice-and-comment requirements. Id. § 553(b)(A).
For purposes of the APA, “general statements of policy” are those
“‘statements issued by an agency to advise the public prospectively of the manner
18
in which the agency proposes to exercise a discretionary power.’” Lincoln v. Vigil,
508 U.S. 182, 197 (1993) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302
n.31 (1979)). As this Court has explained, “a general statement of policy is a
statement by an administrative agency announcing motivating factors the agency
will consider, or tentative goals toward which it will aim, in determining the
resolution of a substantive question of regulation.” Professionals and Patients for
Customized Care v. Shalala, 56 F.3d 592, 601 (5th Cir. 1995) (quotation marks
and footnote omitted). In contrast, an agency’s “substantive rules” – which are
subject to notice-and-comment rulemaking – are those which have “the binding
effect of law,” Chrysler Corp., 441 U.S. at 315. See also Professionals and
Patients for Customized Care, 56 F.3d at 596 (“A touchstone of a substantive rule
is that it establishes a binding norm.”).
The Deferred Action Memorandum is the archetype of a general statement
of policy that “advise[s] the public prospectively of the manner in which the
agency proposes to exercise [its] discretionary power,” Lincoln, 508 U.S. at 197,
and “announc[es] motivating factors the agency will consider . . . in determining
the resolution of a substantive question of regulation,” Professionals and Patients
for Customized Care, 56 F.3d at 601. The Memorandum “advises the public
prospectively,” Lincoln, 508 U.S. at 197, that “[d]ue to limited resources, DHS and
its Components cannot respond to all immigration violations or remove all persons
19
illegally in the United States,” and, therefore, DHS will seek to conserve its scarce
enforcement resources through “[c]ase-by-case exercises of deferred action for
children and long-standing members of American society who are not enforcement
priorities,” Memo. 1, 3. The Memorandum also “announc[es] [the] motivating
factors the agency will consider,” Professionals and Patients for Customized Care,
56 F.3d at 601, in its case-by-case determinations of whether to grant deferred
action, including the length of time individuals have been in the United States,
whether individuals constitute enforcement priorities pursuant to separate DHS
guidance, whether they were brought to the United States as children, and whether
they are parents of U.S. citizens or legal permanent residents. Memo. 3-5.
Unlike a substantive rule for which notice-and-comment rulemaking is
required, the Secretary’s memorandum does not have “the binding effect of law,”
Chrysler Corp., 441 U.S. at 315, on the regulated party – aliens applying for
deferred action. The Memorandum states on its face that it “confers no substantive
right, immigration status or pathway to citizenship,” and that any grant of deferred
action pursuant to the Memorandum’s criteria “may be terminated at any time at
the agency’s discretion.” Memo. 2, 5. Moreover, DHS’s “‘no deferred action’
decisions” are shielded from judicial review by statute, AADC, 525 U.S. at 484
(discussing 8 U.S.C. § 1252(g)), so an alien who is denied deferred action or
whose deferred action designation is revoked generally cannot access the courts to
20
challenge that decision. See also Alvidres-Reyes v. Reno, 180 F.3d 199, 201 (5th
Cir. 1999) (“The Congressional aim of § 1252(g) is to protect from judicial
intervention the Attorney General’s long-established discretion to decide whether
and when to prosecute or adjudicate removal proceedings or to execute removal
orders.”).
The district court nevertheless rejected DHS’s argument that the Deferred
Action Memorandum is a general statement of policy on the basis that the
Memorandum provides such “detailed criteria” regarding which individuals may
receive a grant of deferred action that, according to the court, DHS retains little
discretion as to how it will apply the deferred action criteria to individual cases.
Op. 108-09, 111. That conclusion is incorrect both as a factual and legal matter.
As a factual matter, the Deferred Action Memorandum states explicitly that,
notwithstanding the criteria set forth therein, “the ultimate judgment as to whether
an immigrant is granted deferred action will be determined on a case-by-case
basis” by DHS in “the exercise of [its] prosecutorial discretion.” Memo. 5.
Where, as here, agency guidance “expressly refers to the discretionary nature” of
the agency’s decision, that guidance should not be “read . . . restrictively” as if it
were “intended to foreclose the agency’s exercise of its discretion.” Professionals
and Patients for Customized Care, 56 F.3d at 600 (emphasis added).
21
As a legal matter, the fact that agency guidance includes “detailed criteria,”
Op. 111, about the factors it will consider in deciding whether to grant or deny a
wholly discretionary benefit does not convert a general statement of policy into a
substantive rule for purposes of the APA. For example, the inclusion of nine
detailed factors in a Food and Drug Administration Compliance Policy Guide for
pharmacies did not convert the Guide into a substantive rule because it still
“afford[ed] an opportunity for individualized determinations” and “state[d] that,
even if the factors are present, the FDA retain[ed] discretion whether to bring an
enforcement action.” Professionals and Patients for Customized Care, 56 F.3d at
597-98. Similarly, a Federal Savings and Loan Insurance Corporation regulation
was a general statement of policy despite containing detailed requirements
“specifying the criteria that audits and auditors must fulfill in order to produce an
audit report that is satisfactory to the agency.” Guardian Federal Savings and
Loan Association v. Federal Savings and Loan Insurance Corp., 589 F.2d 658, 666
(D.C. Cir. 1978). In reaching this conclusion, the D.C. Circuit specifically rejected
the argument that “specific and detailed requirements cannot qualify as a ‘general’
statement of policy,” explaining that “[i]n the APA context, the term ‘general’
includes detailed requirements provided that they are of general as contrasted with
particular applicability.” Id. at 667. The key analytical point is not the level of
detail in which the agency sets forth its criteria, but rather – especially where “the
22
agency’s statutory discretion . . . is extremely broad” – that the “rule[] . . .
contemplate[s] that the administrator will exercise an informed discretion in the
various cases that arise.” Ibid.
That is the case here. Although the Deferred Action Memorandum provides
“detailed requirements” regarding which categories of individuals are eligible to
apply for deferred action, the Memorandum is explicit that these requirements “are
of general as contrasted with particular applicability” and that DHS “will exercise
an informed discretion in the various cases that arise.” Ibid.
It is especially pertinent to the APA analysis that the Deferred Action
Memorandum constitutes agency guidance in an area – DHS’s exercise of
prosecutorial discretion in the enforcement of federal immigration law – that is
strongly “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). See
Arizona, 132 S. Ct. at 2499 (“A principal feature of the removal system is the
broad discretion exercised by immigration officials.”). Johns, 653 F.2d at 889
(describing the Attorney General’s discretion in enforcing the immigration law as
“akin to his responsibility for enforcing criminal laws; in both situations, he has
discretion to refrain from instituting proceedings even though grounds for their
commencement may exist”). The Supreme Court has explained that the APA’s
exception for “agency action . . . committed to agency discretion by law” “is . . .
very narrow.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410
23
(1971) (quoting 5 U.S.C. § 701(a)(2)). However, what is determinative here is that
the breadth, Arizona, 132 S. Ct. at 2499, and general unreviewability, AADC, 525
U.S. at 484, of DHS’s exercise of its prosecutorial discretion to enforce the
immigration laws in the manner it sees fit – including its decisions to grant or deny
requests for deferred action – demonstrate that the Deferred Action Memorandum
does not have “the binding effect of law,” Chrysler Corp., 441 U.S. at 315, and,
therefore, is not a substantive rule subject to APA notice-and-comment
requirements.
CONCLUSION
The Court should reverse the district court’s decision granting a preliminary
injunction.
Respectfully submitted,
/s/ Matthew J. Ginsburg Lynn K. Rhinehart Harold C. Becker Matthew J. Ginsburg 815 Sixteenth Street, NW Washington, DC 20006 (202) 637-5397
24
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND
TYPE STYLE REQUIREMENTS
I hereby certify that the foregoing brief complies with the type-volume
limitation of Fed. R. App. P. 29(d) because this brief contains 5,474 words,
excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and
that the foregoing brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionately spaced typeface using Microsoft Word
2013 in 14-point Times New Roman font.
/s/ Matthew J. Ginsburg Matthew J. Ginsburg
CERTIFICATE OF SERVICE
I hereby certify that on April 6, 2015, the foregoing Brief of the American
Federation of Labor and Congress of Industrial Organizations as Amicus Curiae In
Support of Appellants was filed with the Clerk of the Court for the United States
Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system,
which constitutes service under the Court’s rules.
/s/ Matthew J. Ginsburg Matthew J. Ginsburg