Asylumworks v. Mayorkas

590 F.Supp.3d 11

ASYLUMWORKS, et al., Plaintiffs,

v.Alejandro N. MAYORKAS, Secretary, United States Department of Homeland Security, et al., Defendants.

Civil Action No. 20-cv-3815 (BAH)

United States District Court, District of Columbia.

Signed February 7, 2022

Keren Hart Zwick, National Immigrant Justice Center, Chicago, IL, Deepa Acharya, Quinn Emanuel Urquhart & Sullivan LLP, Washington, DC, Jamie L. Crook, California Dept. of Fair Employment and Housing, Elk Grove, CA, for Plaintiffs Asylumworks, Tahirih Justice Center, Community Legal Services in East Palo Alto, D.M.C., K.N.E, N.E.F., C. A., L.G.M., L.M.M.G, G.O.T., J.H.C., H.M.R., M.L.V., M.C.R., G.S.M., V.M.B., All Plaintiffs.

Keren Hart Zwick, National Immigrant Justice Center, Chicago, IL, Deepa Acharya, Quinn Emanuel Urquhart & Sullivan LLP, Washington, DC, for Plaintiffs U.O., C.H.A., P., R.P, L.E.J.J.* and M.C.J.J.*, through their next friend W.C.J.A., S., M.A.

Johnny Hillary Walker, III, DOJ-CIV, Federal Programs Branch, Christopher Charles Hair, Bradley Silverman, DOJ-USAO Washington, DC, for Defendants Department of Homeland Security, Alejandro J. Mayorkas, Joseph Maher.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge Seeking vacatur of two rules issued by the Department of Homeland Security ("DHS") that, as of August 2020, curtail asylum seekers’ access to employment authorization documents, plaintiffs—three nonprofit organizations and eighteen individual noncitizen asylum seekers—now move for summary judgment asserting that the challenged rules are void ab initio because, at the time of their promulgation, Chad Wolf was not lawfully serving as Acting Secretary of Homeland Security. See Pls.’ Mot. for Partial Summ. J., ECF No. 25; Pls.’ Mem. Supp. Mot. for Partial Summ. J. ("Pls.’ Mem."), at 2, 19, ECF No. 25-1. Specifically, plaintiffs maintain that Wolf's service as Acting Secretary from 2019 to 2021 contravened the Appointments Clause, Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. , Federal Vacancies Reform Act ("FVRA"), 5 U.S.C. § 3345 et seq. , Homeland Security Act ("HSA"), 6 U.S.C. § 101 et seq. , and internal DHS orders governing the agency's line of succession. Pls.’ Mem. at 1-3. Defendants have cross-moved for summary judgment, insisting on the legality of Wolf's appointment and otherwise asserting that any appointment defects as to one of the challenged rules were cured by current DHS Secretary Alejandro Mayorkas's ratification of that rule in May 2021. See Defs.’ Cross-Mot. for Partial Summ. J., ECF No. 28; Defs.’ Mem. Supp. Cross-Mot. for Summ. J. ("Defs.’ Mem."), at 1, 28, ECF No. 29.

Five other district courts across the country and another Judge on this Court have already concluded that Wolf's appointment as Acting Secretary was invalid. See Pangea Legal Servs. v. U.S. Dep't of Homeland Sec. , 512 F. Supp. 3d 966 (N.D. Cal. 2021) ; Batalla Vidal v. Wolf , 501 F. Supp. 3d 117 (E.D.N.Y. 2020) ; Nw. Imm. Rights. Proj. v. USCIS , 496 F. Supp. 3d 31 (D.D.C. 2020) ; Imm. Legal Res. Ctr. v. Wolf , 491 F. Supp. 3d 520 (N.D. Cal. 2020) ; Casa de Md., Inc. v. Wolf , 486 F. Supp. 3d 928 (D. Md. 2020) ; La Clinica De La Raza v. Trump , No. 19-cv-4980, 2020 WL 7053313 (N.D. Cal. Nov. 25, 2020).¹ In so doing, one of these courts, on September 20, 2020, preliminarily enjoined enforcement of aspects of the DHS employment authorization rules at issue here, but only as to members of the two organizational plaintiffs in that case. See Casa de Md., Inc. , 486 F. Supp. 3d at 973-74.

Finding no reason to depart from the reasoned holding of these other decisions, this Court likewise concludes that Wolf's ascension to the office of Acting Secretary was unlawful. As an issue of first impression, the Court further finds that Secretary Mayorkas's ratification of the so-called "Timeline Repeal Rule" in May 2021 did not cure the defects as to that rule caused by Wolf's unlawful tenure as Acting Secretary. Accordingly, for reasons set forth in detail below, plaintiffs’ motion for summary judgment is granted and defendants’ cross-motion for summary judgment is denied.

I. BACKGROUND

The statutory and regulatory scheme underlying the parties’ dispute is described below, followed by the relevant factual and procedural history. A fuller account of the DHS rules challenged by plaintiffs is set out in Asylumworks v. Mayorkas , 20-cv-3815 (BAH), 2021 WL 2227335, at *1-3 (D.D.C. June 1, 2021) (denying defendants’ motion to stay proceedings), but need not be repeated here in resolving the instant dispute regarding the legality of Wolf's appointment.

A. Statutory and Regulatory Background

Determining whether Wolf lawfully assumed the office of Acting Secretary of Homeland Security, and thus had the authority to issue the challenged rules, lies at the labyrinthine interplay of various statutes and regulations governing the agency's line of succession to the Office of Secretary, including the FVRA, HSA, and a series of internal DHS directives, which are memorialized in several revisions to a document known as Delegation No. 00106. These statutes and regulations are summarized below.

1. Federal Vacancies Reform Act

Enacted in 1998 as a response to perceived "threat[s] to the Senate's advice and consent power," NLRB v. SW Gen., Inc. , 580 U.S. 288, 137 S. Ct. 929, 936, 197 L.Ed.2d 263 (2017), the FVRA provides the default framework "for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency ... for which appointment is required to be made by the President, by and with the advice and consent of the Senate." 5 U.S.C. § 3347(a). As relevant here, the terms of the FVRA command who may assume an office in an acting capacity unless a separate statutory provision "(A) authorizes the ... head of an Executive department[ ] to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or (B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity." Id. § 3347(a)(1)(A)-(B) ; see also In re Grand Jury Investigation , 315 F. Supp. 3d 602, 664 (D.D.C. 2018) (noting that, if another statute designates an officer to assume a role in an "acting capacity," the FVRA is "not the exclusive means for temporarily authorizing" such an officer to fill that vacancy) (citations omitted).

Upon the resignation of an agency official "whose appointment to the office is required to be made by the President, by and with the advice and consent of the Senate," such as the Secretary of Homeland Security ("Secretary"), the FVRA dictates that "the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346." 5 U.S.C. § 3345(a). Section 3346 provides, in turn, that "the person serving as an acting officer ... under section 3345 may serve in the office ... for no longer than 210 days beginning on the date the vacancy occurs." Id. § 3346(a). "If an action is taken by a person who purports to act with the authority of an office to which the FVRA applies but who is not serving in accordance with the FVRA, that action ‘shall have no force or effect’ and ‘may not be ratified.’ " Batalla Vidal , 501 F. Supp. 3d at 128 (citing 5 U.S.C. § 3348(d) ); see also SW Gen. Inc. v. NLRB , 796 F.3d 67, 78 (D.C. Cir. 2015) ("The FVRA renders any action taken in violation of the statute void ab initio (citing 5 U.S.C. § 3348(d)(1)-(2) ).

2. Homeland Security Act

Operating as an adjunct to the FVRA's default framework, the HSA designates the Deputy Secretary of Homeland Security as "the Secretary's first assistant for purposes" of the FVRA and the Under Secretary for Management as "first assistant to the Deputy Secretary," also for FVRA purposes.

6 U.S.C. § 113(a)(1)(A), (F). Critically, the HSA also provides that "[n]otwithstanding [the FVRA], the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary." Id. § 113(g)(2) (emphasis added). Taken together, the FVRA and HSA thus create a succession order for DHS that flows from Secretary to Deputy Secretary to Under Secretary for Management, and from there to any "such other officers" designated by the Secretary pursuant to her authority under 6 U.S.C. § 113(g)(2).

3. DHS Delegation No. 106

Consistent with the FVRA and HSA, on December 15, 2016, then-DHS Secretary Jeh Johnson issued a revision to Delegation No. 00106 ("Delegation 106"), titled "DHS Orders of Succession and Delegations of Authorities for Named Positions." Pls.’ Mem., Ex. 2 (Delegation 106). At DHS, delegations "specify who is authorized to act on behalf of the Secretary" and are key components of the agency's "Directive Systems," which "is an official means of communicating to DHS employees the delegations of authority, policies, and procedures necessary for DHS to comply with public law, statutes, Executive Orders, regulations, and policies." Pls.’ Reply Supp. Mot. for Partial Summ. J. and Opp'n Defs.’ Cross-Mot. for Partial Summ. J. ("Pls.’ Opp'n"), Ex. 1 (Directive Number 112-01, Directives System), ECF No. 31. Such delegations form part of what scholars describe as "internal administrative law," or "measures generated by agencies to control their own actions and operations and aimed primarily at agency personnel." Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law , 115 MICH. L. REV. 1239, 1254 (2017).

As relevant here, Delegation 106 "created a bifurcated structure" to govern which DHS officials may assume the role of Acting Secretary when the Secretary dies, resigns, or becomes unavailable during a disaster or other emergency. Nw. Imm. Rights. Proj. , 496 F. Supp. 3d at 54. First , Section II.A of Delegation 106 established that, in "case of the Secretary's death, resignation, or inability to perform the functions of...