Cook Cnty. v. Wolf

498 F.Supp.3d 999

COOK COUNTY, ILLINOIS, an Illinois governmental entity, and Illinois Coalition for Immigrant and Refugee Rights, Inc., Plaintiffs,

v.Chad F. WOLF, in his official capacity as Acting Secretary of U.S. Department of Homeland Security, U.S. Department of Homeland Security, a federal agency, Kenneth T. Cuccinelli II, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services, and U.S. Citizenship and Immigration Services, a federal agency, Defendants.

19 C 6334

United States District Court, N.D. Illinois, Eastern Division.

Signed November 2, 2020

Andrea Marie Kovach, Gavin Michael Kearney, Militza Marie Pagan Lopez, Nolan Patrick Downey, Shriver Center On Poverty Law, Katherine Elizabeth Walz, Sargent Shriver National Center on Poverty Law, Caroline Goodwin Chapman, Meghan Patricia Carter, Nanshelmun Ruth Dashan, Legal Counsel for Health Justice, Marlow Elizabeth Svatek, Tacy Fletcher Flint, David Andrew Gordon, Sidley Austin LLP, Chicago, IL, Robert S. Velevis, Pro Hac Vice, Yvette Ostolaza, Sidley Austin LLP, Dallas, TX, for Plaintiffs.

Eric J. Soskin, Jason Cyrus Lynch, U.S. Department of Justice, Civil Division, Federal Programs, Kuntal Cholera, U.S. Department of Justice, Federal Programs Branch, Washington, DC, AUSA, United States Attorney's Office, Chicago, IL, for Defendant Chad F. Wolf.

Eric J. Soskin, Jason Cyrus Lynch, Joshua Kolsky, Kuntal Cholera, U.S. Department of Justice, Washington, DC, AUSA, United States Attorney's Office, Chicago, IL, for Defendants U.S. Department of Homeland Security, Kenneth T. Cuccinelli, U.S. Citizenshiup and Immigration Services.

MEMORANDUM OPINION AND ORDER

Gary Feinerman, United States District Judge

Cook County and Illinois Coalition for Immigrant and Refugee Rights, Inc. ("ICIRR") allege in this suit that the Department of Homeland Security's ("DHS") final rule, Inadmissibility on Public Charge Grounds , 84 Fed. Reg. 41,292 (Aug. 14, 2019) ("Final Rule" or "Rule"), is unlawful. Doc. 1. Plaintiffs claim that the Rule violates the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , because (1) it exceeds DHS's authority under the public charge provision of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(4)(A) ; (2) is not in accordance with law; and (3) is arbitrary and capricious. Doc. 1 at ¶¶ 140-169. ICIRR also claims that the Rule violates the equal protection component of the Fifth Amendment's Due Process Clause. Id. at ¶¶ 170-188.

On October 14, 2019, this court preliminarily enjoined DHS from enforcing the Final Rule in the State of Illinois, reasoning that the Rule likely violates the APA because it interprets the term "public charge" in a manner incompatible with its statutory meaning. Docs. 85, 87, 106 (reported at 417 F. Supp. 3d 1008 (N.D. Ill. 2019) ). DHS appealed. The Seventh Circuit denied DHS's motion to stay the preliminary injunction pending appeal, No. 19-3169 (7th Cir. Dec. 23, 2019), but the Supreme Court issued a stay, ––– U.S. ––––, 140 S. Ct. 681, 206 L.Ed.2d 142 (2020) (mem.). Meanwhile, DHS moved to dismiss the suit under Civil Rules 12(b)(1) and 12(b)(6). Doc. 124. This court denied DHS's motion and granted ICIRR's request for extra-record discovery on its equal protection claim. Docs. 149-150 (reported at 461 F. Supp. 3d 779 (N.D. Ill. 2020) ). And this court denied DHS's motion to certify under 28 U.S.C. § 1292(b) an interlocutory appeal of the denial of its motion to dismiss the equal protection claim. Docs. 183-184 (reported at 2020 WL 3975466 (N.D. Ill. July 14, 2020) ).

Shortly after this court denied DHS's motion to dismiss, the Seventh Circuit affirmed the preliminary injunction, reasoning that the Final Rule likely violates the APA. 962 F.3d 208 (7th Cir. 2020). Armed with the Seventh Circuit's decision, Plaintiffs move for summary judgment on their APA claims. Doc. 200. They seek a partial judgment under Civil Rule 54(b)—one that would vacate the Rule pursuant to the APA and allow continued litigation on ICIRR's equal protection claim. Docs. 217-218. Plaintiffs’ motion is granted. A Rule 54(b) judgment is entered, the Final Rule is vacated, DHS's request to stay the judgment is denied, and ICIRR's equal protection claim may proceed in this court.

Discussion

The pertinent background is set forth in this court's opinions and the Seventh Circuit's opinion, familiarity with which is assumed.

I. Plaintiffs’ Summary Judgment Motion

DHS forthrightly concedes that the Seventh Circuit's opinion affirming the preliminary injunction effectively resolves the APA claims on the merits in Plaintiffs’ favor. Doc. 209 at 7 ("Defendants do not dispute that the Seventh Circuit's legal conclusions concerning the Rule may justify summary judgment for Plaintiffs on their APA claims here."); Doc. 219 at 1 ("Plaintiffs have argued, and Defendants do not dispute, that the Court may grant Plaintiffs’ pending [summary judgment motion] in light of the Seventh Circuit's decision affirming the Court's preliminary injunction order."). That concession is appropriate given the Seventh Circuit's conclusion that the Final Rule is both substantively and procedurally defective under the APA. 962 F.3d at 222-33.

As for substance, the Seventh Circuit held in pertinent part as follows:

... Even assuming that the term "public charge" is ambiguous and thus might encompass more than institutionalization or primary, long-term dependence on cash benefits, it does violence to the English language and the statutory context to say that it covers a person who receives only de minimis benefits for a de minimis period of time. There is a floor inherent in the words "public charge," backed up by the weight of history. The term requires a degree of dependence that goes beyond temporary receipt of supplemental in-kind benefits from any type of public agency.

* * *

The ambiguity in the public-charge provision does not provide DHS unfettered discretion to redefine "public charge." We find that the interpretation reflected in the Rule falls outside the boundaries set by the statute.

Id. at 229.^* As for procedure, and in the alternative, the Seventh Circuit held that the Rule was "likely to fail the ‘arbitrary and capricious’ standard" due to "numerous unexplained serious flaws: DHS did not adequately consider the reliance interests of state and local governments; did not acknowledge or address the significant, predictable collateral consequences of the Rule; incorporated into the term ‘public charge’ an understanding of self-sufficiency that has no basis in the statute it supposedly interprets; and failed to address critical issues such as the relevance of the five-year waiting period for immigrant eligibility for most federal benefits." Id. at 233. Given these holdings, DHS is right to acknowledge that this court should grant summary judgment to Plaintiffs on their APA claims.

The parties disagree, however, about the appropriate remedy. Plaintiffs ask this court to vacate the Final Rule. Doc. 201 at 35-37. DHS contends that this court should vacate the Rule only insofar as it affects Plaintiffs, meaning that the vacatur should be limited to the State of Illinois. Doc. 209 at 27-29. Plaintiffs are correct.

The APA provides in pertinent part that "[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "[A]gency action" includes "the whole or a part of an agency rule." Id. § 551(13). By the APA's plain terms, then, an agency rule found unlawful in whole is not "set aside" just for certain plaintiffs or geographic areas; rather, the rule "shall" be "set aside," period. See Murphy v. Smith , ––– U.S. ––––, 138 S. Ct. 784, 787, 200 L.Ed.2d 75 (2018) ("[T]he word ‘shall’ usually creates a mandate, not a liberty, so the verb phrase ‘shall be applied’ tells us that the district court has some nondiscretionary duty to perform.") (quoting 42 U.S.C. § 1997e(d)(2) ); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach , 523 U.S. 26, 35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) ("[T]he mandatory ‘shall’ ... normally creates an obligation impervious to judicial discretion.") (quoting 28 U.S.C. § 1407(a) ).

Precedent confirms that the APA's text means what it says. For example, in Bowen v. Georgetown University Hospital , 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), the Supreme Court affirmed the D.C. Circuit's decision to set aside an agency rule concerning Medicaid reimbursement costs. Rather than limit relief to the "group of seven hospitals" that had filed suit, the Court declared the Rule "invalid." Id. at 207, 216, 109 S.Ct. 468. There is nothing unusual about this result, for that is simply what courts do when they determine that an agency action violates the APA. See, e.g. , DHS v. Regents of the Univ. of Cal. , ––– U.S. ––––, 140 S. Ct. 1891, 1901, 207 L.Ed.2d 353 (2020) (holding that DHS's rescission of the Deferred Action for Childhood Arrivals program "must be vacated" due to the agency's violation of the APA); Allentown Mack Sales & Serv., Inc. v. NLRB , 522 U.S. 359, 374, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998) ("Courts enforce [arbitrary and capricious review] with regularity when they set aside agency regulations which ... are not supported by the reasons that the agencies adduce."); H & H Tire Co. v. U.S. Dep't of Transp. , 471 F.2d 350, 355-56 (7th Cir. 1972) ("When an administrative decision is made without consideration of relevant factors it must be set aside.") (internal quotation marks omitted); Empire Health Found. ex rel. Valley Hosp. Med. Ctr. v. Azar , 958 F.3d 873, 886 (9th Cir. 2020) ("[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.") (internal quotation marks omitted); Nat'l Mining Ass'n...