Vidal v. Mayorkas

1

MARTIN JONATHAN BATALLA VIDAL, et al., Plaintiffs, v. ALEJANDRO MAYORKAS, et al., Defendants.

STATE OF NEW YORK, et al., Plaintiffs, v. JOSEPH BIDEN, et al., Defendants.

Nos. 16-CV-4756 (NGG) (VMS), 17-CV-5228 (NGG) (VMS)

United States District Court, E.D. New York

August 3, 2022

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.

Plaintiffs seek clarification of the court's prior orders in this litigation concerning Deferred Action for Childhood Arrivals. Now ten years after its creation, that policy remains in limbo after this and other courts have ordered successive vacaturs of the Department of Homeland Security's administrative attempts to first rescind and then reinstate it.

Plaintiffs ask this court to modify its previous remedial order to clarify (indeed, direct) what the government can and cannot do in light of a Texas district judge's recent order suspending much of the policy. Because Plaintiffs seek relief that sweeps well beyond the purpose of this court's prior injunction, their motion is DENIED.

I. BACKGROUND

The court assumes general familiarity with the Deferred Action for Childhood Arrivals (“DACA”) policy, the recission of which this court enjoined in 2018 when it found that Plaintiffs were “substantially likely to succeed on the merits of their claim that” the government's first attempt to end the policy was arbitrary and capricious, in violation of the Administrative Procedure Act (the “APA”). Batalla Vidal v. Nielsen, 279 F.Supp.3d 401, 420 (E.D.N.Y. 2018). The Supreme Court largely affirmed the reasoning of that decision in Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S.Ct. 1891 (2020). In response to the Court's decision, the Department of Homeland Security (“DHS”) tried again to rescind the policy, purportedly under the authority of then-Acting Secretary of Homeland Security Chad Wolf. This court found that Wolf, however, was not lawfully serving in that position, and so again vacated DHS's action. Batalla Vidal v. Wolf, 501 F.Supp.3d 117, 138 (E.D.N.Y. 2020). The court's order had the effect of leaving in place the previously enacted policy, the 2012 “Napolitano Memorandum” which first created DACA. The court also certified a class of people who were prima facie eligible for deferred action at the time of that memorandum, id. at 13738, and then, a few weeks later, went on to enter a limited remedial order to ensure that certain steps focused on notice and reporting would be taken in accordance with the reimplementation of the policy. Batalla Vidal v. Wolf, No. 16-CV-4756 (NGG) (VMS), 2020 WL 7121849, at *2 (E.D.N.Y. Dec. 4, 2020). The United States Citizenship and Immigration Services (“USCIS”) re-opened DACA and soon received more than 90,000 “firsttime” applications.

The reinstatement of the Napolitano Memorandum prompted a coalition of states to object to the administrative process originally used to implement DACA a decade earlier. Soon a Texas district judge agreed, embracing a range of theories including that DHS had violated the APA by failing to undergo notice and comment rulemaking; that DHS had not been delegated authority by Congress to adopt DACA; that even if it had, DHS's interpretation of the Immigration and Nationality Act would not warrant Chevron deference; and that, even though none of the parties had made the argument, the policy would “likely be found to be arbitrary and capricious” as well, for at least eight different possible reasons, though those were “just a few” and not “by any means . . . an exhaustive list.” Texas v. United States, 549 F.Supp.3d 572, 597-621, 623 (S.D. Tex. 2021) (“Texas I”). The judge, Andrew S. Hanen, ordered vacatur of the Napolitano Memorandum and a permanent injunction enjoining DHS “from administering the DACA program and from reimplementing DACA without compliance with the APA.” Texas v. United States, No. 18-CV-68, 2021 WL 3022434, at *2 (S.D. Tex. July 16, 2021) (“Texas II”). The doors to DACA were closed once more.

Nevertheless, the Texas court importantly found that “equity will not be served by a complete and immediate cessation of DACA,” and given the reliance interests of DACA recipients and this court's earlier order, it permitted DHS to “continue to accept applications as it has been ordered to do by the court in Batalla Vidal v. Wolf . . . but . . . not grant these applications until a further order of this Court, the Fifth Circuit Court of Appeals, or the United States Supreme Court.” Id. The court also temporarily stayed its order for DACA recipients who had already “obtained that status on or before the date of [its] injunction and DACA renewal applications for th[o]se existing recipients.” Id. In other words: DHS could accept but not grant new applications, and those already benefitting from DACA status could continue to renew it.

DHS appealed the district court's decision to the Fifth Circuit, which heard oral argument on July 6, 2022. See Texas v. United States, No. 21-40680 (5th Cir. 2021). In the meantime, in an effort to comply with the Texas II order and for reasons (it says) of resource allocation, DHS canceled pending biometrics appointments and apparently entirely ceased to perform the whole range of administrative steps it would otherwise take in processing first- time applications, including scanning and reviewing forms, verifying eligibility, running background checks, and checking travel history. (See Nolan Decl. (Dkt. 385-6) at ¶ 5-7, 11.)^[1] The sudden cessation caused some otherwise similarly situated pending applicants who had submitted their requests around the same time before the Texas II order - including members of the certified class in this case - but who received different appointment dates, to have their applications either granted just in time before the Texas II order, or be left to linger after it, now for more than a year. (See Ahmad Decl., Ex. A-B (Dkt 385-3) at ECF p. 2-9.)

II. PLAINTIFFS' MOTION TO MODIFY

In the motion before the court, Plaintiffs argue that DHS's response to the Texas II order “[m]isapprehend[s]” it and its relationship with this court's December 2020 remedial order. (Mot. (Dkt. 385-1) at 1.)

First, they claim that the two orders together create ambiguity about how DHS should adjudicate applications in the time between applying for DACA (as required by this court) and being granted DACA status (as prohibited by the Texas court). Plaintiffs ask this court to clear up the ambiguity by requiring the government to process applications “up to the point of decision.” (Id. at 1-2.)

Second, Plaintiffs claim that DHS has arbitrarily chosen to treat certain renewal applications - those where DACA status expired more than a year prior to reapplication, called “Extended Renewal Applicants” - as if they were first-time applications, effectively denying that group the protection of the partial Texas II stay. (Id. at 2.) Plaintiffs ask the court to direct DHS to process and continue to renew applications in that category on the grounds that this court's order required it, and the Texas court's order did not prohibit it. (Id.)

Finally, and more generally, Plaintiffs ask the court to equitably craft broader, interim relief that would provide pipeline DACA applicants with some stronger measure of legal certainty while the sprawling litigation concerning the policy drags on.

DHS responds that this court does not have the power to issue a modified injunction along the lines Plaintiffs seek because it would necessarily be overbroad: Plaintiffs already won “complete relief” on the claim the injunction addressed, i.e., the validity of Wolf's appointment. (Gov't Opp'n (Dkt. 385-5) at 711.) And even if it did have such authority, the government argues that the court should not exercise it because to do so would necessarily put this court in conflict with the Texas court. (Id. at 12-21.)

A. Legal Standard

Like its broad authority to enter an injunction, the court has inherent authority to modify one. “Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971). As when entering an injunction, the Supreme Court has recognized “the power of a court of equity to modify [it] in adaptation to changed conditions.” United States v. Swift & Co., 286 U.S. 106, 114 (1932). The authority to modify, like the power to enter, is “long-established, broad, and flexible.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 381 n.6 (1992). Although codified by Federal Rule of Civil Procedure 60, the court's power is inherent, and not displaced by the rule. See Sierra Club v. U.S. Army Corps of Eng'rs, 732 F.2d 253, 256 (2d Cir. 1984) (“Rule 60 . . . state[s] [the court's] inherent power as a rule”).

Modification of an injunction may work in either direction. In many cases, a plaintiff will seek relief from a previously entered injunction because its terms, over time and when unchanged, turn out to be “no longer equitable.” Fed.R.Civ.P. 60(b)(5). Courts likewise may order modifications of previously entered injunctions in order to give them continuing vitality. See, e.g., United States v. United Shoe Mach. Corp., 391 U.S. 244, 249 (1968) (permitting equitable modification “to achieve the purposes of the provisions of the decree, [rather than for a party] to escape their impact”).

Where a party seeks modification of an injunction under Rule 60, it must show “a significant change either in factual conditions or in law” that equitably justifies the change and generally was not “anticipated at the time” of the order. Rufo, 502 U.S. at 384-85 (considering Rule 60 in...