ADRMOPTERM
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:19-cv-04980-PJH

La Clinica De La Raza et al v. Trump et al Assigned to: Judge Phyllis J. Hamilton Relate Case Case: 4:19-cv-04717-PJH
Case in other court: Ninth Circuit Court of Appeals, 1917483
Cause: 05:551 Administrative Procedure Act

Date Filed: 08/16/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff La Clinica De La Raza

represented by Alvaro Moises Huerta National Immigration Law Center 3450 Wilshire Blvd 108-62 Los Angeles, CA 90010 United Sta 213-639-3600 Fax: 213-639-3911 Email: huerta@nilc.org ATTORNEY TO BE NOTICED

Antionette Deshun Dozier Western Center on Law and Poverty 3701 Wilshire Boulevard Suite 208 Los Angeles, CA 90010 213-487-7211 Email: adozier@wclp.org ATTORNEY TO BE NOTICED

David Michael Kane Western Center on Law and Poverty 3701 Wilshire Blvd. Suite 208 Los Angeles, CA 90010 213-235-2623 Email: dkane@wclp.org ATTORNEY TO BE NOTICED

Joanna Elise Cuevas Ingram National Immigration Law Center P.O. Box 170392 Brooklyn, NY 11217 213-377-5258 Email: cuevasingram@nilc.org ATTORNEY TO BE NOTICED
Kevin Lee Herrera National Immigration Law Center P.O. Box 32358 Chicago, IL 60632-0358 213-770-1325 Email: herrera@nilc.org TERMINATED: 02/09/2021 PRO HAC VICE
Laboni Amena Hoq Asian Pacific American Legal Center 1145 Wilshire Blvd 2nd Floor Los Angeles, CA 90017 213-977-7500 Fax: 213-977-7595 Email: labonihoq@hotmail.com TERMINATED: 10/31/2019
Linton Joaquin National Immigration Law Center 3450 Wilshire Blvd No. 108-62 Los Angeles, CA 90010 (213) 639-3900 Fax: (213) 639-3911 Email: joaquin@nilc.org TERMINATED: 08/17/2020
Martha Jane Perkins National Health Law Program, Inc. 200 NorthGreenboro Street Suite D-13 Carrboro, NC 20510 919-968-6308 ext. 101 Fax: 919-968-8855 Email: perkins@healthlaw.org ATTORNEY TO BE NOTICED

Max Samuel Wolson National Immigration Law Center P.O. Box 34573 Washington, DC 20043 United Sta (202) 216-0261 Fax: (202) 216-0266 Email: wolson@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mayra Beatriz Joachin National Immigration Law Center 3450 Wilshire Blvd 108-62 Los Angeles, CA 90010 United Sta 213-639-3900 Fax: 213-639-3911 Email: joachin@nilc.org ATTORNEY TO BE NOTICED
Michelle Young Cho Asian Americans Advancing JusticeLos Angeles 1145 Wilshire Blvd., 2nd Floor Los Angeles, CA 90017 213-977-7500 Email: mcho@advancingjusticela.org TERMINATED: 10/08/2019
Robert Dexter Newman , Jr. Western Center on Law and Poverty 3701 Wilshire Boulevard Suite 208 Los Angeles, CA 90010 213-487-7211 Ext. 19 Fax: 213-487-0242 Email: rnewman@wclp.org ATTORNEY TO BE NOTICED
Tanya Broder National Immigration Law Center 2030 Addison Street

Plaintiff
California Primary Care Association

Suite 420 Berkeley, CA 94704 (510) 663-8282 Email: broder@nilc.org ATTORNEY TO BE NOTICED
Yanin Senachai Asian Americans Advancing JusticeLA 1145 Wilshire Blvd. Los Angeles, CA 90017 213-977-7500 Email: ysenachai@advancingjusticela.org TERMINATED: 10/31/2019
Nicholas David Espiritu National Immigration Law Center National Immigration Law Center 3450 Wilshire Blvd #108-62 LOS ANGELES, CA 90010 United Sta 213-639-3900 Fax: 213-639-3911 Email: espiritu@nilc.org ATTORNEY TO BE NOTICED
represented by Alvaro Moises Huerta (See above for address) ATTORNEY TO BE NOTICED
Antionette Deshun Dozier (See above for address) ATTORNEY TO BE NOTICED
David Michael Kane (See above for address) ATTORNEY TO BE NOTICED
Joanna Elise Cuevas Ingram (See above for address) ATTORNEY TO BE NOTICED
Kevin Lee Herrera (See above for address)

Plaintiff Maternal and Child Health Access

TERMINATED: 02/09/2021 PRO HAC VICE
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019
Linton Joaquin (See above for address) TERMINATED: 08/17/2020
Martha Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Max Samuel Wolson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mayra Beatriz Joachin (See above for address) ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) TERMINATED: 10/08/2019
Robert Dexter Newman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Tanya Broder (See above for address) ATTORNEY TO BE NOTICED
Yanin Senachai (See above for address) TERMINATED: 10/31/2019
Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED
represented by Alvaro Moises Huerta

(See above for address) ATTORNEY TO BE NOTICED
Antionette Deshun Dozier (See above for address) ATTORNEY TO BE NOTICED
David Michael Kane (See above for address) ATTORNEY TO BE NOTICED
Joanna Elise Cuevas Ingram (See above for address) ATTORNEY TO BE NOTICED
Kevin Lee Herrera (See above for address) TERMINATED: 02/09/2021 PRO HAC VICE
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019
Linton Joaquin (See above for address) TERMINATED: 08/17/2020
Martha Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Max Samuel Wolson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mayra Beatriz Joachin (See above for address) ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) TERMINATED: 10/08/2019
Robert Dexter Newman , Jr.

Plaintiff Farmworker Justice

(See above for address) ATTORNEY TO BE NOTICED
Tanya Broder (See above for address) ATTORNEY TO BE NOTICED
Yanin Senachai (See above for address) TERMINATED: 10/31/2019
Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED
represented by Alvaro Moises Huerta (See above for address) ATTORNEY TO BE NOTICED
Antionette Deshun Dozier (See above for address) ATTORNEY TO BE NOTICED
David Michael Kane (See above for address) ATTORNEY TO BE NOTICED
Kevin Lee Herrera (See above for address) TERMINATED: 02/09/2021 PRO HAC VICE
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019
Linton Joaquin (See above for address) TERMINATED: 08/17/2020
Martha Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Mayra Beatriz Joachin

Plaintiff
Council on American Islamic Relations-California

(See above for address) ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) TERMINATED: 10/08/2019
Robert Dexter Newman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Tanya Broder (See above for address) ATTORNEY TO BE NOTICED
Yanin Senachai (See above for address) TERMINATED: 10/31/2019
Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED
represented by Alvaro Moises Huerta (See above for address) ATTORNEY TO BE NOTICED
Antionette Deshun Dozier (See above for address) ATTORNEY TO BE NOTICED
David Michael Kane (See above for address) ATTORNEY TO BE NOTICED
Joanna Elise Cuevas Ingram (See above for address) ATTORNEY TO BE NOTICED
Kevin Lee Herrera (See above for address) TERMINATED: 02/09/2021 PRO HAC VICE
Laboni Amena Hoq

Plaintiff African Communities Together

(See above for address) TERMINATED: 10/31/2019
Linton Joaquin (See above for address) TERMINATED: 08/17/2020
Martha Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Max Samuel Wolson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mayra Beatriz Joachin (See above for address) ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) TERMINATED: 10/08/2019
Robert Dexter Newman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Tanya Broder (See above for address) ATTORNEY TO BE NOTICED
Yanin Senachai (See above for address) TERMINATED: 10/31/2019
Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED
represented by Alvaro Moises Huerta (See above for address) ATTORNEY TO BE NOTICED
Antionette Deshun Dozier

(See above for address) ATTORNEY TO BE NOTICED
David Michael Kane (See above for address) ATTORNEY TO BE NOTICED
Joanna Elise Cuevas Ingram (See above for address) ATTORNEY TO BE NOTICED
Kevin Lee Herrera (See above for address) TERMINATED: 02/09/2021 PRO HAC VICE
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019
Linton Joaquin (See above for address) TERMINATED: 08/17/2020
Martha Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Max Samuel Wolson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mayra Beatriz Joachin (See above for address) ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) TERMINATED: 10/08/2019
Robert Dexter Newman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Tanya Broder

Plaintiff
Legal Aid Society of San Mateo County

(See above for address) ATTORNEY TO BE NOTICED
Yanin Senachai (See above for address) TERMINATED: 10/31/2019
Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED
represented by Alvaro Moises Huerta (See above for address) ATTORNEY TO BE NOTICED
Antionette Deshun Dozier (See above for address) ATTORNEY TO BE NOTICED
David Michael Kane (See above for address) ATTORNEY TO BE NOTICED
Joanna Elise Cuevas Ingram (See above for address) ATTORNEY TO BE NOTICED
Kevin Lee Herrera (See above for address) TERMINATED: 02/09/2021 PRO HAC VICE
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019
Linton Joaquin (See above for address) TERMINATED: 08/17/2020
Martha Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Max Samuel Wolson

Plaintiff Central American Resource Center

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mayra Beatriz Joachin (See above for address) ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) TERMINATED: 10/08/2019
Robert Dexter Newman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Tanya Broder (See above for address) ATTORNEY TO BE NOTICED
Yanin Senachai (See above for address) TERMINATED: 10/31/2019
Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED
represented by Alvaro Moises Huerta (See above for address) ATTORNEY TO BE NOTICED
Antionette Deshun Dozier (See above for address) ATTORNEY TO BE NOTICED
David Michael Kane (See above for address) ATTORNEY TO BE NOTICED
Joanna Elise Cuevas Ingram (See above for address) ATTORNEY TO BE NOTICED
Kevin Lee Herrera

Plaintiff

(See above for address) TERMINATED: 02/09/2021 PRO HAC VICE
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019
Linton Joaquin (See above for address) TERMINATED: 08/17/2020
Martha Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Max Samuel Wolson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mayra Beatriz Joachin (See above for address) ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) TERMINATED: 10/08/2019
Robert Dexter Newman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Tanya Broder (See above for address) ATTORNEY TO BE NOTICED
Yanin Senachai (See above for address) TERMINATED: 10/31/2019
Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED

Korean Resource Center

represented by Alvaro Moises Huerta (See above for address) ATTORNEY TO BE NOTICED
Antionette Deshun Dozier (See above for address) ATTORNEY TO BE NOTICED
David Michael Kane (See above for address) ATTORNEY TO BE NOTICED
Joanna Elise Cuevas Ingram (See above for address) ATTORNEY TO BE NOTICED
Kevin Lee Herrera (See above for address) TERMINATED: 02/09/2021 PRO HAC VICE
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019
Linton Joaquin (See above for address) TERMINATED: 08/17/2020
Martha Jane Perkins (See above for address) ATTORNEY TO BE NOTICED
Max Samuel Wolson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mayra Beatriz Joachin (See above for address) ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) TERMINATED: 10/08/2019

V.
Defendant
Donald J. Trump in his Official Capacity as President of the United States

Robert Dexter Newman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Tanya Broder (See above for address) ATTORNEY TO BE NOTICED
Yanin Senachai (See above for address) TERMINATED: 10/31/2019
Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Michael Kolsky Department of Justice Civil Division -- Federal Programs Branch 1100 L Street NW Washington, DC 20005 (202) 305-7664 Fax: (202) 616-8470 Email: joshua.kolsky@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Joseph Soskin US Dept of Justice Office of the Assistant Attorney General, Civil Division RFK Main Justice Building Room 3416 Washington, DC 20530 202-514-1500 Email: Eric.Soskin@usdoj.gov ATTORNEY TO BE NOTICED
Ethan Price Davis U.S. Department of Justice Civil Division 950 Pennsylvania Ave NW

Defendant United States Department of Homeland Security
Defendant United States Citizenship and Immigration Services
Defendant Kenneth T. Cuccinelli in his Official Capacity as Acting Director of U.S. Citizenship and Immigration Services

Room 3133 Washington, DC 20530 202-616-4171 Email: ethan.p.davis@usdoj.gov TERMINATED: 09/04/2020
represented by Joshua Michael Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Joseph Soskin (See above for address) ATTORNEY TO BE NOTICED
Ethan Price Davis (See above for address) TERMINATED: 09/04/2020
represented by Joshua Michael Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Joseph Soskin (See above for address) ATTORNEY TO BE NOTICED
Ethan Price Davis (See above for address) TERMINATED: 09/04/2020
represented by Joshua Michael Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Joseph Soskin (See above for address) ATTORNEY TO BE NOTICED
Ethan Price Davis (See above for address)

Defendant Kevin K. McAleenan in his Official Capacity as Acting Secretary of the Department of Homeland Security TERMINATED: 05/20/2020
Defendant Chad F. Wolf in his Official Capacity as Acting Secretary of the Department of Homeland Security
V. Movant Health Law Advocates, Inc.

TERMINATED: 09/04/2020
represented by Joshua Michael Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Joseph Soskin (See above for address) ATTORNEY TO BE NOTICED
Ethan Price Davis (See above for address) TERMINATED: 09/04/2020
represented by Joshua Michael Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan Price Davis (See above for address) TERMINATED: 09/04/2020
represented by Andrew Paul Cohen Health Law Advocates, Inc. Health Law Advocates, Inc. 1 Federal St., 5th Floor Boston, MA 02135 617-275-2891 Fax: 617-338-5242 Email: acohen@hla-inc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe healthlawadvocates One Federal Street Boston, MA 02110 617-275-2981

Fax: 617-338-5242 Email: jlowe@hla-inc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody Leiff Cabraser Heimann & Bernstein LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 415-956-1000 Fax: 415-956-1008 Email: kdermody@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit Lieff Cabraser et al 275 Battery St Fl 29 San Francisco, CA 94111-3339 415-956-1000 Fax: 415-956-1008 Email: mlevin@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet Health Law Advocates, Inc. 416 Huntington Ave. Boston, MA 02116 617-373-2019 Email: w.parmet@northeastern.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210 617-832-1737 Email: alondon@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer

Movant
Latino Coalition for a Healthy California

Foley Hoag LLP 1717 K St NW Suite 1200 Washington, DC 20006 United Sta 303-642-6391 Email: cspringer@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210-2600 617-832-1000 Email: enash@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210 617-832-1000 Email: kbuncedefilipp@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
California Pan-Ethnic Health Network

Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY

Movant
Korean Community Center of the East Bay

ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet

Movant
California Immigrant Policy Center

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sadik Harry Huseny Latham & Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111

Movant Health Care For All

415-391-0600 Fax: 415-395-8095 Email: sadik.huseny@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address)

Movant Community Catalyst

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Massachusetts Law Reform Institute

Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY

Movant
Northeastern University Center for Health Policy and Law

PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash

Movant Health in Justice Action Lab

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Public Health Law Watch

Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address)

Movant Northwest Health Law Advocates
Movant Charlotte Center for Legal Advocacy

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Kentucky Equal Justice Center

Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY

Movant Michigan Immigrant Rights Center

ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit

Movant Florida Health Justice Project

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Maine Immigrant Rights Coalition

Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address)

Movant New York Immigration Coalition

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Community Healthcare Network

Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE

Movant
Arab Community Center for Economic and Social Services

ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp

Movant Treatment Action Group

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Welcome Project
Movant Families USA

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address)

Movant UMass Memorial Health Care, Inc.

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Movant American Hospital Association

Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales Hogan Lovells US LLP 1999 Avenue of the Stars Ste. 1400 Los Angeles, CA 90067 310-785-4670 Email: michelle.roberts@hoganlovells.com

Movant America's Essential Hospitals
Movant Association of American Medical Colleges
Movant Catholic Health Association of the United States
Movant The Children's Hospital Association

ATTORNEY TO BE NOTICED
Sean Michael Marotta Hogan Lovells US LLP 555 Thirteenth Street, N.W. Washington, DC 20004 202-637-4881 Email: sean.marotta@hoganlovells.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED

Movant The Federation of American Hospitals
Movant Morton Rosenberg
Movant Oasis Legal Services

Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joseph Carl Cecere , Jr. Cecere PC 6035 McCommas Blvd. Dallas, TX 75206 United Sta (469) 600-9455 Email: ccecere@cecerepc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Temple Risher ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415-621-2493 Fax: 415-255-8437 Email: michael@risherlaw.com ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Tomoko Kuwahara Crowell and Moring LLP 515 S. Flower Street

Movant NHLP; FRAC; CLASP, et al.
Movant Asian Pacific Institute on GenderBased Violence

40th Floor Los Angeles, CA 90067 213-622-4750 Fax: 213-622-2690 Email: ekuwahara@crowell.com ATTORNEY TO BE NOTICED
represented by Victor H. Yu Keker Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111-1809 (415) 391-5400 Fax: (415) 397-7188 Email: vyu@keker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frances Cheston Thacher Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111 (415) 391-5400 Fax: (415) 397-7188 Email: cthacher@keker.com TERMINATED: 12/21/2020
Robert Adam Lauridsen Keker Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111-1809 415-391-5400 Fax: 415-397-7188 Email: alauridsen@keker.com ATTORNEY TO BE NOTICED
represented by Alexander Eugene Potente Clyde & Co US LLP 4 Embarcadero Suite 1350 San Francisco, CA 94111 415.781.7900 Fax: 415.781.2635 Email: alex.potente@clydeco.us LEAD ATTORNEY

Movant American Academy of Pediatrics
Movant American Medical Association
Movant American College of Physicians
Movant American Academy of Pediatrics, California

ATTORNEY TO BE NOTICED
represented by Susan Marie Krumplitsch Cooley LLP 3175 Hanover Street Palo Alto, CA 94304 650-843-500 Fax: 650-849-7400 Email: skrumplitsch@cooley.com TERMINATED: 05/20/2020 LEAD ATTORNEY
Priyamvada Arora Cooley LLP 3175 Hanover Street Palo Alto, Ca 94304 650-843-5244 Email: parora@cooley.com ATTORNEY TO BE NOTICED
represented by Susan Marie Krumplitsch (See above for address) TERMINATED: 05/20/2020 LEAD ATTORNEY
Priyamvada Arora (See above for address) ATTORNEY TO BE NOTICED
represented by Susan Marie Krumplitsch (See above for address) TERMINATED: 05/20/2020 LEAD ATTORNEY
Priyamvada Arora (See above for address) ATTORNEY TO BE NOTICED
represented by Susan Marie Krumplitsch (See above for address) TERMINATED: 05/20/2020 LEAD ATTORNEY

Movant Fiscal Policy Institute
Movant Presidents' Alliance on Higher Education and Immigration
Movant Economic Progress Institute
Movant Community Action Marin
Movant Child Care Law Center
Movant Boundless Immigration
Movant National Center for Law and Economic Justice

Priyamvada Arora (See above for address) ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Virginia Interfaith Center for Public Policy
Movant Kids Forward
Amicus Justice in Aging

represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christina Maria Assi Proskauer Rose LLP 2029 Century Park East Suite 2400 Los Angeles, CA 90067 310-284-4570 Fax: 3105572193 Email: cassi@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn Proskauer Rose LLP Eleven Times Square New York, NY 10036 (212) 969-3286 Fax: (212) 969-2900 Email: rhirschhorn@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny W Chan Justice in Aging 3660 Wilshire Blvd Ste 718 Los Angeles, CA 90010 213-375-3559 Email: dchan@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean Justice in Aging

Amicus American Society on Aging

1444 EYE ST. NW, SUITE 1100 WASHINGTON, DC 20005 United Sta 202-621-1038 Email: nkean@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters Proskauer Rose LLP 1001 PENNSYLVANIA AVE N.W. SUITE 600 SOUTH Washington, DC 20004 (202) 416-6828 Fax: (202) 416-6899 Email: omasters@proskauer.com TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey Justice In Aging 1114 I St. NW Suite 1100 Washington, DC 20005 202-683-1990 Email: rbailey@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean

Amicus Caring Across Generations
Amicus

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jewish Family Service of Los Angeles
Amicus The National Asian Pacific Center on Aging

represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus National Council on Aging
Amicus

Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

National Hispanic Council on Aging
Amicus MAZON

represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus PHI
Amicus

Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Deans, Chairs, and Scholars
Amicus American Public Health Association

represented by Edward Todd Waters Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Washington, DC 20036 202-466-8960 Fax: 202-293-8103 Email: ewaters@ftlf.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Ellen Doi Hanson Bridgett LLP 500 Capitol Mall, Suite 1500 Sacramento, CA 95814 (916) 491-3024 Fax: (916) 491-3079 Email: KDoi@hansonbridgett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher John Frisina Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Washington, DC 20036 202-466-8960 Fax: 202-293-8103 Email: cj.frisina@gmail.com TERMINATED: 10/17/2019
Phillip Anselm Escoriaza Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Washington, DC 20036 202-466-8960 Fax: 202-293-8103 Email: pescoriaza@ftlf.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Edward Todd Waters (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus American Academy of Nursing
Amicus Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 60 other amici curiae TERMINATED: 09/11/2019

Kathryn Ellen Doi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher John Frisina (See above for address) TERMINATED: 10/17/2019
Phillip Anselm Escoriaza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Edward Todd Waters (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Ellen Doi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher John Frisina (See above for address) TERMINATED: 10/17/2019
Phillip Anselm Escoriaza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Austin Joan Sutta Crowell and Moring LLP 3 Embarcadero Center 26th Fl.

Amicus Members of the Congressional Black Caucus
Amicus Members of the Congressional Hispanic Caucus Amicus Members of the Congressional Asian Pacific American Caucus
Amicus 9to5, National Association of Working Women
Amicus Anti-Defamation League
Amicus

San Francisco, CA 94111 415-986-2800 Email: asutta@crowell.com ATTORNEY TO BE NOTICED
Christopher Cadena 515 S. Flower St. 40th Floor Los Angeles, CA 90071 213-310-7956 Email: ccadena@crowell.com ATTORNEY TO BE NOTICED
represented by Nicholas A. Reider Goodwin Procter LLP Three Embarcadero Center San Francisco, CA 94111 (415) 733-6000 Fax: (415) 677-9041 Email: nreider@goodwinlaw.com ATTORNEY TO BE NOTICED
represented by Nicholas A. Reider (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas A. Reider (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Apna Ghar, Inc.
Amicus Asian & Latino Solidarity Alliance of Central Virginia
Amicus Asian American Advancing Justice - Asian Law Caucus
Amicus Asian Americans Advancing Justice-Atlanta
Amicus Asian Law Alliance
Amicus Asian Pacific American Legal Resource Center
Amicus Asian Pacific Community in Action
Amicus Asian Pacific Development Center

represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Association of Asian Pacific Community Health Organizations
Amicus California Asian Pacific Islander Legislative Caucus
Amicus Chicago Alliance Against Sexual Exploitation
Amicus Chinese American Planning Council
Amicus Chinese for Affirmative Action
Amicus Coalition on Human Needs
Amicus Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR)
Amicus Connecticut Women's Education and Legal Fund

represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus EMBARC
Amicus End Rape on Campus
Amicus GLBTQ Legal Advocates & Defenders (GLAD)
Amicus KWH Law Center for Social Justice and Change
Amicus If When How: Lawyering for Reproductive Justice
Amicus Equal Rights Advocates
Amicus Fred T. Korematsu Center for Law and Equality
Amicus MinKwon Center for Community Action
Amicus LatinoJustice PRLDEF

represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED

Amicus In the Public Interest
Amicus Girls Inc.
Amicus In Our Own Voice: National Black Women's Reproductive Justice Agenda Amicus Japanese American Citizens League (JACL)
Amicus National Advocates for Pregnant Women
Amicus National Immigration Justice Center
Amicus Oklahoma Call for Reproductive Justice
Amicus National Korean American Service & Education Consortium (NAKASEC) Amicus National Asian Pacific American Women's Forum (NAPAWF)

represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED

Amicus National Coalition for Asian Pacific American Community Development (National CAPACD) Amicus National Crittenton
Amicus National Partnership for Women & Families
Amicus OCA - Asian Pacific American Advocates
Amicus Reproductive Health Access Project
Amicus Southeast Asia Resource Action Center (SEARAC)
Amicus Services, Immigrant Rights & Education Network (SIREN)
Amicus OneAmerica
Amicus Planned Parenthood Federation of America
Amicus

represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED

Transgender Law Center
Amicus Sikh American Legal Defense and Education Fund (SALDEF
Amicus Population Connection
Amicus Sexuality Information and Education Council of the United States (SIECUS) Amicus South Asian Americans Leading Together (SAALT)
Amicus Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, and Men of Reform Judaism Amicus Washington Lawyers' Committee for Civil Rights and Urban Affairs
Amicus Women's Bar Association of the District of Columbia
Amicus Women's Bar Association of the State of New York

represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY

Amicus The Women's Law Center of Maryland
Amicus Women Lawyers on Guard Inc.
Amicus Women's Law Project
Amicus National Immigrant Women's Advocacy Project
Amicus Center on Reproductive Rights and Justice at Berkeley School of Law

ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/16/2019
08/16/2019 08/16/2019

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 0971-13617966.). Filed byAFRICAN COMMUNITIES TOGETHER, Maternal and Child Health Access, Legal Aid Society of San Mateo County, Korean Resource Center, California Primary Care Association, Central American Resource Center, Farmworker Justice, La Clinica De La Raza, Council on American Islamic Relations-California. (Attachments: # 1 Civil Cover Sheet)(Espiritu, Nicholas) (Filed on 8/16/2019) (Entered: 08/16/2019)
2 Proposed Summons. (Espiritu, Nicholas) (Filed on 8/16/2019) (Entered: 08/16/2019)
3 Case assigned to Magistrate Judge Jacqueline Scott Corley.

08/16/2019
08/19/2019
08/19/2019 08/19/2019 08/19/2019 08/19/2019 08/19/2019 08/19/2019 08/19/2019

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 8/30/2019. (as, COURT STAFF) (Filed on 8/16/2019) (Entered: 08/16/2019)
4 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by AFRICAN COMMUNITIES TOGETHER, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access.. (Espiritu, Nicholas) (Filed on 8/16/2019) (Entered: 08/16/2019)
5 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 11/7/2019. Initial Case Management Conference set for 11/14/2019 01:30 PM in San Francisco, Courtroom F, 15th Floor. (msrS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
6 Summons Issued as to Donald J. Trump. (msrS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
7 Summons Issued as to United States Department of Homeland Security. (msrS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
8 Summons Issued as to United States Citizenship and Immigration Services. (msrS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
9 Summons Issued as to Kenneth T. Cuccinelli. (msrS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
10 Summons Issued as to Kevin K. McAleenan. (msrS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
11 NOTICE of Appearance by Martha Jane Perkins (Perkins, Martha) (Filed on 8/19/2019) (Entered: 08/19/2019)
12 NOTICE of Appearance by Linton Joaquin (Joaquin, Linton) (Filed on 8/19/2019) (Entered: 08/19/2019)

08/19/2019 08/19/2019 08/19/2019 08/19/2019 08/20/2019
08/20/2019
08/20/2019 08/21/2019 08/21/2019 08/21/2019

13 NOTICE of Appearance by Alvaro Moises Huerta (Huerta, Alvaro) (Filed on 8/19/2019) (Entered: 08/19/2019)
14 NOTICE of Appearance by Mayra Beatriz Joachin (Joachin, Mayra) (Filed on 8/19/2019) (Entered: 08/19/2019)
15 NOTICE of Appearance by Tanya Broder (Broder, Tanya) (Filed on 8/19/2019) (Entered: 08/19/2019)
16 NOTICE of Appearance by Joanna Elise Cuevas Ingram (Cuevas Ingram, Joanna) (Filed on 8/19/2019) (Entered: 08/19/2019)
17 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.
ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (ahm, COURT STAFF) (Filed on 8/20/2019) (Entered: 08/20/2019)
18 MOTION for leave to appear in Pro Hac Vice on behalf of Max S. Wolson ( Filing fee $ 310, receipt number 0971-13627809.) filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Certificate of Good Standing)(Wolson, Max) (Filed on 8/20/2019) (Entered: 08/20/2019)
19 NOTICE of Appearance by David Michael Kane (Kane, David) (Filed on 8/20/2019) (Entered: 08/20/2019)
20 NOTICE of Appearance by Laboni Amena Hoq (Hoq, Laboni) (Filed on 8/21/2019) (Entered: 08/21/2019)
21 NOTICE of Appearance by Michelle Young Cho (Cho, Michelle) (Filed on 8/21/2019) (Entered: 08/21/2019)
22 NOTICE of Appearance by Yanin Senachai (Senachai, Yanin) (Filed on 8/21/2019) (Entered: 08/21/2019)

08/21/2019 08/21/2019 08/22/2019
08/22/2019 08/23/2019 08/27/2019 08/29/2019

23 ORDER, Case Reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Haywood S Gilliam, Jr for all further proceedings. Magistrate Judge Jacqueline Scott Corley no longer assigned to the case.. Signed by The Clerk on 8/21/19. (haS, COURT STAFF) (Filed on 8/21/2019) (Entered: 08/21/2019)
24 NOTICE of Appearance by Antionette Deshun Dozier (Dozier, Antionette) (Filed on 8/21/2019) (Entered: 08/21/2019)
25 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE FOR REASSIGNED CIVIL CASE. Notice is hereby given that a Case Management Conference has been set for November 19, 2019, before Judge Haywood S. Gilliam, Jr., at 2:00 p.m., in Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA. Case Management Statement due by November 12, 2019. Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. All future filings should reflect the case number as 4:19-cv-04980-HSG. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Filed on 8/22/2019) (Entered: 08/22/2019)
26 Judicial Referral for Purpose of Determining Relationship of Cases re 19-cv- 4717-PJH. Signed by Judge Haywood S. Gilliam, Jr. on 8/22/2019. (ndrS, COURT STAFF) (Filed on 8/22/2019) (Entered: 08/22/2019)
27 ORDER by Judge Haywood S. Gilliam, Jr. Granting 18 Motion for Pro Hac Vice as to Max S. Wolson. (ndrS, COURT STAFF) (Filed on 8/23/2019) (Entered: 08/23/2019)
28 ORDER DIRECTING PARTIES TO FILE RESPONSE TO 26 JUDICIAL REFERRAL FOR PURPOSE OF DETERMINING RELATIONSHIP OF CASES. Responses due by 8/29/2019.Signed by Judge Haywood S. Gilliam, Jr. on 8/27/2019. (ndrS, COURT STAFF) (Filed on 8/27/2019) (Entered: 08/27/2019)
29 ADMINISTRATIVE MOTION Motion To Exceed Applicable Page Limitations For Plaintiffs Motion For Preliminary Injunction filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. Responses due by 9/3/2019. (Attachments: # 1 Declaration Declaration Of Mayra Joachin In Support Of Plaintiffs Administrative Motion To Exceed Applicable Page Limitations For Plaintiffs Motion For Preliminary Injunction, # 2 Proposed Order Proposed Order In Support Of Plaintiffs Administrative Motion To Exceed Applicable Page Limitations For Plaintiffs Motion For Preliminary Injunction)(Espiritu, Nicholas) (Filed on 8/29/2019) (Entered: 08/29/2019)

08/29/2019
08/30/2019 08/30/2019 08/30/2019 08/30/2019 09/04/2019

30 RESPONSE to 28 Order in Support of 26 Judicial Referral for Purpose of Determining Relationship of Cases by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Espiritu, Nicholas) (Filed on 8/29/2019) Modified on 8/30/2019 (jjbS, COURT STAFF). (Entered: 08/29/2019)
31 ORDER RELATING CASE. Case C-19-4980 is related to case C-194717-PJH. Case reassigned to Judge Phyllis J. Hamilton for all further proceedings. Judge Haywood S Gilliam, Jr no longer assigned to the case. Signed by Judge Phyllis J. Hamilton on 8/30/19. (kcS, COURT STAFF) (Filed on 8/30/2019) (Entered: 08/30/2019)
32 ORDER SETTING CASE MANAGEMENT CONFERENCE. Joint Case Management Statement due by 11/7/2019. Initial Case Management Conference set for 11/14/2019 at 02:00 PM in Oakland, Courtroom 3, 3rd Floor. Signed by Judge Phyllis J. Hamilton on 8/30/19. (kcS, COURT STAFF) (Filed on 8/30/2019) (Entered: 08/30/2019)
33 ORDER GRANTING PLAINTIFFS' ADMINISTRATIVE MOTION TO EXCEED APPLICABLE PAGE LIMITATIONS FOR PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION by Judge Phyllis J. Hamilton granting 29 Administrative Motion. (kcS, COURT STAFF) (Filed on 8/30/2019) (Entered: 08/30/2019)
34 SUMMONS Returned Executed by African Communities Together, Maternal and Child Health Access, Legal Aid Society of San Mateo County, Korean Resource Center, California Primary Care Association, Central American Resource Center, Farmworker Justice, La Clinica De La Raza, Council on American Islamic Relations-California. All Defendants. (Espiritu, Nicholas) (Filed on 8/30/2019) (Entered: 08/30/2019)
35 MOTION for Preliminary Injunction filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. Responses due by 9/18/2019. Replies due by 9/25/2019. (Attachments: # 1 Proposed Order, # 2 Declaration Amaha Kassa, # 3 Declaration Castellano-Garcia, # 4 Declaration Daniel Sharp, # 5 Declaration Jane Garcia, # 6 Declaration Bruce Goldstein, # 7 Declaration Hussam Ayloush, # 8 Declaration Jenny Seon, # 9 Declaration Lynn Kersey, # 10 Declaration Hope Nakamura, # 11 Declaration Thu Quach)(Espiritu, Nicholas) (Filed on 9/4/2019)

09/04/2019
09/04/2019 09/04/2019 09/04/2019 09/04/2019

(Entered: 09/04/2019)
36 Declaration of Michelle Y. Cho in Support of 35 MOTION for Preliminary Injunction filed byAfrican Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC)(Related document(s) 35 ) (Espiritu, Nicholas) (Filed on 9/4/2019) (Entered: 09/04/2019)
37 Declaration of Leighton Ku, Ph.D. in Support of 35 MOTION for Preliminary Injunction filed byAfrican Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Exhibit A)(Related document(s) 35 ) (Espiritu, Nicholas) (Filed on 9/4/2019) (Entered: 09/04/2019)
38 Declaration of Danilo Trisi, Ph.D. in Support of 35 MOTION for Preliminary Injunction filed byAfrican Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Exhibit A)(Related document(s) 35 ) (Espiritu, Nicholas) (Filed on 9/4/2019) (Entered: 09/04/2019)
39 Declaration of Jennifer L. Van Hook in Support of 35 MOTION for Preliminary Injunction filed byAfrican Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 35 ) (Espiritu, Nicholas) (Filed on 9/4/2019) (Entered: 09/04/2019)
40 CERTIFICATE OF SERVICE by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San

09/04/2019 09/04/2019 09/04/2019 09/04/2019 09/09/2019 09/09/2019
09/09/2019 09/09/2019
09/09/2019

Mateo County, Maternal and Child Health Access re 36 Declaration in Support,,,, 39 Declaration in Support,, 37 Declaration in Support,, 38 Declaration in Support,, 35 MOTION for Preliminary Injunction (Espiritu, Nicholas) (Filed on 9/4/2019) (Entered: 09/04/2019)
Set Deadlines as to 35 MOTION for Preliminary Injunction . Motion Hearing set for 10/9/2019 at 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. (kcS, COURT STAFF) (Filed on 9/3/2019) (Entered: 09/04/2019)
41 ORDER RESCHEDULING HEARING DATE AND SETTING BRIEFING SCHEDULE. Signed by Judge Phyllis J. Hamilton on 9/4/2019. (pjhlc1S, COURT STAFF) (Filed on 9/4/2019) (Entered: 09/04/2019)
42 NOTICE of Appearance by Joshua Michael Kolsky (Kolsky, Joshua) (Filed on 9/4/2019) (Entered: 09/04/2019)
Set/Reset Deadlines as to 35 MOTION for Preliminary Injunction . Opposition due by 9/16/2019. Reply due by 9/20/2019. Motion Hearing set for 10/2/2019 at 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. (kcS, COURT STAFF) (Filed on 9/4/2019) (Entered: 09/09/2019)
43 NOTICE of Appearance by Christina Maria Assi (Assi, Christina) (Filed on 9/9/2019) (Entered: 09/09/2019)
44 MOTION for leave to appear in Pro Hac Vice of Russell Hirschhorn ( Filing fee $ 310, receipt number 0971-13686925.) filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Hirschhorn, Russell) (Filed on 9/9/2019) (Entered: 09/09/2019)
45 MOTION for leave to appear in Pro Hac Vice re: Christopher J. Frisina ( Filing fee $ 310, receipt number 0971-13687023.) filed by Deans, Chairs, and Scholars, American Public Health Association, American Academy of Nursing. (Frisina, Christopher) (Filed on 9/9/2019) Modified on 9/10/2019 (ajsS, COURT STAFF). (Entered: 09/09/2019)
46 ***DISREGARD, ENTERED IN ERROR. SEE DOCKET 54 FOR CORRECTED ENTRY*** MOTION for Leave to Appear by Kathryn E. Doi filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. (Frisina, Christopher) (Filed on 9/9/2019) Modified on 9/10/2019 (kcS, COURT STAFF). (Entered: 09/09/2019)
47 MOTION for leave to appear in Pro Hac Vice by Owen Masters ( Filing fee $ 310, receipt number 0971-13687072.) filed by American Society on

09/09/2019 09/09/2019 09/09/2019 09/09/2019

Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Masters, Owen) (Filed on 9/9/2019) (Entered: 09/09/2019)
48 MOTION for leave to appear in Pro Hac Vice re: Phillip A. Escoriaza ( Filing fee $ 310, receipt number 0971-13687099.) filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. (Escoriaza, Phillip) (Filed on 9/9/2019) Modified on 9/10/2019 (ajsS, COURT STAFF). (Entered: 09/09/2019)
49 MOTION for leave to appear in Pro Hac Vice re: Edward T. Waters ( Filing fee $ 310, receipt number 0971-13687118.) filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. (Waters, Edward) (Filed on 9/9/2019) Modified on 9/10/2019 (ajsS, COURT STAFF). (Entered: 09/09/2019)
50 Certificate of Interested Entities by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars (Waters, Edward) (Filed on 9/9/2019) (Entered: 09/09/2019)
51 MOTION to File Amicus Curiae Brief filed by American Academy of Nursing, American Public Health Association, Deans - Ayman ElMohandes, MBBCh, MD, MPH, Barbara K. Rimer, DrPH, MPH, Boris Lushniak, MD, MPH, G. Thomas Chandler, MS, PhD, Hilary Godwin, PhD, Karen Drenkard, PhD, RN, NEA-BC, FAAN, Laura A. Siminoff, PhD, Linda P. Fried, MD, MPH, Lynn R. Goldman, MD, MPH, MS, Mark A. Schuster, MD, PhD, Michael C. Lu, MD, MS, MPH, Pamela R. Jeffries, PhD, RN, FAAN, ANEF, FSSH, Paula Lantz, PhD, Sandro Galea, MD, DrPH, Sherry Glied, PhD, MA, Sten H. Vermund, MD, PhD, Thomas E. Burroughs, PhD, MS, MA; Chairs - Alan G. Wasserman, MD, MACP, Becky Slifkin, PhD, Claire D. Brindis, DrPH, Jane Thorpe, JD, Karen A. McDonnell, PhD; and Scholars - Alan B. Cohen, Sc.D., Allison K. Hoffman, JD, Amita N. Vyas, PhD, MHS, Andy Schneider, JD, Benjamin D. Sommers, MD, PhD, Colleen M. Grogan, PhD, Daniel Skinner, PhD, David M. Frankford, JD, David Michaels, PhD, MPH, Diana J. Mason, RN, PhD, FAAN, Dora L. Hughes, MD, MPH, Harold Jillian Catalanotti, MD, MPH, FACP, Joan Alker, Jonathan Oberlander, PhD, Julia Zoe Beckerman, JD, MPH, Katherine Horton, RN, MPH, JD, Katherine Swartz, PhD, Krista M. Perreira, PhD, Lynn A. Blewett, PhD, MA, Mark A. Peterson, PhD, Maureen Byrnes, MPA, Melissa M. Goldstein, JD, Michael K. Gusmano, PhD, Naomi Seiler, JD, Neal Halfon, MD, MPH, Nicole Huberfeld, JD, Pam Silberman, JD, DrPH, Rand E. Rosenblatt, JD, Sara Rosenbaum, JD, Sylvia A. Law, JD, Timothy Stoltzfus Jost, JD, Timothy M. Westmoreland, JD, Wendy K. Mariner, JD, LLM, MPH, William B. Borden, MD, FACC, FAHA. Responses due by 9/23/2019. Replies due by 9/30/2019. (Attachments: # 1 Proposed Amici Brief, # 2 Proposed Order)(Waters, Edward) (Filed on 9/9/2019) Modified on

09/09/2019
09/09/2019
09/09/2019 09/09/2019
09/09/2019
09/10/2019 09/10/2019 09/10/2019 09/10/2019 09/10/2019

9/26/2019 (kcS, COURT STAFF). (Entered: 09/09/2019)
52 MOTION for leave to appear in Pro Hac Vice by Denny Chan ( Filing fee $ 310, receipt number 0971-13687357.) filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Chan, Denny) (Filed on 9/9/2019) (Entered: 09/09/2019)
53 MOTION for leave to appear in Pro Hac Vice by Regan Bailey ( Filing fee $ 310, receipt number 0971-13687573.) filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Bailey, Regan) (Filed on 9/9/2019) (Entered: 09/09/2019)
54 NOTICE of Appearance by Kathryn E. Doi. (Frisina, Christopher) (Filed on 9/9/2019) (Entered: 09/09/2019)
55 MOTION for leave to appear in Pro Hac Vice by Natalie Kean ( Filing fee $ 310, receipt number 0971-13687736.) filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Kean, Natalie) (Filed on 9/9/2019) (Entered: 09/09/2019)
56 MOTION for Leave to File Brief of Amici Curiae filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Attachments: # 1 Proposed Order, # 2 Proposed Amicus Curiae Brief)(Assi, Christina) (Filed on 9/9/2019) (Entered: 09/09/2019)
57 NOTICE by Deans, Chairs, and Scholars of Additional Amici (Frisina, Christopher) (Filed on 9/10/2019) (Entered: 09/10/2019)
58 ORDER by Judge Phyllis J. Hamilton granting 44 Motion for Pro Hac Vice as to Russell L. Hirschhorn. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
59 ORDER by Judge Phyllis J. Hamilton granting 45 Motion for Pro Hac Vice as to Christopher J. Frisina. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
60 ORDER by Judge Phyllis J. Hamilton granting 47 Motion for Pro Hac Vice as to Owen T. Masters. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
61 ORDER by Judge Phyllis J. Hamilton granting 48 Motion for Pro Hac Vice as to Phillip A. Escoriaza. (kcS, COURT STAFF) (Filed on

09/10/2019 09/10/2019 09/10/2019 09/10/2019 09/10/2019 09/10/2019 09/10/2019 09/10/2019 09/10/2019
09/10/2019

9/10/2019) (Entered: 09/10/2019)
62 ORDER by Judge Phyllis J. Hamilton granting 49 Motion for Pro Hac Vice as to Edward T. Waters. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
63 ORDER by Judge Phyllis J. Hamilton granting 52 Motion for Pro Hac Vice as to Denny Chan. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
64 ORDER by Judge Phyllis J. Hamilton granting 53 Motion for Pro Hac Vice as to Regan Bailey. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
65 ORDER by Judge Phyllis J. Hamilton granting 55 Motion for Pro Hac Vice as to Natalie Kean. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
66 NOTICE of Appearance by Robert Dexter Newman, Jr (Newman, Robert) (Filed on 9/10/2019) (Entered: 09/10/2019)
67 Amicus Curiae APPEARANCE entered by Emily Tomoko Kuwahara on behalf of Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 60 other amici curiae. (Kuwahara, Emily) (Filed on 9/10/2019) (Entered: 09/10/2019)
68 Amicus Curiae APPEARANCE entered by Christopher Cadena on behalf of Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 60 other amici curiae. (Cadena, Christopher) (Filed on 9/10/2019) (Entered: 09/10/2019)
69 Amicus Curiae APPEARANCE entered by Austin Joan Sutta on behalf of Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 60 other amici curiae. (Sutta, Austin) (Filed on 9/10/2019) (Entered: 09/10/2019)
70 Unopposed MOTION for Leave to File Brief of Amici Curiae filed by Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 60 other amici curiae. (Attachments: # 1 Exhibit A - - Memorandum of Law Of Amici Curiae Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 60 other amici curiae, # 2 Proposed Order)(Kuwahara, Emily) (Filed on 9/10/2019) Modified on 9/11/2019 (kcS, COURT STAFF). (Entered: 09/10/2019)
71 MOTION for Leave to File Brief of Amici Curiae filed by Members of the

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09/11/2019

Congressional Black Caucus - CBC (Rep. Karen Bass, Rep. Yvette D. Clarke, Rep. Emanuel Cleaver, Rep. Bonnie Watson Coleman, Rep. Danny K. Davis, Rep. Val Demings, Rep. Steven Horsford, Rep. Henry C. Hank Johnson, Jr., Rep. Eleanor Holmes Norton, Rep. Lisa Blunt Rochester, Rep. Robert C. Bobby Scott, Rep. Bennie Thompson); Members of the Congressional Hispanic Caucus - CHC (Rep. Nanette Diaz Barragn, Rep. Salud O. Carbajal, Rep. Joaquin Castro, Rep. J. Luis Correa, Rep. Veronica Escobar, Rep. Adriano Espaillat, Rep. Ruben Gallego, Rep. Jess G. Chuy Garca, Rep. Jimmy Gomez, Rep. Sylvia R. Garcia, Rep. Ral M. Grijalva, Rep. Debbie Mucarsel-Powell, Rep. Grace F. Napolitano, Rep. Alexandria Ocasio-Cortez, Rep. Lucille Roybal-Allard, Rep. Gregorio Kilili Camacho Sablan, Rep. Linda T. Snchez, Rep. Jos E. Serrano, Rep. Albio Sires, Rep. Darren Soto, Rep. Norma J. Torres, Rep. Juan Vargas, Rep. Nydia M. Velzquez); Members of the Congressional Asian Pacific American Caucus - CAPAC (Rep. Judy Chu, Rep. Bonnie Watson Coleman, Rep. TJ Cox, Rep. Anna G. Eshoo, Rep. Al Green, Rep. Deb Haaland, Rep. Pramila Jayapal, Rep. Barbara Lee, Rep. Ted W. Lieu, Rep. Grace Meng, Rep. Grace F. Napolitano, Rep. Gregorio Kilili Camacho Sablan, Rep. Mark Takano, Rep. Juan Vargas, Rep. Linda T. Sanchez, Rep. Nydia M. Velzquez). (Attachments: # 1 Proposed Order, # 2 Proposed Amicus Curiae Brief)(Reider, Nicholas) (Filed on 9/10/2019) Modified on 9/26/2019 (kcS, COURT STAFF). (Entered: 09/10/2019)
72 ORDER GRANTING MOTIONS FOR LEAVE TO FILE AMICI BRIEFS. (pjhlc1S, COURT STAFF) (Filed on 9/11/2019) (Entered: 09/11/2019)
73 NOTICE of Appearance by Kelly M. Dermody (Dermody, Kelly) (Filed on 9/11/2019) (Entered: 09/11/2019)
74 NOTICE of Appearance by Michael Ian Levin-Gesundheit (LevinGesundheit, Michael) (Filed on 9/11/2019) (Entered: 09/11/2019)
75 NOTICE of Appearance by Justin Jonathan Lowe (Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
76 MOTION to File Amicus Curiae Brief filed by American Hospital Association, America's Essential Hospitals, Association of American Medical Colleges, Catholic Health Association of the United States, The Children's Hospital Association, The Federation of American Hospitals. Responses due by 9/25/2019. Replies due by 10/2/2019. (Attachments: # 1 [Proposed] Amici Curiae Brief, # 2 [Proposed] Order)(Gonzales, Michelle) (Filed on 9/11/2019) (Entered: 09/11/2019)
77 MOTION for leave to appear in Pro Hac Vice re: Sean Marotta ( Filing fee $ 310, receipt number 0971-13695062.) filed by America's Essential Hospitals, American Hospital Association, Association of American Medical Colleges, Catholic Health Association of the United States, The Children's Hospital Association, The Federation of American Hospitals.

09/11/2019
09/11/2019
09/11/2019 09/11/2019 09/11/2019

(Marotta, Sean) (Filed on 9/11/2019) Modified on 9/12/2019 (ajsS, COURT STAFF). (Entered: 09/11/2019)
78 MOTION for leave to appear in Pro Hac Vice of Wendy Parmet ( Filing fee $ 310, receipt number 0971-13695187.) filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
79 MOTION for leave to appear in Pro Hac Vice of Andrew Cohen ( Filing fee $ 310, receipt number 26K4N402.) Filing fee previously paid on 9/11/2019 filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
80 ***DISREGARD, INCORRECT ATTACHMENT. CORRECTED MOTION TO BE FILED*** MOTION for leave to appear in Pro Hac Vice Re: J. Carl Cecere ( Filing fee $ 310, receipt number 0971-13695959.) filed by Morton Rosenberg. (Attachments: # 1 Certificate/Proof of Service Certificate of Good Standing)(Cecere, Joseph) (Filed on 9/11/2019) Modified on 9/12/2019 (ajsS, COURT STAFF). Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/11/2019)
81 NOTICE of Appearance by Joseph Carl Cecere, Jr (Cecere, Joseph) (Filed on 9/11/2019) (Entered: 09/11/2019)
82 NOTICE of Appearance by Michael Temple Risher (Risher, Michael) (Filed on 9/11/2019) (Entered: 09/11/2019)

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09/11/2019 09/11/2019
09/12/2019

83 MOTION for leave to appear in Pro Hac Vice re: Christian Springer ( Filing fee $ 310, receipt number 0971-13696194.) filed by Health Law Advocates, Inc.. (Springer, Christian) (Filed on 9/11/2019) Modified on 9/12/2019 (ajsS, COURT STAFF). (Entered: 09/11/2019)
84 MOTION for leave to appear in Pro Hac Vice re: Kristyn DeFilipp ( Filing fee $ 310, receipt number 0971-13696242.) filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (DeFilipp, Kristyn) (Filed on 9/11/2019) Modified on 9/12/2019 (ajsS, COURT STAFF). (Entered: 09/11/2019)
85 MOTION for Leave to File Brief of Amicus Curiae filed by Morton Rosenberg. (Attachments: # 1 Exhibit Proposed Brief, # 2 Proposed Order)(Cecere, Joseph) (Filed on 9/11/2019) Modified on 9/12/2019 (kcS, COURT STAFF). (Entered: 09/11/2019)
86 MOTION for Leave to File Amicus Brief of Health Law Advocates, Inc. and 23 Other Organizations Interested in Public Health in Support of Plaintiffs' Motion for Preliminary Injunction filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
87 MOTION for leave to appear in Pro Hac Vice re: Andrew London ( Filing fee $ 310, receipt number 0971-13696642.) filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network,

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Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (London, Andrew) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
88 MOTION for leave to appear in Pro Hac Vice re: Emily Nash ( Filing fee $ 310, receipt number 0971-13696643.) filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Nash, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
Electronic filing error. Case number on document is incorrect Re: 78 MOTION for leave to appear in Pro Hac Vice of Wendy Parmet. This filing will not be processed b y the clerks office. Please re-file in its entirety. (ajsS, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)
89 MOTION for leave to appear in Pro Hac Vice of Wendy Parmet ( Filing fee $ 310, receipt number 0971-13695187.) Filing fee previously paid on 9/11/2019 filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Lowe,

09/12/2019 09/12/2019 09/12/2019
09/12/2019

Justin) (Filed on 9/12/2019) (Entered: 09/12/2019)
90 Notice of Additional Parties: the following parties are listed on 70 Unopposed MOTION for Leave to File Brief of Amici Curiae and have been added to this case: 9to5, National Association of Working Women, Anti-Defamation League, Apna Ghar, Inc., Asian & Latino Solidarity Alliance of Central Virginia, Asian American Advancing Justice - Asian Law Caucus, Asian Americans Advancing Justice-Atlanta, Asian Law Alliance, Asian Pacific American Legal Resource Center, Asian Pacific Community in Action and Asian Pacific Development Center. (This is a text-only entry.) (Kuwahara, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
91 Notice of Additional Parties: the following parties are listed on 70 Unopposed MOTION for Leave to File Brief of Amici Curiae and have been added to this case: Association of Asian Pacific Community Health Organizations, Association of Asian Pacific Community Health Organizations, California Asian Pacific Islander Legislative Caucus, Chicago Alliance Against Sexual Exploitation, Chinese American Planning Council, Chinese for Affirmative Action, Coalition on Human Needs, Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR), Connecticut Women's Education and Legal Fund, EMBARC and End Rape on Campus. (This is a text-only entry.) (Kuwahara, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
92 Notice of Additional Parties: the following parties are listed on 70 Unopposed MOTION for Leave to File Brief of Amici Curiae and have been added to this case: Equal Rights Advocates, Fred T. Korematsu Center for Law and Equality, Girls Inc., GLBTQ Legal Advocates & Defenders (GLAD), If When How: Lawyering for Reproductive Justice, In Our Own Voice: National Black Women's Reproductive Justice Agenda, In the Public Interest, Japanese American Citizens League (JACL), KWH Law Center for Social Justice and Change, LatinoJustice PRLDEF and MinKwon Center for Community Action, GLBTQ Legal Advocates & Defenders (GLAD), KWH Law Center for Social Justice and Change, If When How: Lawyering for Reproductive Justice, Equal Rights Advocates, Fred T. Korematsu Center for Law and Equality, MinKwon Center for Community Action, LatinoJustice PRLDEF, In the Public Interest, Girls Inc., In Our Own Voice: National Black Women's Reproductive Justice Agenda, Japanese American Citizens League (JACL) and National Advocates for Pregnant Women. (This is a text-only entry.) (Kuwahara, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
93 Notice of Additional Parties: the following parties are listed on 70 Unopposed MOTION for Leave to File Brief of Amici Curiae and have been added to this case: National Asian Pacific American Women's

09/12/2019 09/12/2019

Forum (NAPAWF), National Coalition for Asian Pacific American Community Development (National CAPACD), National Crittenton, National Immigration Justice Center, National Korean American Service & Education Consortium (NAKASEC), National Partnership for Women & Families, Oasis Legal Services, OCA - Asian Pacific American Advocates and Oklahoma Call for Reproductive Justice, National Immigration Justice Center, Oklahoma Call for Reproductive Justice, National Korean American Service & Education Consortium (NAKASEC), National Asian Pacific American Women's Forum (NAPAWF), National Coalition for Asian Pacific American Community Development (National CAPACD), Oasis Legal Services, National Crittenton, National Partnership for Women & Families and OCA - Asian Pacific American Advocates. (This is a textonly entry.) (Kuwahara, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
94 Notice of Additional Parties: the following parties are listed on 70 Unopposed MOTION for Leave to File Brief of Amici Curiae and have been added to this case: OneAmerica, Planned Parenthood Federation of America, Population Connection, Reproductive Health Access Project, Services, Immigrant Rights & Education Network (SIREN), Sexuality Information and Education Council of the United States (SIECUS), Sikh American Legal Defense and Education Fund (SALDEF, South Asian Americans Leading Together (SAALT), Southeast Asia Resource Action Center (SEARAC) and Transgender Law Center, Reproductive Health Access Project, Southeast Asia Resource Action Center (SEARAC), Services, Immigrant Rights & Education Network (SIREN), OneAmerica, Planned Parenthood Federation of America, Transgender Law Center, Sikh American Legal Defense and Education Fund (SALDEF, Population Connection, Sexuality Information and Education Council of the United States (SIECUS), South Asian Americans Leading Together (SAALT), Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, and Men of Reform Judaism, Washington Lawyers' Committee for Civil Rights and Urban Affairs, Women's Bar Association of the District of Columbia, Women's Bar Association of the State of New York, The Women's Law Center of Maryland, Women Lawyers on Guard Inc. and Women's Law Project. (This is a text-only entry.) (Kuwahara, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
95 Notice of Additional Parties: the following parties are listed on 70 Unopposed MOTION for Leave to File Brief of Amici Curiae and have been added to this case: National Immigrant Women's Advocacy Project and Center on Reproductive Rights and Justice at Berkeley School of Law. (This is a text-only entry.) (Kuwahara, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)

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09/13/2019
09/13/2019 09/13/2019 09/13/2019 09/13/2019 09/13/2019 09/13/2019

96 MOTION to File Amicus Curiae Brief filed by NHLP; FRAC; CLASP, California Food Policy Advocates, California League of United Latin American Citizens, Center for the Study of Social Policy, Childrens Defense Fund-New York, Childrens HealthWatch, The Childrens Partnership, Citizens Committee for Children of New York, Comunidades Unidas, First Focus on Children, Kansas Appleseed Center for Law and Justice, Inc., Los Angeles Regional Food Bank, Michigan Immigrant Rights Center, Mississippi Center for Justice National Law Center on Homelessness & Poverty, National Low Income Housing Coalition, National WIC Association, Oregon Food Bank, Prevention Institute, Sant La, Haitian Neighborhood Center, Inc., South Carolina Appleseed Legal Justice Center, Utahns Against Hunger, Virginia Poverty Law Center. Responses due by 9/26/2019. Replies due by 10/3/2019. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Thacher, Frances Cheston) (Filed on 9/12/2019) Modified on 9/26/2019 (kcS, COURT STAFF). Modified on 9/26/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
97 MOTION for leave to appear in Pro Hac Vice Kevin Herrera ( Filing fee $ 310, receipt number 0971-13701800.) filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Certificate of Good Standing)(Herrera, Kevin) (Filed on 9/13/2019) (Entered: 09/13/2019)
98 ORDER by Judge Phyllis J. Hamilton granting 77 Motion for Pro Hac Vice as to Sean Marotta. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
99 ***DISREGARD, ENTERED IN ERROR. SEE DOCKET 105 FOR CORRECTED ENTRY*** ORDER by Judge Phyllis J. Hamilton granting 78 Motion for Pro Hac Vice as to Wendy Parmet. (kcS, COURT STAFF) (Filed on 9/13/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/13/2019)
100 ORDER by Judge Phyllis J. Hamilton granting 79 Motion for Pro Hac Vice as to Andrew Cohen. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
101 ORDER by Judge Phyllis J. Hamilton granting 83 Motion for Pro Hac Vice as to Christian Springer. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
102 ORDE by Judge Phyllis J. Hamilton granting 84 Motion for Pro Hac Vice as to Katheryn DeFilipp. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
103 ORDER by Judge Phyllis J. Hamilton granting 87 Motion for Pro Hac

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Vice as to Andrew London. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
104 ORDER by Judge Phyllis J. Hamilton granting 88 Motion for Pro Hac Vice as to Emily Nash. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
105 ORDER by Judge Phyllis J. Hamilton granting 89 Motion for Pro Hac Vice as to Wendy Parmet. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
106 ORDER by Judge Phyllis J. Hamilton granting 97 Motion for Pro Hac Vice as to Kevin Herrera. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
107 MOTION for Leave to File Brief of Amici Curiae Nonprofit Anti-Domestic Violence and Sexual Assault Organizations in Support of Plaintiff's Motion for Preliminary Injunction filed by Asian Pacific Institute on GenderBased Violence. (Attachments: # 1 Appendix A)(Potente, Alexander) (Filed on 9/13/2019) (Entered: 09/13/2019)
108 STIPULATION WITH PROPOSED ORDER (Stipulation Re Extension of Page Limits) filed by Kenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security and All Plaintiffs. (Attachments: # 1 Proposed Order)(Kolsky, Joshua) (Filed on 9/13/2019) Modified on 9/16/2019 (ajsS, COURT STAFF). (Entered: 09/13/2019)
109 MOTION for Leave to File Brief of Amici Curiae filed by American Academy of Pediatrics, American Medical Association, American College of Physicians, American Academy of Pediatrics, California. (Attachments: # 1 Proposed Order, # 2 Proposed Amicus Curiae Brief)(Krumplitsch, Susan) (Filed on 9/13/2019) (Entered: 09/13/2019)
110 MOTION to File Amicus Curiae Brief filed by California Immigrant Policy Center, Oasis Legal Services, Fiscal Policy Institute, Presidents' Alliance on Higher Education and Immigration, Economic Progress Institute, Community Action Marin, Child Care Law Center, Boundless Immigration, National Center for Law and Economic Justice, Virginia Interfaith Center for Public Policy, Kids Forward. Responses due by 9/27/2019. Replies due by 10/4/2019. (Attachments: # 1 Declaration of Brittany N. Lovejoy, # 2 [Proposed] Brief of Amici Curiae, # 3 Proposed Order)(Huseny, Sadik) (Filed on 9/13/2019) (Entered: 09/13/2019)
111 Appendix to 110 Proposed Brief of Amici Curiae the Fiscal Policy Institute, Presidents' Alliance on Higher Education, et al. in Support of Plaintiffs' Motion for Preliminary Injunction filed by Boundless Immigration, California Immigrant Policy Center, Child Care Law Center, Community Action Marin, Economic Progress Institute, Fiscal Policy

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09/16/2019 09/16/2019
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Institute, Kids Forward, National Center for Law and Economic Justice, Oasis Legal Services, Presidents' Alliance on Higher Education and Immigration, Virginia Interfaith Center for Public Policy. (Huseny, Sadik) (Filed on 9/14/2019) Modified on 9/16/2019 (ajsS, COURT STAFF). (Entered: 09/14/2019)
112 ORDER EXTENDING PAGE LIMITATION APPLICABLE TO DEFENDANTS' OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION by Judge Phyllis J. Hamilton granting 108 Stipulation. (kcS, COURT STAFF) (Filed on 9/16/2019) (Entered: 09/16/2019)
113 ORDER DENYING MOTIONS FOR LEAVE TO FILE AMICI BRIEFS (pjhlc1S, COURT STAFF) (Filed on 9/16/2019) (Entered: 09/16/2019)
114 Amended MOTION for leave to appear in Pro Hac Vice re: Joseph Carl Cecere, Jr. (Filing fee $ 310.) Filing fee previously paid on 9/11/2019 filed by Morton Rosenberg. (Attachments: # 1 Certificate/Proof of Service Certificate of Good Standing)(Cecere, Joseph) (Filed on 9/16/2019) Modified on 9/16/2019 (ajsS, COURT STAFF). (Entered: 09/16/2019)
115 NOTICE of Appearance by Eric Joseph Soskin (Soskin, Eric) (Filed on 9/16/2019) (Entered: 09/16/2019)
Electronic filing error. Local Co-Counsel listed in the motion, Michael T. Richer, is not registered with our Court nor can he be located in the State Bar. This filing will not b e processed by the clerks office. Please correct and re-file in its entirety. Re: 114 Amended MOTION for leave to appear in Pro Hac Vice filed by Morton Rosenberg. (ajsS, COURT STAFF) (Filed on 9/16/2019) (Entered: 09/16/2019)
116 OPPOSITION/RESPONSE (re 35 MOTION for Preliminary Injunction ) filed byKenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Soskin, Eric) (Filed on 9/16/2019) (Entered: 09/16/2019)
117 Declaration of Joshua Kolsky in Support of 116 Opposition/Response to Motion, filed byKenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Attachments: # 1 Exhibit A Regulatory Impact Analysis)(Related document(s) 116 ) (Soskin, Eric) (Filed on 9/16/2019) (Entered: 09/16/2019)
118 REPLY (re 35 MOTION for Preliminary Injunction ) filed byAfrican Communities Together, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Espiritu, Nicholas) (Filed on

09/25/2019
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9/20/2019) (Entered: 09/20/2019)
119 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d (2) filed byAfrican Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Exhibit A)(Herrera, Kevin) (Filed on 9/25/2019) (Entered: 09/25/2019)
120 NOTICE of Appearance by Ethan Price Davis (Attachments: # 1 Certificate/Proof of Service)(Davis, Ethan) (Filed on 9/28/2019) (Entered: 09/28/2019)
121 AFFIDAVIT of Service of Certified Mailing, filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic RelationsCalifornia, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Espiritu, Nicholas) (Filed on 9/30/2019) (Entered: 09/30/2019)
122 NOTICE by Kenneth T. Cuccinelli, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security (Attachments: # 1 Exhibit (Correction))(Kolsky, Joshua) (Filed on 10/1/2019) (Entered: 10/01/2019)
123 Minute Entry for proceedings held before Judge Phyllis J. Hamilton: Preliminary Injunction Hearing held on 10/2/2019. Court Reporter: Pamela Batalo Hebel. (kcS, COURT STAFF) (Date Filed: 10/2/2019) (Entered: 10/02/2019)
124 TRANSCRIPT ORDER for proceedings held on 10/2/2019 before Judge Phyllis J. Hamilton for Court Reporter Pam Batalo. (oh, COURT STAFF) (Filed on 10/3/2019) (Entered: 10/03/2019)
125 Transcript of Proceedings held on 10/02/19, before Judge Hamilton. Court Reporter Pamela Batalo Hebel, telephone number 626-688-7509; pamela_batalo-hebel@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (111 in 4:19-cv-04975-PJH, 124 in 4:19-cv-04980-PJH, 108 in 4:19-cv-04717-PJH) Transcript Order, (110 in 4:19-cv-04975-PJH) Transcript Order, (109 in 4:19-cv-04717-PJH) Transcript Order ) Redaction Request due 10/24/2019. Redacted Transcript Deadline set for 11/4/2019. Release of Transcript Restriction set for 1/2/2020. (Batalo, Pam) (Filed on 10/3/2019) (Entered: 10/03/2019)

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126 PLAINTIFFS SUPPLEMENTAL BRIEF REGARDING HARMS IN SUPPORT OF MOTION by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access re 123 Preliminary Injunction Hearing - Non-evidentiary of Record Evidence of Harms (Espiritu, Nicholas) (Filed on 10/4/2019) Modified on 10/7/2019 (ajsS, COURT STAFF). (Entered: 10/04/2019)
127 Letter Brief re 123 Preliminary Injunction Hearing - Non-evidentiary from all Plaintiffs and [Proposed] Order Granting Plaintiffs' Motions for Preliminary Injunction filed byAfrican Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Proposed Order)(Related document(s) 123 ) (Espiritu, Nicholas) (Filed on 10/7/2019) (Entered: 10/07/2019)
128 NOTICE of Draft Injunction by Kenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security (Kolsky, Joshua) (Filed on 10/7/2019) Modified on 10/8/2019 (ajsS, COURT STAFF). (Entered: 10/07/2019)
Electronic filing error. Incorrect event used re: Re: 126 Notice (Other). [err101]. Correct event is: Civil Events > Motions and Related Filings > Other Supporting Documents > Supplemental Brief.

10/08/2019
10/10/2019 10/11/2019

Corrected by Clerk's Office. No further action is necessary. (ajsS, COURT STAFF) (Filed on 10/7/2019) (Entered: 10/07/2019)
129 NOTICE of Withdrawal of Counsel by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access (Cho, Michelle) (Filed on 10/8/2019) Modified on 10/9/2019 (ajsS, COURT STAFF). (Entered: 10/08/2019)
130 NOTICE of Attorney Withdrawal by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars (Frisina, Christopher) (Filed on 10/10/2019) Modified on 10/11/2019 (ajsS, COURT STAFF). (Entered: 10/10/2019)
131 PRELIMINARY INJUNCTIONAssociated Cases: 4:19-cv-04717-PJH, 4:19-cv-04975-PJH, 4:19-cv-04980-PJH(pjhlc1S, COURT STAFF)

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(Filed on 10/11/2019) (Entered: 10/11/2019)
132 MOTION to Withdraw as Attorney filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. Responses due by 10/30/2019. Replies due by 11/6/2019. (Frisina, Christopher) (Filed on 10/16/2019) (Entered: 10/16/2019)
Electronic filing error. Missing Proposed Order Re: 132 MOTION to Withdraw as Attorney . A proposed order required in accordance with L.R. 5-1(g). Please file a p roposed order ONLY and link it to the Motion. The event is: Civil Events > Other Filings > Other Documents > Proposed Order (ajsS, COURT STAFF) (Filed on 10/17/2019) (Entered: 10/17/2019)
133 MOTION to Withdraw 132 MOTION to Withdraw as Attorney filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. Responses due by 10/31/2019. Replies due by 11/7/2019. (Frisina, Christopher) (Filed on 10/17/2019) (Entered: 10/17/2019)
Motions terminated: 133 MOTION to Withdraw 132 MOTION to Withdraw as Attorney filed by Deans, Chairs, and Scholars, American Public Health Association, American Academy of Nursing, 132 MOTION to Withdraw as Attorney filed by Deans, Chairs, and Scholars, American Public Health Association, American Academy of Nursing. ***Motion to withdrawal is not required pursuant to LR 5-1(c)(2)(C); Correct event to withdraw a motion is Notice of withdrawal not Motion.*** (kcS, COURT STAFF) (Filed on 10/17/2019) (Entered: 10/18/2019)
134 JOINT ADMINISTRATIVE MOTION for Relief from Automatic Referral to the ADR Multi-Option Program filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Proposed Order)(Espiritu, Nicholas) (Filed on 10/23/2019) Modified on 10/24/2019 (ajsS, COURT STAFF). (Entered: 10/23/2019)
135 Order by Judge Phyllis J. Hamilton granting 134 Joint Motion for Relief from Referral to ADR Multi-Option Program.(dtmS, COURT STAFF) (Filed on 10/25/2019) (Entered: 10/25/2019)
136 Notice of Withdraw as Attorney filed by La Clinica De La Raza. (Attachments: # 1 Proposed Order)(Hoq, Laboni) (Filed on 10/31/2019) Modified on 10/31/2019 (kcS, COURT STAFF). (Entered: 10/31/2019)
Electronic filing error. Corrected by Clerk's Office. No further action is necessary. Re: 136 MOTION to Withdraw as Attorney filed by La Clinica

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De La Raza. ***Motion to withdrawal is not required pursuant to LR 5-1(c)(2)(C).*** (kcS, COURT STAFF) (Filed on 10/31/2019) (Entered: 10/31/2019)
137 JOINT CASE MANAGEMENT STATEMENT filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic RelationsCalifornia, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access, U.S. Citizenship and Immigration Services, Department of Homeland Security, Kevin McAleenen, and Kenneth T. Cuccinelli. (Espiritu, Nicholas) (Filed on 11/7/2019) Modified on 11/8/2019 (ajsS, COURT STAFF). (Entered: 11/07/2019)
138 Certificate of Interested Entities by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access (Espiritu, Nicholas) (Filed on 11/14/2019) (Entered: 11/14/2019)
139 Minute Entry for proceedings held before Judge Phyllis J. Hamilton: Initial Case Management Conference held on 11/14/2019. Parties shall submit a stipulated proposed briefing schedule by 12/9/2019. Court Reporter: Pamela Batalo Hebel. (kcS, COURT STAFF) (Date Filed: 11/14/2019) (Entered: 11/14/2019)
140 Transcript of Proceedings held on 11/14/19, before Judge Hamilton. Court Reporter Pamela Batalo Hebel, telephone number 626-688-7509; pamela_batalo-hebel@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (132 in 4:19-cv-04717-PJH) Transcript Order ) Redaction Request due 12/13/2019. Redacted Transcript Deadline set for 12/23/2019. Release of Transcript Restriction set for 2/20/2020. (Batalo, Pam) (Filed on 11/22/2019) (Entered: 11/22/2019)
141 STIPULATION WITH PROPOSED ORDER re 139 Terminate Hearings,, Case Management Conference - Initial, PURSUANT TO CIVIL LOCAL RULE 6-2 REQUESTING ORDER CHANGING TIME filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic RelationsCalifornia, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access, Donald J. Trump, U.S. Department of Homeland Security, Kevin

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McAleenan, U.S. Citizenship and Immigration Services, and Kenneth T. Cuccinelli. (Attachments: # 1 Declaration of Nicholas Espiritu, # 2 Proposed Order)(Espiritu, Nicholas) (Filed on 12/9/2019) Modified on 12/10/2019 (ajsS, COURT STAFF). (Entered: 12/09/2019)
142 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic RelationsCalifornia, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. Appeal of Order on Motion for Preliminary Injunction 131 (Appeal fee of $505 receipt number 0971-13967848 paid.) (Attachments: # 1 Representation Statement)(Espiritu, Nicholas) (Filed on 12/10/2019) (Entered: 12/10/2019)
Electronic filing error. Judge name or initials are missing Re: 142 Notice of Appeal. Counsel need not re-file the document, but should reference the correct judge name/initials , as part of the case number, on all future filings. (ajsS, COURT STAFF) (Filed on 12/11/2019) (Entered: 12/11/2019)
143 USCA Case Number 19-17483 Ninth Circuit Court of Appeals for 142 Notice of Appeal filed by African Communities Together, Legal Aid Society of San Mateo County, Farmworker Justice, Council on American Islamic Relations-California, Central American Resource Center, Korean Resource Center, La Clinica De La Raza, California Primary Care Association, Maternal and Child Health Access. (cjlS, COURT STAFF) (Filed on 12/11/2019) (Entered: 12/11/2019)
144 ORDER APPROVING THE PARTIES' STIPULATION TO CHANGE TIME by Judge Phyllis J. Hamilton granting 141 Stipulation. (kcS, COURT STAFF) (Filed on 12/11/2019) (Entered: 12/11/2019)
145 Transcript Designation Form for proceedings held on 10/02/2019 before Judge Phyllis J. Hamilton, re 142 Notice of Appeal,, 143 USCA Case Number, Transcript due by 12/19/2019. (Huerta, Alvaro) (Filed on 12/19/2019) (Entered: 12/19/2019)
146 STIPULATION WITH PROPOSED ORDER (Proposed Schedule) filed by Kenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security, and All Plaintiffs (Kolsky, Joshua) (Filed on 12/20/2019) Modified on 12/23/2019 (ajsS, COURT STAFF). Modified on 12/23/2019 (ajsS, COURT STAFF). (Entered: 12/20/2019)
147 STIPULATION RE CASE MANAGEMENT SCHEDULE; ORDER by Judge Phyllis J. Hamilton granting 146 Stipulation. Motions related to discovery and completeness of the administrative record due by

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1/29/2020. Response due by 2/12/2020. Reply due by 2/19/2020. Hearing on motions set for 3/4/2020 at 9:00 a.m. (kcS, COURT STAFF) (Filed on 12/23/2019) (Entered: 12/23/2019)
148 ADMINISTRATIVE MOTION for Leave to Manually File Administrative Record filed by Kenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security. Responses due by 1/6/2020. (Attachments: # 1 Declaration (Kolsky Declaration), # 2 Proposed Order)(Kolsky, Joshua) (Filed on 1/2/2020) (Entered: 01/02/2020)
149 Order by Judge Phyllis J. Hamilton regarding Administrative Motions to Manually File Administrative Record.Associated Cases: 4:19-cv04717-PJH, 4:19-cv-04975-PJH, 4:19-cv-04980-PJH(pjhlc1S, COURT STAFF) (Filed on 1/10/2020) (Entered: 01/10/2020)
150 MOTION to Compel Completion of the Administrative Record and Request for Leave to Serve Discovery filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. Motion Hearing set for 3/4/2020 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. Responses due by 2/12/2020. Replies due by 2/19/2020. (Attachments: # 1 Proposed Order)(Espiritu, Nicholas) (Filed on 1/29/2020) (Entered: 01/29/2020)
151 ORDER/MANDATE of USCA as to 142 Notice of Appeal,, filed by African Communities Together, Legal Aid Society of San Mateo County, Farmworker Justice, Council on American Islamic Relations-California, Central American Resource Center, Korean Resource Center, La Clinica De La Raza, California Primary Care Association, Maternal and Child Health Access (ajsS, COURT STAFF) (Filed on 2/4/2020) (Entered: 02/05/2020)
152 OPPOSITION/RESPONSE (re 150 MOTION to Compel Completion of the Administrative Record and Request for Leave to Serve Discovery ) filed byKenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Filed on 2/12/2020) (Entered: 02/12/2020)
153 REPLY (re 150 MOTION to Compel Completion of the Administrative Record and Request for Leave to Serve Discovery ) filed byAfrican Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic RelationsCalifornia, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Espiritu, Nicholas) (Filed on 2/19/2020) (Entered: 02/19/2020)

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154 Minute Entry for proceedings held before Judge Phyllis J. Hamilton: Motion Hearing held on 3/4/2020 re 150 MOTION to Compel Completion of the Administrative Record and Request for Leave to Serve Discovery filed by African Communities Together, Legal Aid Society of San Mateo County, Farmworker Justice, Council on American Islamic Relations-California, Central American Resource Center, Korean Resource Center, La Clinica De La Raza, California Primary Care Association, Maternal and Child Health Access. Court Reporter: Raynee Mercado. (kcS, COURT STAFF) (Date Filed: 3/4/2020) (Entered: 03/04/2020)
155 NOTICE of Supplemental Authority by Kenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security re 152 Opposition/Response to Motion, (Kolsky, Joshua) (Filed on 3/25/2020) Modified on 3/26/2020 (ajsS, COURT STAFF). (Entered: 03/25/2020)
156 Transcript of Proceedings held on March 4, 2020, before Judge Phyllis J. Hamilton. Court Reporter Raynee H. Mercado, CSR, telephone number 510-565-7228, cacsr8258@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (155 in 4:19-cv-04975-PJH) Transcript Order ) Release of Transcript Restriction set for 6/23/2020. (rhm) (Filed on 3/27/2020) (Entered: 03/27/2020)
157 ORDER by Judge Phyllis J. Hamilton granting in part and denying in part (149) Motion to Compel in case 4:19-cv-04975-PJH; granting in part and denying in part (150) Motion to Compel in case 4:19-cv04980-PJH. (pjhlc1S, COURT STAFF) (Filed on 4/1/2020) (Entered: 04/01/2020)
158 MOTION to Dismiss filed by Kenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security. Motion Hearing set for 6/10/2020 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. Responses due by 5/6/2020. Replies due by 5/13/2020. (Attachments: # 1 Proposed Order)(Kolsky, Joshua) (Filed on 4/22/2020) (Entered: 04/22/2020)
159 STIPULATION REGARDING FIRST AMENDED COMPLAINT AND MOTION TO DISMISS BRIEFING SCHEDULE; DECLARATION OF NICHOLAS ESPIRITU; AND [PROPOSED] ORDER filed by African Communities Together, California Primary Care Association, Central

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American Resource Center, Council on American Islamic RelationsCalifornia, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access, United States Department of Homeland Security, United State Citizenship and Immigration Services, Donald J. Trump and Kenneth T. Cuccinelli. (Espiritu, Nicholas) (Filed on 5/7/2020) Modified on 5/8/2020 (ajsS, COURT STAFF). (Entered: 05/07/2020)
160 STIPULATION RE FIRST AMENDED COMPLAINT AND MOTION TO DISMISS BRIEFING SCHEDULE; AND ORDER by Judge Phyllis J. Hamilton granting 159 Stipulation. Amended Pleadings due by 5/20/2020. Answer to first amended complaint or motion to dismiss due by 6/10/2020. Opposition due 7/1/2020. Reply due 7/15/2020. Hearing on motion to dismiss set for 7/29/2020 at 9:00 a.m. (kcS, COURT STAFF) (Filed on 5/8/2020) (Entered: 05/08/2020)
161 AMENDED COMPLAINT against Kenneth T. Cuccinelli, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security, Chad F. Wolf. Filed byCalifornia Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Legal Aid Society of San Mateo County, La Clinica De La Raza, African Communities Together, Maternal and Child Health Access, Korean Resource Center, Farmworker Justice. (Espiritu, Nicholas) (Filed on 5/20/2020) (Entered: 05/20/2020)
162 CLERK'S NOTICE VACATING MOTION HEARING. You are hereby notified that the hearing re 158 Motion to Dismiss is VACATED. The matter is taken under submission on the papers. In the event that the court determines that oral argument is necessary, the court will issue a notice to the parties with instructions on the hearing procedure at a future date. (This is a text-only entry generated by the court. There is no document associated with this entry.) (kcS, COURT STAFF) (Filed on 5/22/2020) (Entered: 05/22/2020)
163 NOTICE of Change In Counsel by Owen Masters (Masters, Owen) (Filed on 5/29/2020) (Entered: 05/29/2020)
164 NOTICE of Appearance by Priyamvada Arora (Arora, Priyamvada) (Filed on 5/29/2020) (Entered: 05/29/2020)
165 NOTICE of Change In Counsel by Priyamvada Arora (Arora, Priyamvada) (Filed on 5/29/2020) (Entered: 05/29/2020)
166 MOTION to Dismiss Amended Complaint filed by Kenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security, Chad F. Wolf. Motion Hearing set for 7/29/2020 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. Responses due by 7/1/2020. Replies due by 7/15/2020. (Attachments: # 1 Proposed Order,

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# 2 Declaration (Blackwell), # 3 Exhibit 1)(Kolsky, Joshua) (Filed on 6/10/2020) (Entered: 06/10/2020)
167 OPPOSITION/RESPONSE (re 166 MOTION to Dismiss Amended Complaint ) filed byAfrican Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Espiritu, Nicholas) (Filed on 7/1/2020) (Entered: 07/01/2020)
168 CLERK'S NOTICE VACATING MOTION HEARING. You are hereby notified that the hearing re 166 Motion to Dismiss Amended Complaint is VACATED. The matter is taken under submission on the papers. In the event that the court determines that oral argument is necessary, the court will issue a notice to the parties with instructions on the hearing procedure at a future date. (This is a text-only entry generated by the court. There is no document associated with this entry.) (kcS, COURT STAFF) (Filed on 7/2/2020) (Entered: 07/02/2020)
169 ADMINISTRATIVE MOTION Extension of Time to File Reply in Support of Motion to Dismiss filed by Kenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security, Chad F. Wolf. Responses due by 7/13/2020. (Attachments: # 1 Declaration (Kolsky Declaration), # 2 Proposed Order)(Kolsky, Joshua) (Filed on 7/9/2020) (Entered: 07/09/2020)
170 ORDER EXTENDING TIME FOR DEFENDANTS TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS by Judge Phyllis J. Hamilton granting 169 Administrative Motion. (kcS, COURT STAFF) (Filed on 7/13/2020) (Entered: 07/13/2020)
Reset Deadlines as to 166 MOTION to Dismiss Amended Complaint. Reply due by 7/24/2020. (kcS, COURT STAFF) (Filed on 7/13/2020) (Entered: 07/13/2020)
171 MOTION for Leave to File Excess Pages filed by Kenneth T. Cuccinelli, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security, Chad F. Wolf. (Attachments: # 1 Declaration, # 2 Proposed Order)(Kolsky, Joshua) (Filed on 7/23/2020) (Entered: 07/23/2020)
172 REPLY (re 166 MOTION to Dismiss Amended Complaint ) filed byKenneth T. Cuccinelli, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security, Chad F. Wolf. (Kolsky, Joshua) (Filed on 7/24/2020) (Entered: 07/24/2020)

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173 ORDER EXTENDING PAGE LIMITATION APPLICABLE TO REPLY IN SUPPORT OF MOTION TO DISMISS by Judge Phyllis J. Hamilton granting 171 Motion for Leave to File Excess Pages. (kcS, COURT STAFF) (Filed on 7/24/2020) (Entered: 07/24/2020)
174 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byAfrican Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Related document(s) 167 ) (Espiritu, Nicholas) (Filed on 7/31/2020) (Entered: 07/31/2020)
175 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byAfrican Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Exhibit A)(Related document(s) 167 ) (Espiritu, Nicholas) (Filed on 8/4/2020) (Entered: 08/04/2020)
176 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byKenneth T. Cuccinelli, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security, Chad F. Wolf. (Attachments: # 1 Exhibit A)(Kolsky, Joshua) (Filed on 8/6/2020) (Entered: 08/06/2020)
177 ***Order has been withdrawn and amended. See Dkt. 189 for amended order.*** ORDER by Judge Phyllis J. Hamilton granting in part, denying in part, and deferring ruling in part on 166 Motion to Dismiss. (pjhlc1S, COURT STAFF) (Filed on 8/7/2020) Modified on 11/25/2020 (kcS, COURT STAFF). (Entered: 08/07/2020)
178 NOTICE of Change In Counsel by Linton Joaquin (Joaquin, Linton) (Filed on 8/17/2020) (Entered: 08/17/2020)
179 MOTION for Leave to File Motion for Reconsideration filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic RelationsCalifornia, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion for Leave to File Motion for Reconsideration, # 2 Exhibit [Proposed] Plaintiffs' Motion for Reconsideration, # 3 Exhibit [Proposed] Order Granting Plaintiffs' Motion for Reconsideration)(Espiritu, Nicholas) (Filed on 8/28/2020) (Entered: 08/28/2020)

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180 Declaration of Nicholas Espritu in Support of 179 Motion for Leave to File Motion for Reconsideration, filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 179 ) (Espiritu, Nicholas) (Filed on 8/28/2020) Modified on 8/31/2020 (jlmS, COURT STAFF). (Entered: 08/28/2020)
181 NOTICE of Change In Counsel by Ethan Price Davis (Davis, Ethan) (Filed on 9/4/2020) (Entered: 09/04/2020)
182 Order by Judge Phyllis J. Hamilton granting 179 Motion for Leave to File Motion for Reconsideration.(pjhlc1S, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
Set Deadlines: Motion for Reconsideration due by 9/10/2020. (kcS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
183 MOTION for Reconsideration re 177 Order on Motion to Dismiss filed by African Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Maternal and Child Health Access. (Attachments: # 1 Declaration of Nicholas Espiritu, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Proposed Order)(Espiritu, Nicholas) (Filed on 9/10/2020) (Entered: 09/10/2020)
184 OPPOSITION/RESPONSE (re 183 MOTION for Reconsideration re 177 Order on Motion to Dismiss ) filed byKenneth T. Cuccinelli, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security, Chad F. Wolf. (Kolsky, Joshua) (Filed on 9/24/2020) (Entered: 09/24/2020)
185 REPLY (re 183 MOTION for Reconsideration re 177 Order on Motion to Dismiss ) filed byAfrican Communities Together, California Primary Care Association, Central American Resource Center, Council on American Islamic Relations-California, Farmworker Justice, Korean Resource Center, La Clinica De La Raza, Legal Aid Society of San Mateo County, Maternal and Child Health Access. (Espiritu, Nicholas) (Filed on 10/1/2020) (Entered: 10/01/2020)
186 NOTICE by Kenneth T. Cuccinelli, Kevin K. McAleenan, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security, Chad F. Wolf re 183 MOTION for Reconsideration re 177 Order on Motion to Dismiss (Kolsky, Joshua) (Filed on 10/8/2020) (Entered: 10/08/2020)

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187 NOTICE by Kenneth T. Cuccinelli, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security, Chad F. Wolf re 183 MOTION for Reconsideration re 177 Order on Motion to Dismiss (Kolsky, Joshua) (Filed on 11/23/2020) (Entered: 11/23/2020)
188 Order by Judge Phyllis J. Hamilton granting 183 Motion for Reconsideration re 177 Order on Motion to Dismiss.(pjhlc1S, COURT STAFF) (Filed on 11/25/2020) (Entered: 11/25/2020)
189 AMENDED ORDER by Judge Phyllis J. Hamilton granting in part, denying in part, and deferring ruling in part on 166 MOTION to Dismiss. (pjhlc1S, COURT STAFF) (Filed on 11/25/2020) (Entered: 11/25/2020)
190 NOTICE of Substitution of Counsel, filed by NHLP; FRAC; CLASP, et al.. (Thacher, Frances Cheston) (Filed on 12/21/2020) Modified on 12/22/2020 (jlmS, COURT STAFF). (Entered: 12/21/2020)
191 NOTICE Regarding Executive Order by Kenneth T. Cuccinelli, Donald J. Trump, United States Citizenship and Immigration Services, United States Department of Homeland Security, Chad F. Wolf (Kolsky, Joshua) (Filed on 2/3/2021) Modified on 2/3/2021 (jlmS, COURT STAFF). (Entered: 02/03/2021)
192 NOTICE of Change In Counsel by Kevin Lee Herrera (Herrera, Kevin) (Filed on 2/9/2021) (Entered: 02/09/2021)

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 Case 4:19-cv-04980-PJH Document 1 Filed 08/16/19 Page 1 of 45

1 Nicholas Espíritu (SBN 237665) NATIONAL IMMIGRATION LAW CENTER
2 3450 Wilshire Boulevard, #108-62 Los Angeles, CA 90010
3 Telephone: (213) 639-3900 Fax: (213) 639-3911
4 espiritu@nilc.org

5 Antionette Dozier (SBN 244437) WESTERN CENTER ON LAW & POVERTY
6 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010
7 Tel: (213) 487-7211 Fax: (213) 487-0242
8 adozier@wclp.org

9 Martha Jane Perkins (SBN 104784) NATIONAL HEALTH LAW PROGRAM
10 200 N. Greensboro Street, Ste. D-13 Carrboro, NC 27510
11 Tel.: (919) 968-6308 Fax: (919) 968-8855
12 perkins@healthlaw.org

13 Laboni Hoq (SBN 224140) ASIAN AMERICANS ADVANCING JUSTICE – LOS ANGELES
14 1145 Wilshire Blvd., 2nd Floor Los Angeles, CA 90017
15 Telephone: (213) 977-7500 Fax: (213) 977-7500
16 lhoq@advancingjustice-la.org

17 Attorneys for Plaintiffs 18 19

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

20 LA CLINICA DE LA RAZA; CALIFORNIA

PRIMARY CARE ASSOCIATION;

21 MATERNAL AND CHILD HEALTH

ACCESS; FARMWORKER JUSTICE;

22 COUNCIL ON AMERICAN ISLAMIC

RELATIONS-CALIFORNIA; AFRICAN

23 COMMUNITIES TOGETHER; LEGAL AID

SOCIETY OF SAN MATEO COUNTY;

24 CENTRAL AMERICAN RESOURCE

CENTER, and KOREAN RESOURCE

25 CENTER

Plaintiffs,

26

v.

Case No. 3:19-cv-4980 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

27

28

42703260.2

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1 DONALD J. TRUMP, in his Official Capacity as President of the United States; UNITED STATES
2 DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CITIZENSHIP AND
3 IMMIGRATION SERVICES; KENNETH T. CUCCINELLI, in his Official Capacity as Acting
4 Director of U.S. Citizenship and Immigration Services; and KEVIN K. MCALEENAN, in his Official
5 Capacity as Acting Secretary of the Department of Homeland Security,
6 Defendants.
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1

INTRODUCTION

2

1. President Donald J. Trump is determined to prevent immigrants of color from

3 coming to and remaining in the United States. As part of this broad effort, the administration has

4 promulgated a “public charge” regulation, which erects hurdles to family-based immigration that

5 Congress has not authorized. This unlawful regulation harms and specifically targets immigrants

6 of color.

7

2. Defendants’ “public charge” regulation (“Regulation”) violates the Administrative

8 Procedure Act (“APA”) and the equal protection guarantee of the Fifth Amendment to the U.S.

9 Constitution. The Regulation is squarely at odds with the language of the statute, its century-long

10 interpretation, and Congress’s purpose in enacting the statute. It is arbitrary and capricious and

11 motivated by animus toward non-white immigrants.

12

3. The Immigration and Nationality Act (“INA”) bars an individual from obtaining a

13 green card or from obtaining certain visas if the person is “likely at any time to become a public

14 charge.” Since Congress first introduced the term in the immigration context in 1882, “public

15 charge” has been understood to mean only someone who is primarily dependent on the

16 government to avoid destitution (i.e., someone who is effectively a “charge” or ward of the state).

17 From its first use in the immigration laws, “public charge” was included alongside other grounds

18 of inadmissibility that necessitate reliance on the government to avoid destitution, such as

19 “paupers,” “professional beggars,” and “insane persons.” Congress has never altered the long-

20 standing meaning of “public charge” as articulated by the courts and administrative agencies.

21 “Public charge” has never been understood to reach immigrants who, like the majority of citizens

22 in the United States, may at some point in their lives receive supplemental health care, nutrition, or

23 housing assistance to improve their lives and those of their families.

24

4. Acting unilaterally and without congressional approval, Defendants now deviate

25 from the established meaning of the term public charge, dramatically expanding it to effect a sea-

26 change in immigration law. The Regulation treats as a public charge any immigrant found to be

27 more likely than not, at any time over his or her lifetime, to receive any amount of benefits from a

28 wide range of supplemental public benefits programs.

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1

5. The targeted benefits include health care coverage (non-emergency Medicaid for

2 non-pregnant adults), housing assistance (Section 8 and public housing), and food assistance

3 (Supplemental Nutrition Assistance Program or “SNAP”). Indeed, one in four U.S. citizens (over

4 70 million individuals) participate in one or more of these programs in any given year. Moreover,

5 about one half of U.S. citizens can be expected to use one of the programs at some point in their

6 lifetime. Those who rely on these programs include low- and moderate-income working families

7 who depend primarily on income from employment, but who receive supplemental benefits that

8 improve their quality of life and their communities. These non-cash programs help millions of

9 citizens and immigrants alike, enabling them to remain healthy and productive in communities

10 where rents and other costs of living are high.

11

6. In addition, the Regulation fundamentally distorts the totality-of-the-circumstances

12 test that the public-charge statute prescribes. The Regulation sets forth a series of arbitrary factors

13 that are not reasonably related to whether a person is likely to become a public charge—including

14 English proficiency and credit scores. Most of the factors enumerated in the Regulation are

15 negatively weighted, significantly and arbitrarily tipping the scale in favor of finding an applicant

16 to be a public charge.

17

7. The Regulation also introduces a public charge determination against an entirely

18 new group—nonimmigrants seeking a change of status or an extension of their stay—making

19 those nonimmigrants who have received certain designated benefits generally ineligible for a

20 change of status or extension, despite the agency’s acknowledgement that the public charge statute

21 does not apply to this group.

22

8. This Regulation fits squarely within a consistent pattern of racial discrimination in

23 this Administration’s immigration policies—including separating thousands of Central American

24 children from their mothers and fathers; refusing refuge to non-white immigrants seeking asylum;

25 attempting to end the Deferred Action for Childhood Arrivals program; terminating Temporary

26 Protected Status and Deferred Enforced Departure for nationals of several predominantly non-

27 white countries; excluding individuals from majority Muslim countries; proposing a rule that

28 would bar families from housing programs if any family member is without eligible immigration

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1 status; and proposing a Regulation that would apply the same overbroad definition to the “public-

2 charge” deportability ground.

3

9. Defendants fail to provide adequate reasons for their dramatic changes to the

4 public-charge policy, and they fail to explain how those changes are consistent with the statutory

5 language and the well-settled interpretation of that language. Defendants have acted in total

6 disregard of the Regulation’s effects on families, communities, and the nation. And the agency

7 has failed to respond adequately to the myriad concerns expressed in the over 260,000 comments

8 submitted.

9

10. Plaintiffs bring this lawsuit to enjoin the implementation of Defendants’ new public

10 charge Regulation in order to prevent irreparable harm to themselves and their communities.

11 Plaintiffs represent health care providers and other nonprofit organizations that seek to protect

12 access to health care, nutrition, housing, and other public benefits for immigrants, including

13 immigrants of color, regardless of their immigration status or financial means. The Regulation has

14 and will continue to divert Plaintiffs’ resources, both to address the harmful effects of the

15 Regulation and to educate immigrant families about those effects, preventing Plaintiffs from

16 carrying out other aspects of their missions and ensuring that their patients, members, and clients

17 do not forgo critical services to lead healthy, productive, and successful lives.

18

11. The Regulation is also impermissibly vague and complex, inviting arbitrary and

19 discriminatory enforcement by immigration officials. As a result, the regulation will cause

20 immigrant families, including those with U.S. citizen members, to disenroll from programs or to

21 forgo benefits for which they are eligible. Many of these immigrant families will not in fact be

22 subject to the public charge inquiry but will nonetheless disenroll due to fear or lack of

23 understanding as to how the Regulation operates. The impacts of this chilling effect are far-

24 reaching. The Regulation not only will jeopardize the health of the affected immigrants, their

25 children, and other family members, but will also endanger public health by, among other things,

26 increasing the likelihood of untreated communicable disease, depriving essential community

27 health providers of Medicaid revenue, and creating food and housing instability. The Regulation

28 will produce negative health and economic outcomes nationwide over generations.

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1

12. Plaintiffs request that this Court hold unlawful and set aside the Regulation under

2 the Administrative Procedure Act and the Equal Protection guarantee of the Fifth Amendment to

3 the U.S. Constitution and that it enter an injunction barring Defendants from implementing the

4 Regulation.

5

PARTIES

6 I. Plaintiffs

7

13. Plaintiff LA CLÍNICA DE LA RAZA (“LA CLÍNICA”) is a Federally Qualified

8 Health Center whose mission is to improve the quality of life of the diverse communities it serves

9 by providing culturally appropriate, high-quality, and accessible health care for all. LA CLÍNICA

10 serves more than 86,000 patients annually in the San Francisco Bay Area and is one of the largest

11 community health centers in California, with a total of 35 clinical service and

12 support/administrative sites across three Bay Area counties.

13

14. LA CLÍNICA serves patients who may seek to extend or adjust their immigration

14 status, and whose immigration applications will be subject to Defendants’ Regulation. Many LA

15 CLÍNICA patients receive Medicaid and other public benefits. A significant number of LA

16 CLÍNICA’s patients are low-income, have limited English proficiency, and/or have limited skills

17 and education. Many LA CLÍNICA patients also reside in large households. LA

18 CLÍNICA’s patients are predominantly people of color.

19

15. Defendants’ new Regulation will frustrate LA CLÍNICA’s ability to provide

20 accessible health care to the thousands of patients it treats each year. Because of the Regulation’s

21 chilling effect, many of LA CLÍNICA’s patients—and their families—are likely to avoid using

22 public benefits, including seeking health care services. Many of LA CLÍNICA’s patients will

23 either disenroll themselves and/or their family members from Medicaid based on the fear that

24 using these benefits will hinder their ability to adjust status in the future. Other LA CLÍNICA

25 patients will cancel or refrain from scheduling medical appointments for fear that using health care

26 services could affect their ability to adjust status. This will harm immigrant patients and their

27 communities. It will also severely harm LA CLÍNICA by significantly reducing LA

28 CLÍNICA’s funding stream while imposing substantial unbudgeted costs.

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1

16. Plaintiff CALIFORNIA PRIMARY CARE ASSOCIATION (“CPCA”) brings this

2 action on behalf of its members. Formed in 1994, CPCA has become the statewide leader and a

3 recognized voice in representing the interests of California community health centers and their

4 patients. CPCA represents Regional Clinic Associations and 1,330 nonprofit community health

5 centers (“CHCs”) that provide comprehensive primary and preventive health services to low-

6 income and uninsured patients in California. CPCA’s members include community and free

7 health centers, some federally funded and federally designated health centers, rural and urban

8 clinics, large and small clinic corporations, and clinics dedicated to special needs and special

9 populations.

10

17. CPCA’s members serve diverse populations and ensure that everyone has access to

11 health care regardless of their ability to pay, their immigration status, or their individual

12 circumstances. The CHCs serve 6.9 million California residents every year. Approximately 72%

13 of the CHCs’ patients are Latino, Asian Pacific Islander, or Black. CHCs serve patients of various

14 immigrant statuses, including immigrants who will be subject to the public charge admission test

15 when they seek to extend or change their nonimmigrant visas or apply for lawful permanent

16 residence

17

18. Sixty percent of the patients served by CPCA’s members are enrolled in Medi-Cal,

18 the Medicaid program in California. This means that CHCs serve more than 4 million Medi-Cal

19 enrollees.

20

19. CPCA’s members will face significant financial harm as a result of the Rule.

21 CPCA expects CHCs’ patients will disenroll from public benefits, including Medi-Cal, because of

22 the changes to the public charge test. Specifically, CPCA predicts that hundreds of thousands of

23 its members’ patients will disenroll from Medi-Cal as a result of the Rule, causing the CHCs to

24 lose millions of dollars annually in Medi-Cal reimbursements. This will lead to an increase in

25 uninsured patients. CPCA anticipates that a number of these patients will continue seeking

26 services at CHCs, forcing the CHCs to incur increased costs serving uninsured patients while

27 experiencing a dramatic drop in revenue.

28

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1

20. One of CPCA’s members, Asian Health Services (“AHS”), is a nonprofit

2 community health center headquartered in Oakland, California. AHS provides health services at

3 more than a dozen locations in Oakland and San Leandro, California and has 28,000 active

4 patients of all ages. AHS is a member in good standing of CPCA and has been a member since

5 1994, when CPCA was formed.

6

21. Founded in 1974, AHS’s mission is to serve and advocate for the medically

7 underserved, including the immigrant and refugee Asian community, and to ensure equal access to

8 health care for all, regardless of income, insurance status, immigration status, language, or culture.

9 As a federally qualified health center, AHS offers services to uninsured patients on a sliding fee

10 scale. Individuals with incomes below 100% of the federal poverty level receive most services at

11 no cost. Approximately 93% of AHS patients are Asian; 2% are Latino; and 2% are Black. In

12 addition, approximately 58 % of AHS patients are not yet United States citizens. For 73% of

13 patients, English is not their primary language. Roughly two-thirds of AHS patients are enrolled

14 in Medi-Cal, which is the Medicaid program in California.

15

22. The Regulation will cause irreparable harm to many AHS patients and to AHS.

16 The Regulation will have a substantial chilling effect on AHS patients’ access to health care

17 and/or use of their health coverage. Some patients will stop receiving services altogether based on

18 fears about the effect on their or their children’s immigration status. Other AHS patients will

19 continue to receive services from AHS, but will decline to enroll in or will disenroll from Medi-

20 Cal due to the Rule.

21

23. As a result of the Regulation, AHS will incur significant financial loss. Medi-Cal

22 reimbursements account for 52% of AHS’s annual budget. AHS estimates that as its patients

23 disenroll from or decline to enroll in Medi-Cal, it will lose as much as $5.2 million in Medi-Cal

24 reimbursements every year. AHS will have no way to recoup the cost of the services provided to

25 those patients who disenroll but continue to receive services. In addition to losing Medi-Cal

26 funding, AHS will have to divert considerable resources to responding to the Regulation. For

27 example, AHS expects staff to spend time responding to individual patients’ questions and

28 concerns about enrolling in or remaining enrolled in Medi-Cal and/or CalFresh given the

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1 Regulation. These efforts will leave staff members with less time to help patients enroll in health

2 coverage and SNAP, schedule appointments, and provide case management, referrals and care

3 coordination.

4

24. Plaintiff Maternal and Child Health Access (“MCHA”) works to ensure access to

5 quality and comprehensive health care for all, with a focus on perinatal care and child health.

6 MCHA works with low-income immigrant families who access services through California’s

7 SNAP program, California’s Medicaid program, and Section 8 housing. Since the 1990s,

8 MCHA’s purpose has been to support women and their families so they can be healthy and

9 financially independent. MCHA offers enrollment assistance programs to help people of all

10 genders and ages secure and navigate SNAP and health-care coverage, training and education for

11 organizations and individuals about eligibility for benefit programs for low-income and immigrant

12 families, plus home visits, weekly classes, and mental health supports to help families succeed.

13

25. The Regulation will frustrate MCHA’s mission by reducing access to nutrition,

14 medical care, and adequate housing. Immigrant families who MCHA serves are already

15 disenrolling from public benefit programs, such as SNAP and Medicaid, based on fears that using

16 those programs will affect their future immigration relief options. Women have refrained and will

17 continue to refrain from seeking health services, food, and other programs for themselves and their

18 children, based on fears that using those benefits will prevent them from adjusting status. If the

19 Regulation is implemented, MCHA expects even more women to refrain from seeking Medicaid

20 and other necessary health services, food, and other programs for themselves and their children,

21 based on fears that using those benefits will prevent them from adjusting status. To support their

22 babies, pregnant women need, on average, an additional 300 calories per day. Yet MCHA already

23 sees women pulling themselves out of nutrition support programs based on fear of public charge,

24 and anticipates even more SNAP disenrollments if the rule is implemented. Losing access to

25 critical health and nutrition services during pregnancy and early childhood could negatively affect

26 MCHA’s clients for years.

27

26. Their clients’ disenrollment from health, housing, and nutrition programs will make

28 it difficult for MCHA to continue its operations. MCHA will be forced to shift its capacity and

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1 divert its resources to respond to the Regulation, whose complexity makes simple reassuring

2 messages impossible. MCHA will need to identify alternative forms of assistance for those who

3 disenroll from benefit programs, develop and implement additional measures so that mothers and

4 families feel comfortable continuing to use MCHA’s home-visitation program, and engage in

5 substantial community education to try to combat the Regulation’s chilling effect. If the

6 Regulation goes into effect, MCHA will be forced to address client situations that have worsened

7 over time, such as prolonged malnutrition and delayed access to medical care. These heightened

8 client problems will require additional staff time. To respond to the Regulation, MCHA will also

9 need to allocate staff members who can follow up with individuals who raise concerns about the

10 Regulation.

11

27. Plaintiff Farmworker Justice (“FJ”) is a national non-profit organization

12 representing farmworkers who perform agricultural work in the United States and their families.

13 FJ’s mission is to empower migrant and seasonal farmworkers to improve their living and working

14 conditions, health, occupational safety, and access to justice. It also provides policy analysis and

15 advocacy, legal advocacy, training, and technical assistance to farmworkers, attorneys, migrant

16 health centers, and immigrant advocacy groups. FJ represents approximately 2 million

17 farmworkers who work in the United States, as well as their spouses and children who, combined,

18 represent approximately 4.5 million individuals in the United States. A large and growing number

19 of farmworkers have H-2A non-immigrant visas, which are for temporary agricultural workers.

20

28. The Regulation will disadvantage many farmworkers who seek to adjust to lawful

21 permanent resident (LPR) status or to obtain or extend their non-immigrant H-2A status. For

22 example, the Regulation penalizes individuals with low incomes, and farm laborers’ wages are

23 among the lowest in the nation. FJ also represents immigrant farmworker families who receive

24 Medicaid and SNAP, and who will feel compelled by the Regulation to forgo those benefits in

25 order to remain eligible to adjust their status. Farmworkers are disenrolling eligible U.S. citizen

26 children from Medicaid due to fears that their children’s health care coverage will affect their

27 ability to seek immigration relief. They also fear that this may lead eventually to the forced

28

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1 separation of their family and are not seeking health coverage or services at health centers for the

2 same reasons.

3

29. The Regulation has forced FJ to divert substantial resources in order to develop and

4 disseminate information about the Regulation that addresses the farmworker communities’ needs,

5 thus reducing the organization’s ability to engage extensively in other issues that affect

6 farmworker families and advance FJ’s mission.

7

30. Plaintiff COUNCIL ON AMERICAN-ISLAMIC RELATIONS–CALIFORNIA

8 (“CAIR-CA”) is dedicated to enhancing the understanding of Islam, protecting civil rights,

9 promoting justice, and empowering American Muslims. CAIR-CA was established in 1994 and

10 has four offices throughout the state. CAIR-CA serves Arab, Middle Eastern, Muslim, and South

11 Asian (“AMEMSA”) communities. Among other activities, CAIR-CA provides direct

12 immigration assistance, including by helping AMEMSA communities with adjustment of status

13 applications.

14

31. CAIR-CA has clients who are seeking or will seek to adjust their status in the

15 future. CAIR-CA also has clients who use public benefits, including Medicaid, public housing,

16 and SNAP. CAIR-CA’s clients have incomes at or below 250% of the Federal Poverty Level

17 (“FPL”). The Regulation will frustrate CAIR-CA’s mission to protect civil rights, promote

18 justice, and empower American Muslims. CAIR-CA will need to divert its resources in an attempt

19 to reduce the harm stemming from Defendants’ Regulation, forcing CAIR-CA staff members to

20 reduce their capacity in other areas that further CAIR-CA’s mission. Moreover, the Regulation is

21 causing many of the immigrant families that CAIR-CA serves to refrain from seeking

22 supplemental benefits or to disenroll from those programs, cutting off important services and

23 destabilizing their families and their communities.

24

32. Plaintiff AFRICAN COMMUNITIES TOGETHER (“ACT”) is a membership

25 organization of African immigrant members fighting for civil rights, opportunity, and a better life

26 for African immigrant families residing in the United States. ACT serves African immigrants

27 seeking legal assistance with immigration relief, including by providing assistance with

28 adjustment of status applications. ACT has approximately 3,000 members, offices in New York

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1 and the District of Columbia, and organizes a national network of African immigrant- serving

2 organizations. ACT serves immigrant families who are originally from Nigeria, Ghana, Liberia,

3 Ethiopia, and other African nations.

4

33. Defendants’ Regulation will frustrate ACT’s mission by directly restricting the

5 number of African immigrants who will be able to adjust to LPR status or maintain or change their

6 non-immigrant immigration status due to the public charge test, thus eliminating essential

7 pathways for this population to obtain LPR status. This is because ACT’s clients who will seek to

8 adjust status include individuals who are low-income and who possess other characteristics

9 considered to be negative factors under the Regulation. ACT also has clients who receive

10 Medicaid, SNAP, and other public benefits. Moreover, ACT will be forced to divert its resources

11 to combat the chilling effects and discriminatory message of the Regulation, forcing the

12 organization to spend less time on its other areas of work and to reduce the overall number of

13 cases the organization can take on. The Regulation is discouraging ACT’s clients from accessing

14 social services for fear that receipt of any public benefit will affect any future attempt to adjust,

15 maintain or change their immigration status, causing harm to individuals and families who are

16 eligible for those benefits.

17

34. Plaintiff LEGAL AID SOCIETY OF SAN MATEO COUNTY (“LEGAL AID”)

18 has been the primary legal service provider for low-income and vulnerable residents in San Mateo

19 County for over sixty years. LEGAL AID engages in community education, legal representation,

20 systemic advocacy, and collaboration with community partners to help vulnerable community

21 members secure safe, affordable housing, access health care, achieve economic security, and

22 obtain immigration benefits for which they are eligible. Legal Aid has devoted significant

23 resources to educating San Mateo County’s immigrant residents about the various public programs

24 for which they are eligible, including Medicaid and SNAP, as well as about the public charge

25 inadmissibility test.

26

35. Some of LEGAL AID’s clients will be subject to the Regulation when they seek to

27 adjust their status or extend or change their non-immigrant visas. Many of Legal Aid’s clients are

28 likely to disenroll from, or fear enrolling in, these important programs. Some clients may be

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1 deemed public charges under the Regulation because they either use or will become eligible for

2 public benefits, including Medicaid, SNAP, and housing benefits and have other characteristics

3 that will weigh against them, including low household incomes, limited-English proficiency, and

4 large household sizes. Access to these programs enables LEGAL AID clients to thrive.

5

36. The Regulation frustrates LEGAL AID’s mission to fight social injustice by

6 helping San Mateo County residents obtain services through legal advocacy, and to help low-

7 income individuals achieve self-sufficiency. LEGAL AID will need to divert its resources to help

8 San Mateo County’s immigrant residents and their families who are either directly subject to the

9 Regulation or harmed because of the Regulation’s chilling effect. These diversions will reduce

10 Legal Aid’s capacity to take additional cases.

11

37. Plaintiff CENTRAL AMERICAN RESOURCE CENTER of Los Angeles

12 (“CARECEN”) is a civil rights, social services and community empowerment organization.

13 Founded by Salvadoran refugees in 1983, it is now the largest Central American immigrant-rights

14 organization in the country. CARECEN’s mission is to empower Central Americans and all

15 immigrants by defending human and civil rights, working for social and economic justice, and

16 promoting cultural diversity, including by providing pro bono and low-cost immigration legal

17 services to low-income immigrants. Most of CARECEN’s legal work consists of legal counseling

18 and representation to low-income individuals seeking admission and LPR status. CARECEN also

19 engages in community outreach and education, including about the process for obtaining lawful

20 permanent residence.

21

38. The Regulation will frustrate the core component of CARECEN’s mission to

22 provide legal representation to individuals seeking admission and adjustment to lawful permanent

23 residence. More than half of CARECEN’s clients receive, have received, or have household

24 members who receive or have received one or more forms of public assistance, including

25 Medicaid and SNAP. About half of CARECEN’s clients’ household incomes fall below the

26 federal poverty line, and nearly all of its clients’ household incomes fall below 250% of the FPL.

27 CARECEN’s legal staff will have to expend significant additional time interviewing clients about

28 their public-benefits history and assessing whether they are harmed by the Regulation, as well as

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1 advising clients about the potential impact of the Regulation if they receive certain benefits in the

2 future. CARECEN will also expend considerable time educating the community about the

3 Regulation as well as training its own staff so they can properly counsel clients who may be

4 adversely affected by the Regulation. This will divert significant resources away from other

5 aspects of CARECEN’s mission.

6

39. Plaintiff KOREAN RESOURCE CENTER (“KRC”) is a non-profit community and

7 membership organization empowering low-income, immigrants, Asian American and Pacific

8 Islander, and people of color communities in Southern California. KRC’s mission is to empower

9 members and clients, using a holistic approach, by integrating services, education, culture,

10 organizing, and coalition building, all of which seek to help individuals thrive. KRC has offices in

11 Los Angeles and Orange County.

12

40. KRC engages in community education and organizing, systemic advocacy, and

13 legal representation. KRC’s legal representation in immigration matters includes family-based

14 adjustment of status applications, naturalization, Deferred Action for Childhood Arrival (DACA)

15 renewals, and deportation defense. KRC also assists members, particularly seniors, with public

16 benefits, such as Medicaid, SNAP and subsidized housing. The Regulation will cause KRC

17 members and their families to disenroll from, or to fear enrolling in these important programs.

18

41. The Regulation will frustrate KRC’s mission by directly reducing the number of

19 clients and members who will be able to adjust to LPR status or maintain or change their non-

20 immigrant immigration status due to the public charge test. KRC’s members and clients include

21 individuals who are low-income and receive Medicaid, SNAP, subsidized housing and other

22 public benefits, and who possess other characteristics considered to be negative factors under the

23 Regulation, including being elderly, having low incomes, and having limited-English proficiency.

24 KRC believes its individual members will be unable to adjust status as a result of the Regulation.

25

42. In addition, the Regulation will force KRC to spend more resources on immigration

26 consultations and public benefits assistance.

27

43. KRC will be forced to divert its resources to combat the chilling effects of the

28 Regulation, forcing the organization to spend less time on its other areas of work, such as services

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1 for survivors of domestic violence. KRC has already had to expend considerable resources on

2 community education on public charge, including training Korean ethnic media to correct

3 misinformation about the public charge rule. KRC expects to conduct additional trainings to the

4 media and members on public charge because of the Regulation’s upcoming implementation.

5 II. Defendants

6

44. Defendant Donald J. Trump is the President of the United States. He is sued in his

7 official capacity.

8

45. Defendant United States Department of Homeland Security (“DHS”) is a federal

9 agency headquartered in Washington, D.C.

10

46. Defendant United States Citizenship and Immigration Services (“USCIS”) is a

11 component agency of DHS, which is responsible for the adjudication of applications for

12 adjustment of status and for extensions or modifications of stay by non-immigrant visa holders.

13 USCIS is the component of DHS that promulgated the public charge Regulation.

14

47. Defendant Kenneth T. Cuccinelli is the Acting Director of USCIS. He is sued in

15 his official capacity.

16

48. Defendant Kevin K. McAleenan is Acting Secretary of DHS. He is sued in his

17 official capacity.

18

JURISDICTION AND VENUE

19

49. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as this case

20 arises under the U.S. Constitution and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.

21

50. Venue properly lies in this district because Plaintiffs LA CLÍNICA, CPCA,

22 LEGAL AID, CAIR-CA, and FJ work and provide services in this district. 28 U.S.C.

23 § 1391(e)(1). Venue also properly lies in this district because a substantial part of the events or

24 omissions giving rise to this action occurred in the district. 28 U.S.C. § 1391(b).

25

BACKGROUND

26 I. Current Statutory Framework

27

51. The INA is the primary statute governing immigration to the United States. Under

28 the INA, if a current resident of the United States seeks LPR status through a family-based or

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1 employment-based petition, the first step is to file the petition and, if it is approved, wait until a

2 visa becomes available. If the resident has been admitted or paroled into the United States and

3 meets certain other conditions, the individual may file an application for adjustment of status with

4 USCIS, in most cases only once a visa becomes available. In determining whether a noncitizen is

5 eligible for adjustment of status, or whether an LPR who has been outside the United States for

6 more than 180 days can reenter the country, DHS officers assess whether the applicant is

7 inadmissible under section 212 of the INA (8 U.S.C. § 1182).

8

52. Individuals seeking admission as nonimmigrants, such as temporary agricultural or

9 health care workers, foreign students, and cultural exchange visitors, are also assessed for

10 inadmissibility before receiving a visa. Most nonimmigrant visa holders may apply to extend or

11 change their visa provided certain conditions are satisfied, such as compliance with the terms of

12 their current visa.

13

53. Section 212(a)(4) of the INA provides that “[a]ny alien who, in the opinion of the

14 consular officer at the time of application for a visa, or in the opinion of the Attorney General at

15 the time of application for admission or adjustment of status, is likely at any time to become a

16 public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). This is commonly known as the

17 “public charge” ground of inadmissibility.

18

54. The statute further directs that an adjudicator making a determination on the public

19 charge ground “shall at a minimum consider the alien’s (I) age; (II) health; (III) family status; (IV)

20 assets, resources, and financial status; and (V) education and skills.” 8 U.S.C. § 1182(a)(4)(B)(i).

21 Together these five factors are referred to as the “totality of circumstances” test.

22

55. The adjudicator “may also consider any affidavit of support.” 8 U.S.C.

23 § 1182(a)(4)(B)(ii). The U.S. citizen or LPR sponsor who signs the affidavit of support pledges to

24 accept financial responsibility for the immigrant who is seeking admission or adjustment of status

25 and specifically pledges to maintain the sponsored immigrant “at an annual income that is not less

26 than 125 percent of the Federal poverty line during the period in which the affidavit is

27 enforceable.” 8 U.S.C. § 1183a(a)(1)(A). The affidavit is a legally enforceable contract between

28 the sponsor and the U.S. government.

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1 II. The Public Charge Statute and its Long-Standing Meaning.

2

56. For over a century, the term “public charge” has referred to persons who cannot

3 care for themselves and are thus primarily dependent on the government to avoid destitution.

4

57. The term first appeared in an 1882 act barring the admission of “any convict,

5 lunatic, idiot, or any person unable to take care of himself or herself without becoming a public

6 charge.” An Act to Regulate Immigration, ch. 376, § 2, 22 Stat. 214 (1882).

7

58. The Immigration Act of 1907 included those “likely to become a public charge”

8 among the categories of individuals barred entry, which also included “idiots,” “imbeciles,”

9 “insane persons,” “paupers,” “professional beggars,” and “persons . . . with a loathsome or

10 dangerous contagious disease.” An Act to regulate the immigration of aliens into the United

11 States, Pub. L. No. 96, § 2, 34 Stat. 898, 898–99 (1907).

12

59. As the Second Circuit recognized, “The excluded classes with which this provision

13 is associated are significant. It appears between ‘paupers’ and ‘professional beggars.’” Howe v.

14 United States, 247 F. 292, 294 (2d Cir. 1917). The court concluded, “We are convinced that

15 Congress meant the act to exclude persons who were likely to become occupants of almshouses

16 for want of means with which to support themselves in the future.” Id.; see also Gegiow v.

17 Uhl, 239 U.S. 3, 10 (1915) (reasoning that “public charge” had “to be read as generically similar

18 to the others mentioned before and after” and rejecting an attempt to exclude individuals on public

19 charge grounds).

20

60. In 1952 Congress enacted § 212 of the INA, which excluded from admissibility

21 individuals “who, in the opinion of the consular officer at the time of application for a visa, or in

22 the opinion of the Attorney General at the time of application for admission, are likely at any time

23 to become public charges.” Pub. L. 414, ch. 2, § 212(a)(15), 66 Stat. 163, 183 (1952).

24

61. The Department of Justice has recognized courts’ longstanding interpretation of the

25 term “public charge” to mean a person who is “destitute.” For instance, the Department has

26 explained that “[t]he words ‘public charge’ had their ordinary meaning: that is to say, a money

27 charge upon or an expense to the public for support and care, the alien being destitute.” Matter of

28

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1 Harutunian, 14 I. & N. Dec. 583, 586 (BIA 1974). Congress has not altered this meaning of

2 “public charge,” though it has revisited the topic on many occasions.

3

62. In the INA of 1965, for instance, Congress deliberately overturned decades-old

4 laws that restricted immigration from certain global regions and opened the U.S. to immigrants

5 from all over the world. But Congress made no change to the public charge test.

6

63. In 1986, Congress enacted the Immigration Reform and Control Act (“IRCA”).

7 Congress again did not modify the “public charge” test. But Congress did provide additional

8 grounds for waivers allowing individuals deemed a public charge to overcome that determination.

9

64. Consistent with prior agency interpretations, the Immigration and Naturalization

10 Service (“INS”)—the previous federal agency tasked with administering immigration

11 applications—explained in 1987 that applicants would not be subject to exclusion on public-

12 charge grounds if “the applicant demonstrates a history of employment in the United States

13 evidencing self-support without the receipt of public cash assistance.” Adjustment of Status for

14 Certain Aliens, 52 Fed. Reg. 16,205, 16,211 (May 1, 1987) (emphasis added). The agency defined

15 “public cash assistance” as “income or needs-based monetary assistance . . . designed to meet

16 subsistence levels.” Id. at 16,209 (emphasis added). The agency specifically excluded “assistance

17 in kind, such as food stamps, public housing, or other non-cash benefits” from those benefits that

18 would render an individual a public charge. Id.

19

65. Congress again declined to alter the “public charge” test in the Immigration Act of

20 1990, despite making a number of other changes to immigration-related statutes.

21

66. In 1991, the State Department—an agency that also has primary responsibility for

22 implementing the INA’s public charge provisions—recognized in its Foreign Affairs Manual that

23 the essential issue in determining if an individual is a public charge within the meaning of INA

24 212(a)(4) is “whether the purpose of the public program in which the individual is participating is

25 specifically designed to support individuals unable to provide for themselves.” It recognized that

26 the purpose of the food stamp program is “to strengthen the agricultural economy and help achieve

27 a fuller use of food abundances through improving levels of nutrition among low-income

28 households. It has thus a number of objectives of a general nature and is not simply a matter of

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1 welfare or relief as such . . . [A] program that is essentially supplementary in nature, in the sense

2 of providing training, services, food, etc. to augment the standard of living, rather than to

3 undertake directly the support of the recipients does not fall within the scope of INA 212(a)(4).”

4 (emphasis added).

5

67. In 1996, Congress enacted the Personal Responsibility and Work Opportunity

6 Reconciliation Act of 1996 (“PRWORA”), which imposed restrictions on immigrant eligibility for

7 certain public benefits. But Congress did not alter the “public charge” test.

8

68. Congress again declined to change the meaning of “public charge” one month later

9 when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

10 (“IIRIRA”). Congress considered but rejected, an expanded definition of “public charge” that

11 would have included food, health care, and housing assistance.

12

69. Instead, IIRIRA codified the totality–of-the-circumstances test, which had been

13 developed in case law and administrative policies. 8 U.S.C. § 1182(a)(4)(B)(i).

14

70. IIRIRA also introduced the affidavit of support that could be used to help an

15 immigrant overcome the public-charge barrier, so long as the sponsor pledged to maintain the

16 sponsored immigrant’s at or above 125% of the FPL. 8 U.S.C. §§ 1182(a)(4)(B)(ii);

17 1183a(a)(1)(A).

18

71. Following IIRIRA, the INS issued guidance explaining that the statute “has not

19 altered the standards used to determine the likelihood of an alien to become a public charge nor

20 has it significantly changed the criteria to be considered in determining such a likelihood.”

21 Immigration and Naturalization Serv., Dep’t of Justice, Public Charge: INA Sections 212(A)(4)

22 and 237(A)(5)—Duration of Departure for LPRs and Repayment of Public Benefits (Dec. 16,

23 1997).

24

72. Similarly, in 1998, the State Department stated that IIRIRA did “not change[] the

25 long-standing legal presumption that an able-bodied, employable individual will be able to work

26 upon arrival in the United States” and thus not become a public charge. Dep’t of State, I-864

27 Affidavit of Support: Update No. 14—Commitment to Provide Assistance, Unclas State 102426

28 (Cable dated June 8, 1998). The INS further stated “[t]he presumption that the applicant will find

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1 work coupled with the fact that the [affidavit of support] is a legally enforceable contract will

2 provide in most cases a sufficient basis to accept a sponsor’s . . . technically sufficient [affidavit]

3 as overcoming the public charge ground.” Id.

4

73. Although the INS and State Department recognized that IIRIRA made no changes

5 to the longstanding meaning or interpretation of the term “public charge,” the INS was concerned

6 that, because Congress passed both IIRIRA and PRWORA close in time, “confusion about the

7 relationship between the receipt of public benefits and the concept of ‘public charge’ ha[d]

8 deterred eligible [non-citizens] and their families, including U.S. citizen children, from seeking

9 important health and nutrition benefits that they are legally entitled to receive.” Field Guidance on

10 Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,692 (May

11 26, 1999) (“1999 Field Guidance”).

12

74. The INS recognized that “[t]his reluctance to access benefits has an adverse impact

13 not just on the potential recipients, but on public health and the general welfare.” Id., 64 Fed. Reg.

14 at 28,692. The uncertainty following IIRIRA and PRWORA was “undermining the Government

15 policies of increasing access to health care and helping people to become self-sufficient.”

16 Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676, 28,677

17 (proposed May 26, 1999) (“Public Charge Grounds”).

18

75. To alleviate that confusion and its deleterious effects, the INS published two

19 documents in the 1999 Federal Register to confirm that the longstanding historic understanding of

20 the term “public charge” remained operative.

21

76. The first was a Notice of Proposed Rulemaking (“NPRM”) in which the INS

22 confirmed that the term “public charge” meant an individual “who is likely to become . . .

23 primarily dependent on the Government for subsistence, as demonstrated by either the receipt of

24 public cash assistance for income maintenance or institutionalization for long-term care at

25 Government expense.” Public Charge Grounds, 64 Fed. Reg. at 28,677. The agency never issued

26 a final rule.

27

77. The second was the INS Field Guide that aimed to “help alleviate public confusion

28 over the meaning of the term ‘public charge’ in immigration law and its relationship to the receipt

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1 of Federal, State, and local public benefits” and to “provide aliens with better guidance as to the

2 types of public benefits that will and will not be considered in public charge determinations.”

3 1999 Field Guidance, 64 Fed. Reg. 28,689.

4

78. These documents dictated that agencies consider only receipt of cash assistance for

5 income maintenance (such as Temporary Assistance for Needy Families, Supplemental Security

6 Income, and state equivalents) and publicly funded long-term institutionalization in making the

7 public-charge determination.

8

79. In explaining its interpretation of “public charge,” the INS recognized that “federal,

9 state, and local benefits are increasingly being made available to families with incomes far above

10 the poverty level, reflecting broad public policy decisions about improving general public health

11 and nutrition, promoting education, and assisting working-poor families in the process of

12 becoming self-sufficient.” Id., 64 Fed. Reg. at 28,692. This meant that “participation in such non-

13 cash programs is not evidence of poverty or dependence.” Id.

14

80. The INS further observed that non-cash benefits “are by their nature supplemental

15 and do not, alone or in combination, provide sufficient resources to support an individual or

16 family.” Id. By focusing only on cash assistance for income maintenance and long-term

17 institutionalization, the INS could thus “identify those who are primarily dependent on the

18 government for subsistence without inhibiting access to non-cash benefits that serve important

19 public interests.” Id.

20

81. The INS also explained that the focus on cash benefits for making the public-

21 charge determination was consistent with the advice provided by federal benefits agencies,

22 including the Department of Health and Human Services, the Department of Agriculture, and the

23 Social Security Administration. Each department had concurred that “receipt of cash assistance

24 for income maintenance is the best evidence of primary dependence on the Government” because

25 “non-cash benefits generally provide supplementary support . . . to low-income working families

26 to sustain and improve their ability to remain self-sufficient.” Public Charge Grounds, 64 Fed.

27 Reg. at 28,677–78.

28

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1

82. The INS reasoned further, based on input from the Department of Health and

2 Human Services, that while as a general matter, it could not “conceive of a situation where an

3 individual … could support himself or his family solely on non-cash benefits so as to be primarily

4 dependent on the [G]overnment,” it made one exception for long-term institutionalization at

5 government expense, which should be considered in the public charge determination. Id., 64 Fed.

6 Reg. at 28,678.

7

83. In addition, under the 1999 Field Guidance, forms of cash not intended for income

8 maintenance and cash benefits that have been earned, such as government pension benefits or

9 veteran’s benefits, were not considered cash benefits for purposes of the public-charge

10 determination and should not be taken into account. Further, “[p]ast receipt of non-cash benefits

11 [such as Medicaid, CHIP, nutrition programs, housing benefits, child care services, energy

12 assistance, emergency disaster relief, foster care and adoption assistance, educational assistance,

13 job training programs, and in-kind, community-based programs, as well as similar state and local

14 programs] should be excluded from consideration for public charge purposes.” 64 Fed. Reg. at

15 28,693.

16

84. The INS noted that the “primary dependence model of public assistance was the

17 backdrop against which the ‘public charge’ concept in immigration law developed in the 1800s.”

18 Since then, legislators, judges, and executive officials have consistently understood the term to

19 refer to those who are primarily dependent on the government to avoid destitution. This is of

20 particular importance given the many times that Congress has sought to re-employ the term over

21 the years including in 1891, 1903, 1907, 1917, 1952, 1990, and 1996. At no time has Congress

22 widened the concept of “public charge” to include nutrition, health care (other than

23 institutionalization), housing, or other non-cash programs, even as public assistance programs

24 expanded and changed over the years.

25

85. Although the 1999 NPRM never became a final rule, these regulations and the

26 Field Guidance governed Defendants’ public charge policy until the new Regulation, at issue in

27 this litigation, was finalized.

28

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1

86. Indeed, the Congressional Research Service explained that, until the new

2 Regulation, Defendants’ position had been consistent and clear: “USCIS, in making public charge

3 determination for aliens applying for adjustment to LPR status, only considers cash income-

4 maintenance benefits and government-funded institutionalization for long-term care. Cash

5 assistance for income maintenance . . . ‘includes Supplemental Security Income (SSI), cash

6 assistance from the Temporary Assistance for Needy Families (TANF) program and state or local

7 cash assistance programs for income maintenance, often called “general assistance” programs’

8 . . . . [A]n alien’s past or current receipt of these benefits or of government funded long-term care

9 does not automatically lead to a determination of inadmissibility, but instead only factors into the

10 prospective analysis under the totality of the circumstances test.” Congressional Research Service,

11 Immigration: Frequently Asked Questions about “Public Charge” at 7 (Sept. 19, 2018),

12 https://fas.org/sgp/crs/homesec/R45313.pdf.

13

87. In fact, Congress has expanded immigrants’ access to some of the benefits that had

14 been explicitly excluded from the public charge determination. In the 2002 Farm Bill, for

15 example, Congress restored eligibility for food stamps (now known as “SNAP”) to immigrant

16 children, immigrants receiving disability benefits, and adults who had lived in the United States in

17 a “qualified” immigrant status for five years. Farm Security and Rural Investment Act of 2002:

18 Pub L. No. 107-171 (May 13, 2002).

19

88. Although Congress and administrative agencies have interpreted “public charge”

20 consistently over time, altering the definition of “public charge” has been a clear priority from the

21 early days of the Trump administration. During the President’s first month in office, members of

22 the administration drafted an executive order to reinterpret the term. That executive order was

23 leaked to the public. The administration never issued the executive order.

24

89. Instead, in 2017, the Trump Administration endorsed the Reforming American

25 Immigration for Strong Employment (“RAISE”) Act. That bill that would have eliminated some

26 of the family-based admission preferences created by the 1965 Act and established a point-based

27 system for evaluating potential immigrants. The system would have awarded points based on

28 factors including age, formal education, English language proficiency, and highly-compensated

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1 employment. The RAISE Act would have disadvantaged many groups of potential immigrants,

2 including applicants who had family ties to U.S. citizens but who had limited formal education or

3 employment history and middle-aged and older adults.

4

90. In 2017, Congress once again rejected changes to the existing immigration system

5 and declined to pass the RAISE Act.

6

91. Subsequently, on October 10, 2018, the Department of Homeland Security

7 published its Notice of Proposed Rulemaking for the Regulation.

8 III. Defendants’ New Public Charge Regulation

9

92. On August 13, 2019, the Department of Homeland Security published the

10 Regulation.

11

93. The Regulation drastically redefines the term “public charge.” Under the

12 Regulation, “public charge” means a noncitizen “who receives one or more public benefits, as

13 defined in paragraph (b) of this section, for more than 12 months in the aggregate within any 36-

14 month period.” Inadmissibility of Public Charge Grounds, 84 Fed. Reg. 41,292, 41,501 (Aug. 14,

15 2019) (to be codified as 8 CFR § 212.21(a)). Paragraph (b) defines “public benefit” to mean any

16 receipt of federal, state, local, or tribal cash assistance for income maintenance and includes

17 receipt of health assistance through Medicaid (with some exceptions); SNAP benefits; and

18 housing assistance through Section 8 housing choice vouchers, project-based Section 8 rental

19 assistance, or public housing. Several of these non-cash benefits were not included in prior

20 agency definitions of “public charge,” and were, in fact, specifically excluded under agency

21 guidance. The Regulation counts all benefits equally, regardless of the value of the benefit

22 received.

23

94. The Regulation next defines the term “likely at any time to become a public

24 charge.” Id. (to be codified as 8 CFR § 212.21(c)); see 8 U.S.C. § 1182(a)(4)(A). Under the

25 Regulation, “[l]ikely at any time to become a public charge means more likely than not at any time

26 in the future to become a public charge, as defined [above], based on the totality of the alien’s

27 circumstances.”

28

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1

95. Under the Regulation, the totality of the circumstances determination is prospective

2 and looks to “all factors that are relevant to whether the alien is more likely than not at any time in

3 the future [to receive one or more public benefit for 12 months over a 36-month period].” 84 Fed.

4 Reg. at 41,502 (to be codified as 8 CFR § 212.22(a)). As prescribed by Section 1182(a)(4)(B), the

5 determination must consider, at minimum, the individual’s “age; health, family status, education

6 and skills, and assets, resources, and financial status.” 84 Fed. Reg. at 41,502 (to be codified as 8

7 CFR § 212.22(b)).

8

96. As to age, the agency must consider whether the noncitizen is between 18 and the

9 minimum retirement age for Social Security. Id. (to be codified as 8 CFR § 212.22(b)(1)).

10

97. With regard to health, the agency must consider whether the individual’s health,

11 including any diagnosed medical conditions, makes the individual more or less likely to be a

12 public charge. Id. (to be codified as 8 CFR § 212.22(b)(2)).

13

98. The Regulation next requires that the agency consider whether the individual’s

14 household size makes the individual more or less likely to become a public charge. Id. (to be

15 codified as 8 CFR § 212.22(b)(3)).

16

99. As to assets, resources, and financial status, the Regulation requires the agency to

17 consider, inter alia, whether the individual’s household’s annual gross income is at least 125% of

18 the FPL (100% for active duty military personnel). If it is under that amount, the agency must

19 consider whether the individual has “significant assets.” Id. (to be codified as 8 CFR §

20 212.22(b)(4)(i)). The Regulation also requires the agency to examine whether the individual has

21 sufficient assets and resources to cover “any reasonably foreseeable medical costs;” has any

22 financial liabilities; and has applied for, been certified to receive, or received public benefits. Id.

23

100. As evidence, the agency must look to the noncitizen’s sources of income, other

24 assets and resources, credit score, whether the noncitizen has private health insurance, and whether

25 the noncitizen has applied for, been certified or approved for, disenrolled or requested to be

26 disenrolled from, or received public benefits. Id. at 41,503 (to be codified as 8 CFR §

27 212.22(b)(4)(ii)).

28

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1

101. Finally, as to education and skills, the agency is to look to whether the noncitizen

2 “has adequate education and skills to either obtain or maintain lawful employment with an income

3 sufficient to avoid being more likely than not to become a public charge,” including evidence of

4 past work history, education level, and English language proficiency. Id. (to be codified as 8 CFR

5 § 212.22(b)(5)).

6

102. The Regulation selects a subset of factors to be “heavily weighted” in the

7 determination. Id. at 41,504 (to be codified as 8 CFR § 212.22(c)(1)). The Regulation adopts the

8 following “heavily weighted negative factors,” under 8 CFR § 212.22(c)(1):

9

(A) The noncitizen is not a full-time student and is authorized to work, but is

10

unable to demonstrate current employment, recent employment history, or a

11

reasonable prospect of future employment;

12

(B) The noncitizen has received, or been certified or approved to receive, public

13

benefits for more than 12 months within any 36-month period;

14

(C) The noncitizen has been diagnosed with a medical condition that will

15

interfere with the alien’s ability to support him or herself;

16

(D) The noncitizen is uninsured and has neither the prospect of receiving private

17

insurance nor the financial resources to pay for reasonably foreseeable

18

expenses due to a medical condition; and

19

(E) The noncitizen has previously been found inadmissible or deportable on

20

public charge grounds.

21

103. The Regulation includes as “heavily weighted positive factors”:

22

(A) The noncitizen’s “household has financial assets, resources, and support,”

23

excluding illegal activities or public-benefit income, of at least 250% of

24

FPL. Id. (to be codified as 8 CFR § 212.22(c)(2)(i)). That income threshold

25

equates to over $64,000 a year for a family of four, more than the median

26

household income for households of any size in the United States.

27

(B) The noncitizen is authorized to work and has a legal annual income of at

28

least 250 percent of the FPL for her household size; and

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(C) The noncitizen has private health insurance, excluding health insurance

2

subsidized by premium tax credits established by the Patient Protection and

3

Affordable Care Act.

4

104. The Regulation adds new, nonstatuory factors for USCIS to consider in evaluating

5 the affidavit of support. USCIS must now also evaluate the sponsor’s annual income, the

6 sponsor’s relationship to the applicant, the likelihood that the sponsor will actually provide the

7 required financial support, “and any other related considerations.” Id. (to be codified as 8 CFR §

8 212.22(b)(7)).

9

105. The Regulation also requires applicants to compile extensive documentation of

10 their finances and to fill out a newly developed 15-page form that the agency estimates will

11 require 4.5 hours to complete.

12

106. The Regulation also applies a public charge test to an entirely new group of people:

13 nonimmigrant visa holders seeking to extend or change their visas. USCIS must evaluate whether

14 the person has received the designated benefits for more than 12 months in the aggregate within a

15 36-month period since obtaining their status.

16

107. During the notice and comment period, hundreds of thousands of comments were

17 submitted, “the vast majority” opposing the proposed rule, as acknowledged by the agency. 84

18 Fed. Reg. 41304. Commenters explained that the factors were not rationally related to predicting

19 the likelihood of a noncitizen becoming a public charge, were arbitrary and vague, and would

20 cause substantial negative effects.

21

108. For example, commenters criticized the proposed Regulation’s threshold of 15% of

22 the Federal Poverty Guidelines as the value of monetizable benefits a noncitizen could receive

23 over a 12-month period without being a public charge. According to several sets of commenters,

24 the threshold was far too low to show dependency on benefits and did not account for the taxes

25 that immigrants pay and the fact that they pay more into the healthcare system than they take out.

26 Rather than engage with these criticisms, the Regulation instead moved the threshold from 15% to

27 0%, such that receipt of benefits of any value over the applicable time period qualifies a noncitizen

28 as a public charge. See 84 Fed. Reg. 41,357–358.

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1

109. In addition, Defendants failed to adequately respond to comments related to the

2 potential retroactive application of the Regulation. Although Defendants repeatedly assert that the

3 Regulation will have no retroactive effect and implicates no reliance interests, Defendants failed to

4 adequately respond to concerns that the new Form I-944 asks applicants to list all benefits that the

5 applicant ever used and to list the dates of the use of those benefits even if they were used before

6 the effective date of the Regulation. If DHS does not intend to take past use of benefits into

7 account, there is no reason to ask for this information, yet DHS also claims that Form I-944

8 requests information “about all the relevant factors” for the public charge determination.

9 Inadmissibility of Public Charge Grounds, 84 Fed. Reg. at 41,483. Questions on the Form I-944

10 about past use of public benefits, which DHS simultaneously claims are relevant and not relevant

11 to the public charge determination, creates internal inconsistency and ambiguity about the

12 retroactive effect of the Regulation.

13

A. Impact of the New Regulation on Immigrants and Non-White Communities

14

110. Defendants’ Regulation will label as a “public charge” a very large percentage of

15 immigrants, including low-and moderate-income working families. In fiscal year 2017, 83% of all

16 immigrants who received green cards were subject to the public-charge test.1 The remainder were

17 exempt under the statute.

18

111. While only roughly 2–4% of the noncitizen population would have qualified as a

19 public charge under the prior definition, the Regulation will result in the exclusion of vast

20 numbers of individuals who, like millions upon millions of working Americans, will receive one

21 or more of the supplemental benefits listed in the Regulation over the course of a lifetime. Under

22 a similar definition of public charge, which applies to individuals seeking to enter the United

23 States from abroad, exclusions on the basis of public charge increased from 1,076 in 2016 to

24 13,450 in 2018, a 1,250% increase. The increases have disproportionately impacted immigrants

25 from predominantly non-white countries. For instance, denials on public charge grounds of

26

27 1 See Randy Capps, et al., Gauging the Impact of DHS’s Proposed Public –Charge Rule on U.S. Immigration (Nov. 2018), https://www.migrationpolicy.org/research/impact-dhs-public-charge-
28 rule-immigration.

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1 immigrants from Mexico increased from 7 to 5,343 in just a few years. Similarly, the State

2 Department denied 1,254 immigrant visas for Indian nationals in 2018, after denying none at all in

3 2016. And the State Department denied 1,109 immigrant visas to Haitian nationals in 2018, after

4 denying none in 2016. Meanwhile, only three Canadian nationals had immigrant visas denied in

5 2018.2

6

112. In fact, the Regulation’s definition is so expansive that, if applied to U.S. citizens,

7 roughly half of the population would be characterized as “public charges,” simply because they

8 will receive one of the newly listed supplemental benefits at some point in their lifetimes.

9

113. The Regulation will also affect an estimated 2.3 million nonimmigrants with

10 temporary visas, including students and agricultural workers, who attempt to extend their visas or

11 change their non-immigrant status over a five-year period. The Regulation introduces an

12 unprecedented public charge inquiry and potential barrier for these groups. See DHS, RIN: 1615-

13 AA22, Inadmissibility on Public Charge Grounds 28–32 (Aug. 2019).

14

114. The increase in denials for green cards will not be based solely on current or recent

15 benefit use but will also be based on immigration officers’ determinations that individuals are

16 likely to use benefits in the future considering the factors listed in the Regulation’s totality-of-the-

17 circumstances test.

18

115. Overall, the Regulation’s modification of the totality-of-the-circumstances test will

19 disproportionately exclude women, children, and older adults and will serve to facilitate or

20 prolong the separation of immigrant families, striking at the heart of the pro-family immigration

21 policy conceived in 1965. Under the Regulation, many citizens, both U.S. and foreign born, will

22 encounter new barriers to uniting with their families.

23

116. The majority of green card applications, especially in communities of color, are

24 family-based petitions that allow U.S. citizens and LPRs to reunite with their immediate family

25

26

27 2 See Ted Hesson, Visa denials to poor Mexicans skyrocket under Trump’s State Department (Aug. 6, 2019), https://www.politico.com/story/2019/08/06/visa-denials-poor-mexicans-trump-
28 1637094.

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1 members in the United States. The Regulation’s negatively weighted factors disproportionately

2 and detrimentally affect communities of color.

3

117. According to a recent study of recently admitted lawful permanent residents that

4 was submitted in comments, 60% of those from Mexico and Central America had at least two

5 negative factors, compared with only 27% of those from Europe, Canada, and Oceania. Forty-

6 eight percent of recent LPRs from the Caribbean, 41% from Asia, 40% from South America, and

7 34% from Africa had at least two negative factors and thus would be excluded at a

8 disproportionately higher rate than those from Europe, Canada, and Oceania.

9

118. Defendants do not dispute the disparate impact. In fact, acting director of USCIS

10 Kenneth Cuccinelli has tacitly admitted its presence, stating during a press briefing on the

11 Regulation that “if we had been having this conversation 100 years ago, [the Regulation] would

12 have applied more to Italians” than to other groups.3 And a day later in an interview about the

13 Regulation, Mr. Cuccinelli argued that “The New Colossus,” the 136-year-old sonnet inscribed at

14 the base of the Statute of Liberty that welcomes “poor” immigrants, referred to “people coming

15 from Europe.”4

16

B. The Discriminatory Impact is the Intended Purpose of the New Regulation.

17

119. The Trump Administration has made numerous efforts to suppress immigration

18 from non-white countries, including advocating to end family-based immigration. Curtailing

19 immigration by people of color has been a thread uniting each of the Trump Administration’s

20 numerous attempts to change existing immigration law and regulations.

21

120. The Administration has promulgated numerous immigration-related executive

22 actions since January 2017, most either exclusively or disproportionately harming immigrants

23 from non-white-majority nations, including:

24

25

26 3 Chris Rodrigo, White House: New immigration policy meant to promote ‘self-sufficiency and
27 personal responsibility’ (Aug. 12 2019), https://thehill.com/homenews/administration/457093white-house-defends-new-immigration-policy.
28 4 Jacey Fortin, ‘Huddled Masses’ in Statue of Liberty Poem Are European, Trump Official Says (Aug. 14, 2019), https://www.nytimes.com/2019/08/14/us/cuccinelli-statue-liberty-poem.html.

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1

(A) Separating thousands of young children from their parents as a proclaimed

2

deterrent to immigration at the southern border;

3

(B) Refusing refuge to immigrants seeking asylum, and criminally prosecuting

4

asylum seekers for crossing the border between checkpoints;

5

(C) Initially suspending the refugee admission program and then slashing the

6

number of refugees who may be admitted from 110,000 to 30,000 in 2019,

7

and proposing cutting the number to 0 in 2020;

8

(D) Ending the Deferred Action for Childhood Arrivals program;

9

(E) Terminating Temporary Protected Status for nationals of El Salvador,

10

Honduras, Haiti, Nepal, Sudan, and Nicaragua;

11

(F) Winding down Deferred Enforced Departure for Liberian nationals; and

12

(G) Excluding nationals from several majority-Muslim countries.

13

121. These attempted changes have occurred alongside a string of racist statements by

14 the President predating his seeking office and continuing through to the final days before the

15 Regulation’s promulgation, including:

16

(A) Rising to political prominence based upon the racist false claim that

17

President Obama was not born in the United States and/or had allegiance to

18

Kenya;5

19

(B) Running a campaign replete with racist aspersions about people of Mexican

20

descent and of the Muslim faith;6 and

21

(C) Wrongly slurring countries of the African diaspora by declaring while in

22

office that Haitians “all have AIDS”; that once Nigerians had seen the

23

24 5 Alexander Burns, Trump: Obama born in Kenya (May 25, 2012), https://www.politico.com/blogs/burns-haberman/2012/05/trump-obama-born-in-kenya-124569.
25 6 Matt Ford, Trump Attacks a ‘Mexican’ U.S. Federal Judge (May 28, 2016),
26 https://www.theatlantic.com/politics/archive/2016/05/trump-judge-gonzalo-curiel/484790/; Maggie Haberman and Richard Oppel Jr., Donald Trump Criticizes Muslim Family of Slain U.S.
27 Soldier, Drawing Ire (June 30, 2016), https://www.nytimes.com/2016/07/31/us/politics/donaldtrump-khizr-khan-wife-ghazala.html.
28

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1

United States, they would never go “back to their huts;” and that America

2

should not be a haven for “people from shithole countries.”7

3

122. Courts considering challenges to the Administration’s immigration policies have

4 routinely considered the President’s statements as evidence of discriminatory animus toward

5 immigrants of color.8

6

123. More recently, while the Regulation was in final review at the Office of

7 Management and Budget, President Trump made statements linking his view of immigration and

8 racial exclusion.

9

124. Specifically, on July 14, 2019, the President claimed that four women of color

10 serving in the United States Congress “originally came from countries whose governments are a

11

12 7 Michael Shear and Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance
13 Immigration Agenda (Dec. 23, 2017), https://www.nytimes.com/ 2017/12/23/us/politics/trump-immigration.html?smid=tw-
14 share&mtrref=thehill.com&gwh=786472CC33DA9619FF8E4ABABEBAAA04&gwt=pay; https://www.nbcnews.com/politics/white-house/trump-referred-haiti-african-countries-shithole-
15 nations-n836946.

16 8 See, e.g., CASA de Md. v. Trump, 355 F. Supp. 3d 307, 325–26 (D. Md. 2018) (“Defendants do not suggest that President Trump’s alleged statements are not evidence of discriminatory motive
17 on his part, nor could they. One could hardly find more direct evidence of discriminatory intent towards Latino immigrants.”); see also Arab Am. Civil Rights League v. Trump, No. 17-10310,
18 2019 WL 3003455, at *10 (E.D. Mich. July 10, 2019) (denying post-Trump v. Hawaii motion to dismiss challenge to Muslim ban based, in part, on President Trumps anti-Muslim rhetoric) ; Int’l
19 Refugee Assistance Project v. Trump, 373 F. Supp. 3d 650, 678 (D. Md. 2019) (same); NAACP v. DHS, 364 F. Supp. 3d 568, 578 (D. Md. 2019) (denying motion to dismiss Equal Protection
20 Clause challenge to ending Temporary Protected Status (“TPS”) for Haitian nationals); Saget v. Trump, 375 F. Supp. 3d 280, 371–74 (E.D.N.Y. 2019) (same); La Union del Pueblo Entero v.
21 Ross, 353 F. Supp. 3d 381, 295 (D. Md. 2018) (denying motion to dismiss, inter alia, Equal Protection claims regarding immigrants of color in challenge to adding citizenship question to
22 2020 Census); Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1108 (N.D. Cal. 2018), appeal filed, No. 18-16981 (9th Cir. 2018) (granting preliminary injunction in challenge to decision to end TPS for
23 El Salvador, Haiti, Honduras, and Nicaragua); Centro Presente v. DHS, 332 F. Supp. 3d 393, 415 (D. Mass. 2018) (denying motion to dismiss as to Equal Protection claim in challenge to ending
24 TPS for El Salvador, Haiti, and Honduras); State of New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766, 810–11 (S.D.N.Y. 2018) (denying motion to dismiss in challenge to adding Census
25 citizenship question); Regents of the Univ. of Cal. v. DHS, 298 F. Supp. 3d 1304, 1314–15 (N.D. Cal. 2018), aff’d 908 F.3d 476, 519–20 (9th Cir. 2019) (denying motion to dismiss as pertained to
26 Equal Protection challenge to ending Deferred Action for Childhood Arrivals); Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 277 (E.D.N.Y. 2018) (same); Hawaii v. Trump, 241 F. Supp. 3d
27 1119, 1140 (D. Hawaii 2017) (granting temporary restraining order, in part on Equal Protection grounds, for second iteration of travel ban targeting Muslim-majority nations).
28

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1 complete and total catastrophe, the worst, most corrupt and inept anywhere in the world (if they

2 even have a functioning government at all)” and asking “Why don’t they go back and help fix the

3 totally broken and crime infested places from which they came . . . .”

4

125. The President and the White House have been actively involved in pressing for the

5 Regulation. In March 2019 Senior Adviser to the President Stephen Miller told staff that “You

6 ought to be working on this regulation all day every day,” and that “[i]t should be the first thought

7 you have when you wake up. And it should be the last thought you have before you go to bed.

8 And sometimes you shouldn’t go to bed.”9 In mid-2019, President Trump removed the leadership

9 of several immigration-related agencies based, in part, on a desire to speed up the Regulation’s

10 release.

11

126. L. Francis Cissna was directed to step down as director of USCIS, in part because

12 Stephen Miller had been “agitating for Mr. Cissna’s removal for months” due to Mr. Miller’s

13 stance that Mr. Cissna was “moving too slowly in implementing” the Regulation.10 Prior to Mr.

14 Cissna’s removal from office, Mr. Miller told Mr. Cissna in a June 8, 2018 email exchange that

15 “the timing on public charge is unacceptable … I don’t care what you need to do to finish it on

16 time.”11

17

127. After Mr. Cissna resigned at the President’s request effective June 1, 2019,

18 President Trump nominated Kenneth Cuccinelli to be the new Secretary of Homeland Security.

19 Mr. Cuccinelli has a long history of advocating for anti-immigrant policies. While he was a

20 Virginia State Senator, he proposed bills to end birthright citizenship and to allow firing of

21

22

23 9 Eileen Sullivan & Michael D. Shear, Trump Sees an Obstacle to Getting His Way on
24 Immigration: His Own Officials (Apr. 14, 2019), https:// www.nytimes.com/2019/04/14/us/politics/trump-immigration-stephen-miller.html.
25 10 Nick Miroff, et al., Trump to place Ken Cuccinelli at the head of the country’s legal
26 immigration system (May 24, 2019), https://www.washingtonpost.com/immigration/trump-toplace-ken-cuccinelli-at-the-head-of-the-countrys-legal-immigration-system/2019/05/24/143fdec8-
27 7e64-11e9-a5b3-34f3edf1351e_story.html?utm_term=.5ddcfc7451bc.

28 11 Id., https://www.politico.com/f/?id=0000016c-5349-de87-affd-7bc9eff20001.

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1 employees and denying unemployment benefits to anyone speaking a language other than English

2 at work.

3

C. Defendants’ Unlawful Appointment of Acting Head of USCIS

4

128. Under the Federal Vacancies Reform Act (“FVRA”), vacancies in an office

5 requiring Presidential nomination and Senate confirmation can only be filled on an acting basis by

6 certain individuals. Specifically, such a vacancy can be filled by “the first assistant to the office of

7 such officer,” by a person who has already been confirmed by the Senate for a different office, or

8 by a person who, during the year prior to the vacancy, served as an officer or employee in the

9 same agency for at least 90 days. 5 U.S.C. § 3345(a).

10

129. On the date of Mr. Cissna’s resignation, Mr. Cuccinelli did not meet any of these

11 criteria. The position of first assistant was then, and is now, held by Mark Koumans. On or about

12 June 10, 2019, after Mr. Cissna resigned effective June 1, 2019, USCIS created the entirely new

13 office of Principal Deputy Director, vaulting that office above the Deputy Director and

14 purportedly creating a new First Assistant. DHS Acting Secretary McAleenan named Mr.

15 Cuccinelli Principal Deputy Director and Acting Director of USCIS.

16

130. While in the position of Acting Director of USCIS, Mr. Cuccinelli issued the

17 Regulation challenged in this litigation. He described the Regulation as the President “delivering

18 on his promise to the American people.”12

19

D. Additional Harms Resulting from the Regulation

20

131. While the Regulation targets immigrants of color, it will have significantly broader

21 consequences for the country’s public health and the economy as a whole.

22

132. Defendants admit that the proposed Regulation will create the following harms

23 because individuals will be deterred from using important supplemental benefits:

24

25

26

27 12 Ken Cuccinelli (@USCISCuccinelli), Twitter (Jul. 15, 2019, 9:21 AM)
28 https://twitter.com/usciscuccinelli/status/1150802490843176960?lang=en.

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1

(A) Worse health outcomes, including increased prevalence of obesity and

2

malnutrition, especially for pregnant or breastfeeding women, infants, or

3

children, and reduced prescription adherence;

4

(B) Increased use of emergency rooms and emergent care as a method of

5

primary health care due to delayed treatment;

6

(C) Increased prevalence of communicable diseases, including among members

7

of the U.S. citizen population who are not vaccinated;

8

(D) Increases in uncompensated care in which a treatment or service is not paid

9

for by an insurer or patient;

10

(E) Increased rates of poverty and housing instability; and

11

(F) Reduced productivity and educational attainment. Inadmissibility of Public

12

Charge Grounds, 83 Fed. Reg. 51,114, 51,270 (Oct. 10, 2018) (NPRM);

13

Inadmissibility of Public Charge Grounds, 84 Fed. Reg. at 41,364–66

14

(responding to comments regarding detriments of disenrollment by noting,

15

inter alia, “rigorous application of the public charge ground of

16

inadmissibility will inevitably have negative consequences for some

17

individuals.”).

18

133. The proposed Regulation recognized that “reductions in federal and state transfers

19 under federal benefit programs may have downstream and upstream impacts on state and local

20 economies, large and small businesses, and individuals.” Inadmissibility of Public Charge

21 Grounds (NPRM), 83 Fed. Reg. at 51,118. The final Regulation acknowledged that reduced

22 program participation could result in higher poverty levels, reduced access to health care, and an

23 increase in severe and chronic health issues. See generally Inadmissibility of Public Charge

24 Grounds, 84 Fed. Reg. at 41,310–12 (detailing comments on effects of Regulation). In other

25 words, families will increasingly be poorer and less healthy.

26

134. Rather than contest commenters’ assertions, Defendants simply stated that it would

27 be “difficult to predict how this rule will affect aliens subject to the public charge ground of

28 admissibility.” Id., 84 Fed. Reg. at 41,313. DHS did not directly refute the numerous comments

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1 estimating such impacts, did not address the chilling effect which necessarily does not require

2 estimating eligibility numbers, and conceded that it is not sure of the breadth of impact of the

3 Regulation.

4

135. The Regulation will create confusion and fear in immigrant communities and will

5 have a dramatic effect, potentially causing an estimated tens of millions of people to avoid seeking

6 services or to disenroll from core public-health and general-welfare programs. This includes both

7 individuals subject to the public charge inquiry and individuals who are not subject to the

8 Regulation but who will nonetheless be dissuaded from applying for benefits for themselves and

9 their families. These harms defeat Defendants’ stated purpose of the Regulation because they

10 make it harder to achieve self-sufficiency for immigrants and their families, including their U.S.

11 citizen children. As immigration policy experts note, “public assistance can make someone less

12 likely to rely on government in the future” because “temporary use of public benefits can stabilize

13 immigrants and families, putting them on a track to long-term financial stability and health.”13

14 While Defendants assert that altering the longstanding definition of “public charge” will save

15 costs, the long-term effect will be the exact opposite.

16

136. Deterring people from enrolling or remaining in vital programs that support their

17 health, food security, and ability to maintain housing will cause severe harm to the health and

18 welfare of communities across the country.

19

137. Reducing access to preventive care and vital health services will lead to a range of

20 negative health outcomes, including increased costs and rates of preventable disease, late

21 diagnoses, unmanaged chronic conditions, premature births, and early deaths. These effects will

22 reach far beyond the individuals who are subject to public charge determinations and will harm

23 significant numbers of U.S. residents regardless of their national origin or immigration status.

24

25

26

27 13 Matthew La Corte, The New ‘Public Charge’ Rule Will Harm the Rule of Law, Economic Growth, and Public Health (Aug. 28, 2018), https://niskanencenter.org/blog/the-new-public-
28 charge-rule-will-harm-the-rule-of-law-economic-growth-and-public-health/.

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1

138. Deterring families from remaining in affordable housing will increase

2 homelessness and housing instability, leading to negative health outcomes and higher health care

3 costs. Lack of access to affordable housing will also lead to job instability and loss.

4

139. Reduction in use of SNAP benefits will increase food insecurity, which will lead to

5 negative health outcomes and correspondingly higher health-care costs.

6

140. U.S. citizen children living in mixed-status families are at particular risk. Evidence

7 shows that when parents lose access to health coverage, children are more likely to be uninsured.

8 The Regulation, therefore, is likely to increase the rates of uninsured children throughout the

9 country.

10

141. Reducing access to housing benefits will also result in severe and irreparable harm

11 to children, including impairment of cognitive development. SNAP benefits are particularly

12 important to mitigate the effects of poverty on children, and reducing access to these benefits will

13 have a negative impact on school attendance and performance, emotional and physical

14 development, and long-term health and achievement.

15

142. In addition to the direct impact on immigrants, their families, and their

16 communities, the new Regulation will have severely negative impacts on several sectors of the

17 economy.

18

143. For example, SNAP benefits have a high multiplier effect as they circulate through

19 the economy. Every dollar of SNAP translates to $1.79 in local economic activity.

20

144. Businesses that accept SNAP will be disproportionately harmed and may need to

21 close or cut back on carrying healthy, perishable foods that can be purchased with SNAP, which

22 will reduce the healthy food options available in these communities.

23

145. The direct health impacts of the new rule will create additional negative economic

24 consequences because people who are uninsured miss more work, tend to be less productive when

25 they are working, and are more likely to retire at younger ages because of health issues and

26 disability. Among working-age adults, there is a significant correlation between food insecurity

27 and chronic disease, including conditions that can limit an individual’s ability to work.

28

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1

146. Moreover, Medicaid supports hospitals, health centers, and other community

2 providers that are critical sources of care for low-income people and the broader community. By

3 reducing Medicaid enrollment, these providers will lose a primary source of funding, significantly

4 increasing the risk that hospitals and other providers will close or offer fewer services. When

5 health centers and other community providers close or reduce services, individuals have to rely on

6 more costly emergency care to address acute medical conditions.

7

147. The impacts of hospital closures and reductions are far-reaching. They push

8 providers to leave in their wake, and will affect access to care for all residents of their service

9 areas, particularly for rural communities, which generally have difficulty attracting health care

10 providers.

11

148. Hospital closures and cutbacks also harm local economies, as hospitals are major

12 employers and purchasers of goods and services. Moreover, communities without hospitals find it

13 more difficult to attract new industries, companies, and job seekers and thus grow their economies.

14

149. The Regulation will also have destabilizing effects on several other critical sectors

15 of the economy. For example, the public charge rule will disadvantage farmworkers who are

16 either adjusting to lawful permanent residence or who seek to apply for or extend their non-

17 immigrant H-2A visas, as these low-wage workers will find it difficult to satisfy the new public

18 charge test. Farmworker families will disproportionately have a number of factors negatively

19 weighed against them, including their income, lack of credit history and health insurance,

20 household-size, lack of education and skills, and lack of English proficiency.

21

150. The public charge rule will also destabilize the health care workforce—a sector

22 with a sizable immigrant population that relies on access to public programs. For example,

23 approximately 24% of direct care workers—comprising home health aides, personal care aides,

24 and nursing assistants—are foreign-born, and approximately 40% of foreign-born direct care 25 workers receive public benefits.14 The Regulation will force some workers to choose between

26

27 14 Robert Espinoza, Immigrants and the Direct Care Force, Paraprofessional Healthcare Institute

28

at 4–5 (June 2017), https://phinational.org/wpcontent/uploads/2017/06/immigrants_and_the_direct_care_workforce_-_phi_-_june_2017.pdf.

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1 securing benefits and potentially undermining their opportunity to extend or change their

2 nonimmigrant visas or adjust their status. Others who would not be subject to the Regulation will

3 nonetheless refrain from seeking benefits to which they are entitled for fear of potential

4 consequences. If these individuals forgo access to benefits, and in particular health care benefits,

5 they will miss more work days and burden the vulnerable population whom they serve—a

6 population that consists overwhelmingly of older adults and U.S. citizens.

7

151. The administrative and adjudicative burdens imposed by the new Regulation and

8 the accompanying paperwork will cause significant delays in access to immigration benefits and

9 work authorization for all applicants. These delays will prevent affected individuals from being

10 able to support themselves and their families.

11

FIRST CLAIM FOR RELIEF

12

ADMINISTRATIVE PROCEDURE ACT

13 THE CHALLENGED REGULATION IS CONTRARY TO THE STATUTORY SCHEME

14

ESTABLISHED BY CONGRESS

15

5 U.S.C. § 706

16

152. Plaintiffs repeat and incorporate by reference each allegation contained in the

17 preceding paragraphs as if fully set forth herein.

18

153. The Regulation is a final agency action and subject to judicial review.

19

154. The APA prohibits agency action that is “not in accordance with law” or is “in

20 excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”

21

155. The Regulation’s definition of “public charge” is contrary to the plain and well-

22 established meaning of that phrase, and to how it has been interpreted and applied since 1882.

23 With knowledge of those interpretations and applications, Congress has repeatedly declined to

24 change the longstanding definition of “public charge.”

25

156. The new public charge definition is an unreasonable interpretation of and contrary

26 to the meaning of “public charge” in Section 1182. The Regulation uses the public charge ground

27 of inadmissibility to penalize the receipt of or likely use of certain public benefits even though

28 Congress has repeatedly rejected efforts to do precisely that.

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Case 4:19-cv-04980-PJH Document 1 Filed 08/16/19 Page 40 of 45

1

SECOND CLAIM FOR RELIEF

2

ADMINISTRATIVE PROCEDURE ACT

3

THE CHALLENGED REGULATION IS ARBITRARY AND CAPRICIOUS OR

4

OTHERWISE NOT IN ACCORDANCE WITH LAW

5

5 U.S.C. § 706

6

157. Plaintiffs repeat and incorporate by reference each allegation contained in the

7 preceding paragraphs as if fully set forth herein.

8

158. The APA prohibits agency action that is “arbitrary, capricious, an abuse of

9 discretion, or otherwise not in accordance with law.”

10

159. The Regulation is arbitrary and capricious because it departs from decades of prior

11 law and practice without adequate explanation.

12

160. The changes in policy are substantive and highly consequential, and they require a

13 showing that there are good reasons for the new policy, which Defendants have failed to provide.

14

161. Defendants failed to consider all relevant factors and articulate a rational

15 connection between the facts found and the decisions made. In fact, Defendants have offered

16 explanations for their decisions that run counter to the evidence before the agency.

17

162. The Regulation sets forth a number of different factors, some weighted more than

18 others, to determine whether an applicant is likely to become a public charge. These weighted

19 factors are not reasonably related to determining whether an individual is likely to become a

20 public charge. Indeed, even under Defendants’ expanded definition of “public charge,” these

21 various considerations do not predict a likelihood that an individual will receive benefits.

22

163. Defendants failed to consider that the factors are so vague they invite arbitrary or

23 discriminatory enforcement.

24

164. The Agency ignored or failed to adequately consider important aspects of the

25 problem, including evidence that the Regulation would cause harm by penalizing the use of

26 housing, health care, and nutritional assistance benefits.

27

165. The Agency failed to adequately consider the harms caused by the chilling effect of

28 the Regulation.

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Case 4:19-cv-04980-PJH Document 1 Filed 08/16/19 Page 41 of 45

1

166. The Agency failed to adequately consider the racially disparate impact of the

2 policy.

3

167. In addition, although the Regulation provides several purported rationales for the

4 changes it makes to the public charge inquiry, those purported rationales are arbitrary, irrational,

5 not supported by the evidence in the record, and a pretext that conceal the true motivation, which

6 is to dismantle the family-based immigration system and make it more difficult for non-white

7 immigrants to remain in the United States. Even on their own terms, the explanations for the

8 Regulation are arbitrary and capricious.

9

168. Defendants have also failed to adequately address the public comments that were

10 submitted in response to the proposed Regulation.

11

169. USCIS and DHS were improperly influenced in their rulemaking process by the

12 political motivations of individuals within the Trump Administration.

13

170. USCIS issued the Regulation under the signature of and with the approval of Mr.

14 Cuccinelli, who is not lawfully in charge of the promulgating agency. As a result, the Regulation

15 is contrary to law and without observance of procedure required by law under 5 U.S.C. § 706.

16

THIRD CLAIM FOR RELIEF

17

FIFTH AMENDMENT (EQUAL PROTECTION)

18

THE REGULATION DISCRIMINATES AGAINST NON-WHITE IMMIGRANTS

19

171. Plaintiffs repeat and incorporate by reference each allegation contained in the

20 preceding paragraphs as if fully set forth herein.

21

172. The Fifth Amendment contains an implicit guarantee of equal protection that

22 invalidates any official action that reflects a racially discriminatory intent or purpose.

23 Classifications based on race, ethnicity, or national origin are subject to strict scrutiny, and even

24 facially neutral policies and practices will be held unconstitutional when they reflect a pattern

25 unexplainable on grounds other than racial discrimination. Bolling v. Sharpe, 347 U.S. 497, 499

26 (1954); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977).

27

173. Defendants acted with improper discriminatory intent and bias against non-white

28 immigrants in promulgating the Regulation.

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Case 4:19-cv-04980-PJH Document 1 Filed 08/16/19 Page 42 of 45

1

174. Multiple tweets, statements, speeches and other actions by President Trump and his

2 administration demonstrate racial animus toward non-white immigrants that underlie the

3 Regulation.

4

175. The Regulation is unconstitutional because its promulgation was motivated, at least

5 in part, because of, and not merely in spite of, its adverse effects on non-white immigrants. Pers.

6 Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).

7

176. Defendants promulgated the Regulation with full knowledge that it would have a

8 disproportionate impact on non-white immigrants’ ability to obtain green cards and extend non-

9 immigrant visas.

10

177. The history and sequence of events leading up to the promulgation of the

11 Regulation were irregular, indicate a predetermined outcome not based on an objective

12 assessment, and reveal that the Trump Administration’s animus for non-white immigrants drove

13 the decision to adopt the Regulation.

14

178. Plaintiffs will suffer irreparable injury resulting from the implementation of the

15 unconstitutional Regulation.

16

FOURTH CLAIM FOR RELIEF

17

DECLARATORY JUDGMENT ACT

18 THE REGULATION IS INVALID BECAUSE IT WAS ISSUED BY AN UNLAWFULLY

19

APPOINTED AGENCY DIRECTOR

20

179. Plaintiffs will suffer irreparable injury resulting from the implementation of the

21 unconstitutional Regulation.

22

180. Plaintiffs repeat and incorporate by reference each allegation contained in the

23 preceding paragraphs as if fully set forth herein.

24

181. The Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. provides that “in a case of

25 actual controversy within its jurisdiction . . . , any court of the United States, upon the filing of an

26 appropriate pleading, may declare the rights and other legal relations of any interested party

27 seeking such declaration, whether or not such further relief is or could be sought.” Id. § 2201(a).

28 The Court has equitable jurisdiction to enjoin “violations of federal law by federal officials,”

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Case 4:19-cv-04980-PJH Document 1 Filed 08/16/19 Page 43 of 45

1 Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015); Free Enter. Fund v. Pub.

2 Co. Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010) (there is an “implied private right of

3 action directly under the Constitution to challenge governmental action under the Appointments

4 Clause”).

5

182. Defendant Cuccinelli was appointed in violation of the Appointments Clause and

6 the Federal Vacancies Reform Act. Plaintiffs are entitled to a declaration that the Regulation is

7 invalid as signed by Defendant Cuccinelli and that Defendant Cuccinelli’s designation as acting

8 head of USCIS violated the Constitution and federal law.

9

183. The Regulation, which could not have been promulgated without the approval of

10 Cuccinelli as head of the issuing agency, harms Plaintiffs for the reasons stated above.

11

PRAYER FOR RELIEF

12

WHEREFORE, Plaintiffs pray that this Court:

13

1. Declare the Regulation arbitrary, capricious, an abuse of discretion, otherwise not

14 in accordance with law, and without observance of procedure as required by law, in violation of

15 the Administrative Procedure Act and the United States Constitution;

16

2. Declare the Regulation unconstitutional as violating the equal protection guarantee

17 of the Fifth Amendment of the U.S. Constitution;

18

3. Declare that the Regulation has no force or effect under the Federal Vacancies

19 Reform Act.

20

4. Vacate the Regulation;

21

5. Enjoin the Department and all its officers, employees and agents from

22 implementing, applying, or enforcing the Regulation;

23

6. Declare the appointment of Kenneth Cuccinelli as Acting Director of USCIS

24 invalid under the Appointments Clause and the Federal Vacancies Reform Act.

25

7. Award Plaintiffs their costs and reasonable attorney’s fees as appropriate; and

26

8. Grant such further and other relief as this Court deems just and proper.

27

28

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Case 4:19-cv-04980-PJH Document 1 Filed 08/16/19 Page 44 of 45

1 2 Dated: August 16, 2019 By: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
/s/ Nicholas Espíritu NICHOLAS ESPÍRITU (SBN 237665) espiritu@nilc.org LINTON JOAQUIN (SBN 73547) joaquin@nilc.org ALVARO M. HUERTA (SBN 274787) huerta@nilc.org MAYRA B. JOACHIN (SBN 306065) joachin@nilc.org NATIONAL IMMIGRATION LAW CENTER 3450 Wilshire Boulevard, #108-62 Los Angeles, CA 90010 Telephone: (213) 639-3900 Fax: (213) 639-3911
ANTIONETTE DOZIER (SBN: 244437) adozier@wclp.org
ROBERT D. NEWMAN (SBN) 86534) rnewman@wclp.org
DAVID KANE (SBN: 292186) dkane@wclp.org WESTERN CENTER ON LAW & POVERTY 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010 Tel: (213) 487-7211 Fax: (213) 487-0242
MARTHA JANE PERKINS (SBN 104784) perkins@healthlaw.org NATIONAL HEALTH LAW PROGRAM 200 N. Greensboro Street, Ste. D-13 Carrboro, NC 27510 Tel.: (919) 968-6308 Fax: (919) 968-8855
LABONI HOQ (SBN 224140) lhoq@advancingjustice-la.org YANIN SENACHAI (SBN 288336) ysenachai@advancingjustice-la.org MICHELLE (MINJU) CHO (SBN 321939) mcho@advancingjustice-la.org ASIAN AMERICANS ADVANCING JUSTICE – LOS ANGELES 1145 Wilshire Blvd., 2nd Floor Los Angeles, CA 90017 Telephone: (213) 977-7500 Fax: (213) 977-7500
Tanya Broder (SBN 136141) broder@nilc.org NATIONAL IMMIGRATION LAW CENTER

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Case 4:19-cv-04980-PJH Document 1 Filed 08/16/19 Page 45 of 45

1

2030 Addison Street, Suite 420

Berkeley, CA 94704

2

Telephone: (510) 663-8282

3

Fax: (213) 639-3911

4

JOANNA ELISE CUEVAS INGRAM** (SBN 290011)

cuevasingram@nilc.org

5

NATIONAL IMMIGRATION LAW

6

CENTER P.O. Box 170392

7

Brooklyn, NY 11217 Telephone: (213) 377-5258

8

Fax: (213) 377-5258

9

MAX S. WOLSON*

wolson@nilc.org

10

NATIONAL IMMIGRATION LAW

11

CENTER P.O. Box 34573

12

Washington, D.C. 20043

Telephone: (202) 216-0261

13

Fax: (202) 216-0266

14

*Pro hac vice application forthcoming

15

**Admitted to Practice in New York and California

16

Attorneys for Plaintiffs LA CLINICA DE LA RAZA; CALIFORNIA PRIMARY CARE ASSOCIATION;

17

MATERNAL AND CHILD HEALTH ACCESS; FARMWORKER JUSTICE; COUNCIL ON

18

AMERICAN ISLAMIC RELATIONS-CALIFORNIA; AFRICAN COMMUNITIES TOGETHER; LEGAL

19

AID SOCIETY OF SAN MATEO COUNTY; CENTRAL AMERICAN RESOURCE CENTER, and

20

KOREAN RESOURCE CENTER

21

22

23

24

25

26

27

28

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MAYOR AND CITY COUNCIL OF BALTIMORE,
Plaintiff,
v.
DONALD J. TRUMP, et al., Defendants.

Civil Action No. ELH-18-3636

MEMORANDUM OPINION This Memorandum Opinion concerns a challenge to recent amendments to the State Department’s Foreign Affairs Manual (the “FAM” or “Manual”). The amendments pertain to the determination of “public charge” for purposes of an immigrant visa application. Among other things, the FAM sets forth the criteria that consular officers must consider to determine whether a visa applicant is likely to be a “public charge”—a person dependent on the government for subsistence—if admitted to the United States. See ECF 1, ¶ 92. Under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., enacted in 1952, an applicant deemed “likely . . . to become a public charge” is “inadmissible” for entry into the United States. Id. § 1182(a)(4)(A). The Mayor and City Council of Baltimore (the “City”) filed a 70-page lawsuit against Donald J. Trump, in his official capacity as President of the United States; the United States Department of State (“State Department”); and Michael R. Pompeo, in his official capacity as United States Secretary of State, seeking to enjoin defendants from using the revised Manual to process immigrant visas applications. ECF 1 (“Complaint”). Appended to the City’s Complaint is a redlined copy of the FAM. See ECF 1-1.

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The Complaint contains three counts under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”), and one count asserting an equal protection violation under the Due Process Clause of the Fifth Amendment to the United States Constitution. According to the City, the amendments to the FAM’s public charge provisions impose financial costs on the City and disrupt its social services. The City also contends that the amendments harm the health and well-being of Baltimore’s immigrant communities, which include family members who may be citizens. In turn, it asserts that “Baltimore as a whole will suffer.” ECF 1, ¶ 170.
Defendants (sometimes collectively referred to as the “government”) have moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction, and under Fed. R. Civ. P. 12(b)(6), for failure to state a claim. ECF 17. The motion is supported by a memorandum of law (ECF 17-1) (collectively, the “Motion”) and a copy of the Manual. ECF 17-2. According to the government, the claims are not ripe and the City lacks standing to pursue them. Further, defendants maintain that even if the City can overcome these jurisdictional obstacles, the City has failed to plausibly allege that the FAM violates either the APA or the Due Process Clause. The City opposes the Motion. ECF 25. Defendants have replied. ECF 56.
Numerous amici curiae have filed memoranda in support of the City. ECF 49; ECF 51; ECF 53.1
1 The Public Justice Center; Capital Area Immigrant Rights Coalition; CASA of Maryland, Inc.; Catholic Charities of Baltimore’s Immigration Legal Services; and Episcopal Refugee and Immigrant Center Alliance, jointly filed a memorandum in support of plaintiff, docketed at ECF 49.
American Immigration Council; Americans for Immigrant Justice; Asian Americans Advancing Justice Los Angeles; Black Alliance for Just Immigration; LatinoJustice PRLDEF; MacArthur Justice Center; Muslim Advocates; National Immigrant Justice Center; Refugee and Immigrant Center for Education and Legal Services, Inc.; and Southern Poverty Law Center jointly filed a memorandum in support of plaintiff, docketed at ECF 51.
2

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No hearing is necessary to resolve the Motion. Local Rule 105.6. For the reasons that
follow, I shall deny the Motion.
I. Background2
A. The Public Charge Statute
The INA contains ten grounds that render a visa applicant inadmissible. 8 U.S.C.
§ 1182(a). This case concerns one of them: the public charge ground. The statute provides: “Any
alien who, in the opinion of the consular officer at the time of application for a visa, or in the
opinion of the Attorney General at the time of application for admission or adjustment of status, is
likely at any time to become a public charge is inadmissible.” Id. § 1182(a)(4)(A). Thus, under
the statute,3 individuals deemed a public charge are “ineligible to receive visas and ineligible to be
admitted to the United States.” Id. § 1182(a).
And, Alameda County, California; Austin, Texas; Boise, Idaho; Los Angeles, California; Marin County, California; Montgomery County, Maryland; Mountain View, California; Oakland, California; Palm Springs, California; Philadelphia, Pennsylvania; Sacramento, California; Santa Cruz County, California; Seattle, Washington; St. Paul, Minnesota; Stockton, California; Tucson, Arizona; and West Hollywood, California jointly filed a memorandum in support of plaintiff. It is docketed at ECF 53.
2 As discussed, infra, at this juncture the facts alleged in the suit are taken as true. See, e.g., Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013); Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). Further, the Court “may take judicial notice of ‘matters of public record’ and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.’” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015).
3 The term “public charge” has a sordid heritage. See ECF 51 at 2-6 (recounting the history of the public charge rule). It first appeared in 1847, when New York, facing a surge of impoverished Irish immigrants, created a commission to prevent the entrance of “any lunatic, idiot, deaf and dumb, blind or infirm persons, not members of emigrating families, and who . . . are likely to become permanently a public charge,” unless the shipmaster would post a bond for the passenger. Torrie Hester et al., Historians’ Comment: DHS Notice of Proposed Rule “Inadmissibility on Public Charge Grounds” FR 2018-21106, at 2 (Oct. 5, 2018) (citation omitted). Other states took similar action. See HIDETAKE HIROTA, EXPELLING THE POOR: ATLANTIC SEABOARD STATES & THE ORIGINS OF AMERICAN IMMIGRATION POLICY 41-70 (2017).
3

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The INA does not define the term “public charge.” Rather, the INA directs that the
government “shall at a minimum consider the alien’s—(I) age; (II) health; (III) family status; (IV)
assets, resources, and financial status; and (V) education and skills.” Id. § 1182(a)(4)(B)(i). In
making public charge determinations, the government “may also consider any Affidavit of
Support[.]” Id. § 1182(a)(4)(B)(ii).
Visa applicants in the United States are processed by U.S. Citizenship and Immigration
Services (“USCIS”), which is part of the Department of Homeland Security (“DHS”). ECF 1,
¶ 84. Visa applicants abroad are processed by the State Department through consular offices. Id.
¶ 21. Both DHS and the State Department consider whether a visa applicant is likely to become a
“public charge.” Id. ¶ 39.
B. Visa Application Process
The Consular Visa Process is the process by which non-citizens apply for a visa to enter
the United States. Id. ¶ 18. There are two primary types of visas: (1) immigrant visas, for
When the Supreme Court invalidated New York’s law on Commerce Clause grounds in 1875, see Henderson v. Mayor of City of New York, 92 U.S. 259, 274-75 (1875), Congress took up the mantle. HIROTA, EXPELLING THE POOR, supra, at 184-85. In 1882, Congress passed two laws restricting immigration. In May 1882, Congress prohibited the entry of “Chinese laborers.” Chinese Exclusion Act, ch. 126, 22 Stat. 58. (1882). Three months later, it enacted the first general immigration law “with immigrant exclusion and deportation at its core.” HIROTA, EXPELLING THE POOR, supra, at 191. Among other things, the Act prohibited the entry into the United States of “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” An Act to Regulate Immigration, ch. 376, § 2, 22 Stat. 214 (1882). Throughout the early Twentieth Century, the federal government employed the public charge rule to exclude immigrant groups deemed undesirable, such as South Asians, Jews, and Hispanics. See Hester et al., Historians’ Comment, supra, at 3-4; see also ECF 51 at 5.
When Congress enacted the INA in 1952 to modernize the nation’s immigration system, it included the public charge rule as a basis for inadmissibility. See Pub. L. No. 414, ch. 2, § 212(a)(15), 66 Stat. 163, 183 (1952) (codified at 8 U.S.C. § 1182(a)(4)). The public charge provision was last amended in 1996. See Pub. L. 104-208, Div. C, 110 Stat. 3009-674, § 531(a)(4)(B) (1996).
4

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individuals who seek to become permanent residents of the United States; and (2) nonimmigrant visas, for individuals seeking a temporary stay in the United States. Id. ¶ 19; see also 8 U.S.C. §§ 1181(a); 1182(a)(7).
The “vast majority” of foreign nationals must travel to a U.S. consulate to apply for a visa. ECF 1, ¶ 20. “Consular processing” requires the visa applicant to submit various documents, undergo a medical screening, and be interviewed in person by a consular officer. Id. ¶ 21; see also 8 U.S.C. §§ 1202(a), (e); 22 C.F.R. § 42.62. During the interview, the consular officer reviews the applicant’s criminal, financial, and medical records to decide if the applicant is admissible to the United States. ECF 1, ¶ 28.
The applicant bears the burden to demonstrate “to the satisfaction of the consular officer” that he or she is eligible for the type of visa for which the applicant has applied. 8 U.S.C. § 1361. No visa “shall be issued to an alien” if “it appears to the consular officer” from the application papers “that such alien is ineligible to receive a visa” or if “the consular officer knows or has reason to believe” that the alien is ineligible. Id. § 1201(g); see 22 C.F.R. § 40.6 (explaining that the term “‘reason to believe’ . . . shall be considered to require a determination based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa”).4
An individual illegally residing in the United States must satisfy additional requirements to obtain a visa. ECF 1, ¶ 22. Those individuals must leave the country and undergo consular
4 Although a visa normally is necessary for admission, it does not guarantee admission; a visa holder still must be found admissible upon inspection at a port of entry. See 8 U.S.C. §§ 1201(h), 1185(d), 1225(a); see also id. § 1101(a)(4) (specifying that an application for a visa is distinct from an application for admission).
5

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processing abroad in order to obtain a visa. Id. ¶ 29.5 The individual must remain abroad while the consulate processes his or her application. This can take weeks or months or may last indefinitely if the individual’s visa is denied or put into administrative processing. Id.
Individuals may obtain an immigrant visa through three channels. First, a United States employer may file for an employment-based visa for the immigrant. Id. ¶ 23. Second, an individual may submit a diversity visa application to the diversity visa lottery. Id. Third, a lawful permanent resident or United States citizen may file on behalf of a relative for a family-based visa. Id. ¶¶ 23, 25. Where an applicant files for a family-based visa, the family member sponsor must submit an Affidavit of Support (Form I-864) on the applicant’s behalf. Id. ¶ 25. Consular officials use the Affidavit to determine whether a visa applicant will have sufficient financial support should he or she receive a visa. Id. ¶ 26. The Affidavit also serves as a contract between the visa applicant, the sponsor, and the federal government, in which the sponsor pledges to support the applicant if he or she is not self-sufficient.6 Id. According to the City, “an immigrant who can depend on a reliable source of support from a sponsor is dramatically less likely to need any public benefits.” Id.
C. The Foreign Affairs Manual The State Department’s website describes the FAM as “a single, comprehensive, and authoritative source for the Department’s organization structure, policies, and procedures that govern the operation of the State Department, the Foreign Service, and, when applicable, other
5 In contrast, individuals already in the United States on a valid visa who wish to extend their visa, change their visa status, or apply for permanent residency must petition USCIS. See ECF 1, ¶¶ 20 n.12, 84.
6 If a sponsor has a household income of less than 125% of the federal poverty limit, the sponsor must co-sponsor the applicant with another individual such that their joint income exceeds that threshold. ECF 1, ¶ 27. However, the joint sponsor need not be related to the applicant. Id.
6

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federal agencies.” Id. ¶ 42 (quoting Foreign Affairs Manual and Handbook, U.S. Dep’t of State, http://fam.state.gov/). Along with the State Department’s handbooks, the Manual “convey[s] codified information to Department staff and contractors so they can carry out their responsibilities in accordance with statutory, executive, and Department mandates.” Id.; see also Sheikh v. U.S. Dep’t of Homeland Sec., 685 F. Supp. 2d 1076, 1090 (C.D. Cal. 2009) (“FAM contains the functional statements, organizational responsibilities, and authorities of each of the major components of the U.S. Department of State, including Consular Officers.”).
1. The Prior FAM Public Charge Rule Volume Nine of the Manual contains instructions that consular officers are to follow when assessing whether a visa applicant is a public charge. Prior to January 3, 2018, the FAM defined “public charge” as a non-citizen “likely to become primarily dependent on the U.S. Government for subsistence.” ECF 1, ¶ 44; ECF 17-2 (9 FAM § 302.8 (2017)) at 3. This occurred either from “[r]eceipt of public cash assistance for income maintenance” or “[i]nstitutionalization for longterm care at U.S. Government expense.” ECF 1, ¶ 44; ECF 17-2 at 3. “When considering the likelihood of an applicant becoming such a ‘public charge,’ [the consular officer] must take into account, the totality of the alien’s circumstances at the time of visa application.” ECF 17-2 at 3. However, the FAM clarified that the officer “must assess only the ‘totality of the circumstances’ existing at the time of visa application.” Id. at 11. In other words, the officer “may not refuse a visa on the basis of ‘what if’ type considerations.” Id. Notably, the Manual excluded the visa applicant’s past, current, or future receipt of noncash benefits from this holistic review. ECF 1, ¶ 44. It stated, ECF 17-2 at 4 (emphasis added):
There are many forms of U.S. Government assistance that an alien may have accepted in the past, or that you may reasonably believe an alien might receive after admission to the United States, that are of a noncash and/or supplemental nature and would not create an inadmissibility under INA 212(a)(4). Certain programs are
7

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funded with public funds for the general good, such as public education and child vaccination programs, etc., and are not considered to be benefits for the purposes of INA 212(a)(4). Although the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 prohibit aliens from receiving many kinds of public benefits, it specifically exempts from this prohibition several of the public benefits indicated below. Neither the past nor possible future receipt of such non-cash or supplemental assistance may be considered in determining whether an alien is likely to become a public charge.
The FAM provided a non-exhaustive list of non-cash benefits “that are not to be considered
as public cash assistance or income . . . .” Id. The list included:
1. The Food Stamp Program;
2. The Medicaid Program (other than payments under Medicaid for long-term institutional care);
3. The Child Health Insurance Program (CHIP); 4. Emergency medical services; 5. The Women, Infants and Children (WIC) Program; 6. Other nutrition and food assistance programs; 7. Other health and medical benefits; 8. Child-care benefits; 9. Foster care 10. Transportation vouchers; 11. Job training programs; 12. Energy assistance, such as the low-income home energy assistance program
(LIHEAP); 13. Educational assistance, such as Head Start or aid for elementary, secondary, or
higher education; 14. Job training; 15. In-kind emergency community services, such as soup kitchens and crisis
counseling; 16. State and local programs that serve the same purposes as the Federal in-kind
programs listed above; and
8

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17. Any other Federal, State, or local programs in which benefits are paid in-kind, by voucher or by any means other than payment of cash benefits to the eligible person for income maintenance.
ECF 1, ¶ 45; ECF 17-2 at 4-5. Further, the Manual limited the relevance of benefits used by the visa applicant’s family
members. It stated: “Past or current receipt of cash benefits for income maintenance by a family member of the visa applicant may be factored into the applicant’s case only when such benefits also constitute(d) the primary means of subsistence of the applicant.” ECF 1, ¶ 102; ECF 17-2 at 10 (alteration in original). The Manual also provided: “Past or current receipt of other types of benefits, . . . must not be considered.” ECF 1, ¶ 102; ECF 17-2 at 101.
In regard to an Affidavit of Support, the FAM instructed that “[a] properly filed, nonfraudulent Form I-864 should normally be considered sufficient to overcome the INA 212(a)(4) requirements.” ECF 1, ¶ 47; ECF 17-2 at 7. “If the sponsor or any member of his or her household has received public means-tested benefits within the past three years,” the FAM required the consular officer to “review fully the sponsor’s current ability to provide the requisite level of support, taking into consideration the kind of assistance provided and the dates received.” ECF 1, ¶ 48; ECF 17-2 at 11-12. Nonetheless, the Manual stated: “There is no provision in the law to indicate that the receipt of means-tested benefits by the sponsor would, in itself, result in a finding of inadmissibility for the applicant . . . .” ECF 1, ¶ 107; ECF 17-2 at 11.
2. The Amended FAM Public Charge Rule Without prior notice, the State Department issued amendments to Volume Nine of the Manual on January 3, 2018. ECF 1, ¶ 92. The State Department posted a memorandum on its website on January 4, 2018, announcing the changes. Id. ¶ 115. In three significant ways, the revisions alter how consular officers conduct public charge determinations.
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First, the FAM previously prohibited consular officers from considering the applicant’s past or potential future use of non-cash public assistance. ECF 1, ¶ 97. But, the Manual now requires consular officers to consider a visa applicant’s receipt of non-cash benefits as part of the public charge determination. Id. ¶ 96. Specifically, the FAM states: “There are many forms of public assistance that an applicant may have accepted in the past, or that you may reasonably believe, an alien might receive after admission to the United States that are of a non-cash and/or supplementary nature and should not be considered to be benefits when examining the applicant under INA 212(a)(4), and may only be considered as part of the totality of the applicant’s circumstances in determining whether an applicant is likely to become a public charge.” Id. ¶ 98; ECF 1-1 at 5 (emphasis added). Furthermore, the State Department dropped the FAM’s directive that “[n]either the past nor possible future receipt of such non-cash or supplemental assistance may be considered in determining whether an alien is likely to become a public charge.” ECF 1, ¶¶ 99100; ECF 1-1 at 5.
Second, under the earlier version of the FAM, consular officers were not permitted to consider the use of non-cash benefits by the applicant’s family members; the receipt of cash assistance was relevant only if the benefits were the applicant’s primary source of income. ECF 1, ¶ 102. However, the FAM now includes the receipt of non-cash benefits by the visa applicant’s family members as a part of the totality-of-the-circumstances test. Id. ¶ 101. The relevant provision now states: “Past or current receipt of public assistance of any type by the visa applicant or a family member in the visa applicant’s household is relevant to determining whether the applicant is likely to become a public charge in the future[.]” ECF 1, ¶ 103; ECF 1-1 at 9 (emphasis added). Further, the FAM instructs consular officers to treat “[a] dependent family member’s receipt of public benefits” as “a heavily negative factor in the totality of the circumstances unless
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the applicant can demonstrate that his or her prospective income and assets with the income and assets of the others in the family will be sufficient for the family to overcome the poverty income guideline for the family.” ECF 1, ¶ 104; ECF 1-1 at 10 (emphasis added).
Third, whereas the FAM once taught that an Affidavit of Support from the applicant’s sponsor was “normally . . . sufficient” to satisfy the public charge inquiry, the revised Manual diminishes the Affidavit’s weight, instructing that it is merely one factor among many that the consular officer should consider. ECF 1, ¶¶ 105-08. Currently, the consular officer may treat the Affidavit as a “positive” factor, whereas it was previously “sufficient” in most cases. Id. ¶ 105; ECF 1-1 at 7.
According to the City, the State Department “now considers the past or current receipt of non-cash, means-tested benefits by sponsors or their family members to be disqualifying.” ECF 1, ¶ 106. For support, plaintiff notes that the new Manual no longer contains the qualifier that “[t]here is no provision in the law to indicate that the receipt of means-tested benefits by the sponsor would, in itself, result in a finding of inadmissibility . . . .” Id. ¶ 108; ECF 1-1 at 24.
The City contends that the memorandum posted by the State Department on January 4, 2018, concerning the revisions to the FAM, did not mention many of the changes made to the FAM. ECF 1, ¶ 119(a). In particular, it “failed to acknowledge that the changes to the FAM’s public charge provisions amounted to a reversal of the decades-old understanding of the public charge ground of inadmissibility, codified in prior versions of the FAM and by INS in the 1999 NPRM and Field Guidance.” Id. ¶ 119(c). Moreover, it did not “disclose that DHS would be proposing for public comment similar changes to the public charge determination . . . .” Id. ¶ 119(e). And it “failed to provide any explanation as to why the State Department was changing
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its policy and approach to the public charge ground of inadmissibility, nor reasons for the new approach.” Id. ¶119(f) (emphasis in original).
The State Department removed the memorandum from its website several weeks after it was posted. Id. ¶ 116. Since then, the State Department has neither reposted the memorandum nor issued any other public statement about the revisions to the FAM’s public charge provisions. But, the amendments to the FAM remain in effect.
3. The Effect of the FAM’s New Public Charge Rule The City alleges that “the FAM change deters immigrants, their family members, and their sponsors from accepting public benefits—benefits for which they are legally eligible and which are designed to promote public health and economic self-sufficiency.” Id. ¶ 121. It points to media stories detailing a steep drop in the receipt of non-cash benefits by immigrants. Id. ¶ 126; see infra Part III.A(2). And, the City notes that healthcare providers throughout Maryland have observed that immigrants are foregoing health benefits like WIC or Medicare for fear of immigration consequences. Id. ¶ 127. According to the City, the changes to the FAM’s public charge provisions will be felt most acutely by non-white immigrants. Id. ¶ 128. For support, plaintiffs turn to an analysis of DHS’s proposed rule pertaining to the definition of public charge, which found that the rule, if implemented, would “have disproportionate effects based on national origin and ethnicity, blocking 71% of applicants from Mexico and Central America, 69% from Africa, and 52% from Asia—but only 36% from Europe, Canada, and Oceania.” Id. (quoting The Public Charge Rule, Explained, Boundless (Sept. 23, 2018), https://www.boundless.com/ blog/public-charge-ruleexplained). Thus, the City posits that the FAM change will disproportionately affect immigrants from developing countries. Id.
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The City and Amici also note in their briefs that visa denials due to public charge inadmissibility have surged since the State Department issued the amended FAM. See ECF 25 at 19-20; ECF 49 at 5; ECF 53 at 3-4. In 2015, the State Department denied 897 visa applications on public charge grounds. U.S. Dep’t of State, Ann. Rep. Table XX (2015), https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2015AnnualReport/FY15 AnnualReport-TableXX.pdf. There were 3,237 such denials in 2017. U.S. Dep’t of State, Ann. Rep. Table XX (2017), https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/ FY2017AnnualReport/FY17AnnualReport-TableXX.pdf. In contrast, during the 2018 fiscal year, the number of visa applications denied on public charge grounds exceeded 13,000 visa applications. U.S. Dep’t of State, Ann. Rep. Table XX (2018), https://travel.state.gov/content/ dam/visas/Statistics/AnnualReports/FY2018AnnualReport/FY18AnnualReport%20%20%20TableXIX.pdf.
D. Allegations of Defendants’ Animus The City alleges that President Trump and senior Executive Branch officials harbor “animus towards immigrants, particularly those from Latin American, Asian, and African countries, and those who accept public benefits.” ECF 1, ¶ 74. In support of this allegation, plaintiff points to multiple statements by President Trump that allegedly reflect disdain for immigrants from Africa and Latin America. For example, President Trump reportedly told advisors in June 2017 that immigrants from Haiti “all have AIDS” and that Nigerians, once admitted to the United States, would never “go back to their huts.” Id. ¶ 70; see Eugene Scott, Trump’s History of Making Offensive Comments About Nonwhite Immigrants, Wash. Post (Jan. 11, 2018), https://www.washingtonpost.com/news/ the-fix/wp/2018/01/11/trumps-history-of-controversial-remarks-about-nonwhite-immigrants/.
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And, during a cabinet meeting on January 11, 2018, in reference to immigrants from Haiti and Africa, President Trump allegedly remarked, “Why do we want all these people from ‘shithole countries’ coming here?” ECF 1, ¶ 69; see also Scott supra.
Moreover, the Complaint contains four pages of other public statements made by President Trump, complaining that immigrants are a drain on the public fisk. ECF 1, ¶ 71. Those statements include:
1. “According to the National Academy of Sciences, our current immigration system costs America’s taxpayers many billions of dollars a year.” Id. ¶ 71(m).
2. “We also believe that those seeking to immigrate into our country should be able to support themselves financially and should not be able to use welfare for themselves or the household for a period of at least five years.” Id. ¶ 71(n).
3. “Current immigration policy imposes as much as $300 billion annually in net fiscal costs on U.S. taxpayers.” Id. ¶ 71(p).
4. “According to the Center for Immigration Studies, the $18 billion wall will pay for itself by curbing the importation of crime, drugs, and illegal immigrants who tend to go on the federal dole.” Id. ¶ 71(q).
5. “[T]hey’re not sending their finest. We’re sending them the hell back.” Id. ¶ 71(r). 6. “So-called Birthright Citizenship, which costs our Country billions of dollars and
is very unfair to our citizens, will be ended one way or the other.” Id. ¶ 71(t). 7. “We’re the only country in the world where a person comes in and has a baby, and
the baby is essentially a citizen of the United States . . . with all of those benefits.” Id. ¶ 71(u). In support of the City’s claims that the Trump Administration harbors animus towards immigrants, the City also cites to statements made by Stephen Miller, a senior advisor to President Trump on immigration policy, and comments made by former Attorney General Jeff Sessions when he was a U.S. Senator. Id. ¶¶ 72-73. Significantly, the City alleges that the President’s conduct led to the State Department’s decision to amend the FAM’s public charge instructions. Id. ¶ 76. The City asserts that, shortly
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after President Trump’s inauguration in January 2017, the media obtained a draft order titled “Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility.” Id. ¶ 77; see Andrew Bremberg, Memorandum for the President, Subject: Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility (Jan. 23, 2017). According to the City, the draft order directed DHS to “rescind any field guidance” and “propose for notice and comment a rule that provides standards for determining which aliens are inadmissible or deportable on public charge grounds.” ECF 1, ¶ 77. In addition, the City alleges that the draft order instructed the State Department “to amend the Foreign Affairs Manual to ensure that its public-charge provisions are consistent with the goals of this Order.” Id.
Notably, the draft order was never finalized. Id. Nevertheless, plaintiff contends that both the State Department and DHS took measures in accordance with the draft order. On October 10, 2018, DHS published a notice of proposed rulemaking in the Federal Register titled “Inadmissibility on Public Charge Grounds.” Id. ¶ 83; see 83 Fed. Reg. 51, 114 (Oct. 10, 2018) (“DHS Proposed Rule”). The proposed rule purported to expand the definition of public charge to include the receipt of non-cash public benefits. ECF 1, ¶ 86. DHS published a final version of the regulation on August 14, 2019. See Inadmissibility of Public Charge Grounds, 84 Fed. Reg. 41,292, 41,501 (Aug. 14, 2019) (to be codified as 8 C.F.R. § 212.21(a)).7 And, as noted, the State Department amended the FAM’s public charge provisions on January 3, 2018. ECF 1, ¶ 92.
7 There are seven pending lawsuits lodged against DHS’s public charge rule. See CASA de Maryland Inc. v. Trump, PWG-19-02715 (D. Md.); Make the Road N.Y. v. Cuccinelli, No. 1:19cv-07993 (S.D.N.Y.); New York v. U.S. Dep’t of Homeland Sec., No. 1:19-cv-07777 (S.D.N.Y.); California v. U.S. Dep’t of Homeland Sec., No. 3:19-cv-04975 (N.D. Cal. 8/16/19); La Clinica De La Raza v. Trump, No. 3:19-cv-04980 (N.D. Cal.); Washington v. U.S. Dep’t of Homeland Sec., No. 4:19-cv-05210 (E.D. Wash.); City and Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., No. 3:19-cv-4717 (N.D. Cal.).
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This litigation followed. Additional facts are included below, as necessary for the analysis. II. Standard of Review
Defendants have moved to dismiss the City’s Complaint under Rule 12(b)(1) for lack of subject matter jurisdiction, and pursuant to Rule 12(b)(6) for failure to state a claim.
A. Rule 12(b)(1) A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “‘that the jurisdictional allegations of the complaint [are] not true.’” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013). The plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also The Piney Run Preservation Ass’n v. Cty. Comm’rs of Carroll Cty., 523 F.3d 453, 459 (4th Cir. 2008); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d at 192. On the other hand, in a factual challenge, “the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.” Id. In that circumstance, the court “may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009); Evans, 166 F.3d at 647.
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B. Rule 12(b)(6) A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff’d sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). That rule provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions’ . . . .” (citation omitted)); see also Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 849 F.3d 93, 112 (4th Cir. 2019); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). To be sure, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 10, 135 S. Ct. 346, 346 (2014) (per curiam). But, mere “‘naked assertions’ of wrongdoing” are generally insufficient to state a claim
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for relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation omitted). In other words, the rule demands more than bald accusations or mere speculation.
Twombly, 550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. “[A]n unadorned, the-defendant-unlawfully-harmed-me accusation” does not state a plausible claim of relief. Iqbal, 556 U.S. at 678. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).
In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the complaint” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. MTA, 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th Cir. 2010). “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).
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Courts ordinarily do not “‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses’” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243 (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009). Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint,” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies . . . if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint.’” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis added in Goodman).
“Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts are limited to considering the sufficiency of allegations set forth in the complaint and the ‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co., 637 F.3d at 448). Therefore, the court ordinarily “may not consider any documents that are outside of the complaint, or not expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 08 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, Ariz., 576 U.S. ____, 135 S. Ct. 2218 (2015), as recognized in Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015); see Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450 (4th Cir. 2007). However, under limited circumstances, when resolving a Rule 12(b)(6) motion, a court may consider documents beyond the complaint without converting the motion to dismiss to one for summary judgment. Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015).
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In particular, a court may properly consider documents that are “explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits.” Goines, 822 F.3d at 166 (citation omitted); see also Six v. Generations Fed. Credit Union, 891 F.3d 508, 512 (4th Cir. 2018); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014); Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543 U.S. 979 (2004); Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999). But, “before treating the contents of an attached or incorporated document as true, the district court should consider the nature of the document and why the plaintiff attached it.” Goines, 822 F.3d at 167 (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 455 (7th Cir. 1998)).
Of import here, “[w]hen the plaintiff attaches or incorporates a document upon which his claim is based, or when the complaint otherwise shows that the plaintiff has adopted the contents of the document, crediting the document over conflicting allegations in the complaint is proper.” Goines, 822 F.3d at 167. Conversely, “where the plaintiff attaches or incorporates a document for purposes other than the truthfulness of the document, it is inappropriate to treat the contents of that document as true.” Id.
A court may also “consider a document submitted by the movant that [is] not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166 (citations omitted); see also Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 558 (2017); Oberg, 745 F.3d at 136; Kensington Volunteer Fire Dep’t. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). To be “integral,” a document must be one “that by its ‘very existence, and not the mere information it contains, gives rise to the legal rights
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asserted.’” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis in original). See also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”).
In addition, “a court may properly take judicial notice of ‘matters of public record’ and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.’” Goldfarb, 791 F.3d at 508; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011), cert. denied, 565 U.S. 825 (2011); Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). However, under Fed. R. Evid. 201, a court may take judicial notice of adjudicative facts only if they are “not subject to reasonable dispute,” in that they are “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” And, “these facts [must be] construed in the light most favorable” to the nonmovant. Clatterbuck, 708 F.3d at 557.
As noted, the City has attached as an exhibit to its Complaint the redline version of the FAM’s public charge provisions, subsequent to January 3, 2018. ECF 1-1; see ECF 1, ¶ 95. With their Motion, the government submitted a version of the Manual, dated August 4, 2017. ECF 172. As the City’s APA and constitutional claims are predicated on the Manual, it is integral to the Complaint and may be considered. In addition, the government references the Attorney General’s Manual on the APA in its Motion (ECF 17-1 at 42), and plaintiff relies on data concerning visa application denials in its opposition. ECF 25 at 19-20. Because these materials are publicly available, and neither party disputes their authenticity, I may take judicial notice of them.
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Accordingly, I may consider the exhibits and referenced public materials, without converting defendants’ Motion to one for summary judgment.
III. Justiciability The government argues that this Court is without subject matter jurisdiction to consider this case. According to defendants, plaintiff lacks Article III standing to pursue this suit and the case is not ripe. ECF 17-1 at 21-32. Defendants advance several arguments in regard to standing. First, they assert that plaintiff’s harm does not qualify as an injury-in-fact, as “it relies on speculation about what might happen to the City depending on how Baltimore residents react to the guidance.” Id. at 25. Second, they maintain that the City’s alleged harms are not “fairly traceable” to the FAM or redressable by judicial order, because they are caused by the “‘unfettered choices’” of “‘independent actors not before the courts.’” Id. at 26 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1993) (plurality opinion)). In addition, the government contends that the City lacks standing to assert the constitutional rights of its residents. Id. at 29-30. And, defendants argue that even if the City has Article III standing to sue the State Department and Pompeo, the City lacks standing to sue the President, because it does not plausibly allege that its injuries are fairly traceable to him. Id. at 3031. Not surprisingly, the City disagrees. ECF 25 at 22-37. As noted, under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Lujan, 504 U.S. at 561; Demetres, 776 F.3d at, 272; Durden, 736 F.3d at 300. Notably, the analysis of standing will vary with the stage of litigation. Overbey v. Mayor and City Council of Balt., 930 F.3d 215, 227 (4th Cir. 2019). In the context of a facial challenge under Rule 12(b)(1), the question is whether
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plaintiff’s allegations, taken as true, “are enough to give the [plaintiff] constitutional standing.” Id.
When, as here, “‘standing is challenged on the pleadings, [the court will] accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party.’” Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 187 (4th Cir. 2018) (quoting So. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 181-82 (4th Cir. 2013)); see Kerns, 585 F.3d at 192. “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, [because] on a motion to dismiss [the court] presum[es] that general allegations embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561 (citation and quotation marks omitted); accord Hutton v. Nat’l Bd. of Exam’rs in Optometry, Inc., 892 F.3d 613, 620 (4th Cir. 2018); Moore v. Blibaum & Assocs., P.A., 693 F. App’x 205 (4th Cir. 2017); NAACP v. Bureau of the Census, PWG-18-891, 2019 WL 355743, at *17 (D. Md. Jan 19, 2019).
Therefore, in analyzing the standing issue, I shall accept as true the allegations in the Complaint, so long as “there is sufficient ‘factual matter’ to render them ‘plausible on [their] face.’” Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017) (quoting Iqbal, 556 U.S. at 678), cert. denied sub nom. Beck v. Shulkin, __ U.S. __, 137 S. Ct. 2307 (2017); see also Twombly, 550 U.S. at 555-56.
A. Standing 1. Background It is a bedrock principle that Article III of the Federal Constitution confines the federal courts to adjudicating “actual, ongoing cases or controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (citations omitted); see Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408
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(2013). “Indeed, ‘no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’” Dreher v. Experian Info. Solutions, Inc., 856 F.3d 337, 343 (4th Cir. 2017) (quoting Spokeo, Inc. v. Robins, 578 U.S. __, __, 136 S. Ct. 1540, 1547 (2016)).
Therefore, during the pendency of a case, an actual controversy must exist. See Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974); Int’l Bhd. of Teamsters, Local Union No. 639 v. Airgas, Inc., 885 F.3d 230, 234 (4th Cir. 2019); Williams v. Ozmint, 716 F.3d 801, 808 (4th Cir. 2013). Conversely, in the absence of a case or controversy, “the court’s subject matter jurisdiction ceases to exist . . . .” S.C. Coastal Conservation League v. U.S. Army Corps. of Eng’rs, 789 F.3d 475, 482 (4th Cir. 2015); see Gardner v. GMAC, Inc., 796 F.3d 390, 395 (4th Cir. 2015) (same).
“One element of the case-or-controversy requirement” is that a plaintiff must establish standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997); see Spokeo, Inc., 136 S. Ct. at 1547 (“Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy.”); South Carolina v. United States, 912 F.3d 720, 726 (4th Cir. 2019) (“The standing doctrine derives from the Constitution’s limitation on Article III courts’ power to adjudicate ‘cases and controversies.’) (internal quotation marks and citations omitted). The Clapper Court explained, 568 U.S. at 408: “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.”8
8 Under the political question doctrine, which is not asserted here, courts may not “review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). It is a “narrow exception” to judicial review. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012); see Kravitz v. U.S. Dep’t of Commerce, 336 F. Supp. 3d 545, 561 (D. Md. 2018).
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The “constraint of Article III” includes principles of standing as well as ripeness, which “presents a ‘threshold question [] of justiciability.’” Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 269 (4th Cir. 2013) (citation omitted); South Carolina, 912 F.3d at 730. Like standing, ripeness is an issue of subject matter jurisdiction. Sansotta v. Town of Nags Head, 724 F.3d 533, 548 (4th Cir. 2013); see NAACP, WL 355743, at *8 (describing standing and ripeness as “overlapping facets” of subject matter jurisdiction).
The doctrine of standing consists of two distinct “strands”: constitutional standing, pursuant to Article III, and prudential standing. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). As discussed, infra, “the standing inquiry asks whether a plaintiff ha[s] the requisite stake in the outcome of a case . . . .” Deal, 911 F.3d at 187 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)). Under Article III, “a party invoking the jurisdiction of a federal court [must] seek relief for a particularized injury,” which is a requirement that “serves vital interests going to the role of the judiciary in our system of separated powers.” Hollingsworth v. Perry, 570 U.S. 693, 696 (2013).
In addition to satisfying constitutional standing requirements, a plaintiff must also demonstrate that his claims are not barred by prudential limitations on a federal court’s exercise of jurisdiction. United States v. Windsor, 570 U.S. 744, 756-57 (2013); see also, e.g., Elk Grove Unified Sch. Dist., 542 U.S. at 11; Doe v. Sebelius, 676 F. Supp. 2d 423, 428 (D. Md. 2009). Prudential standing “‘embodies judicially self-imposed limits on the exercise of federal jurisdiction.’” Elk Grove Unified Sch. Dist., 542 U.S. at 11 (citation omitted).
One such limitation is that “a plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). This limitation serves to “preclude a court from deciding
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‘questions of broad social import in cases in which no individual rights will be vindicated’” and to ensure that “‘access to the federal courts [is] limited to those litigants best suited to assert the claims.’” Buchanan v. Consolidated Stores Corp., 125 F. Supp. 2d 730, 738 (D. Md. 2001) (quoting Mackey v. Nationwide Ins. Co., 724 F.2d 419, 422 (4th Cir. 1984)).
To establish Article III standing, a plaintiff must satisfy three elements. Lujan, 504 U.S. at 560. They are, id. (internal quotation marks and citations omitted):
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See also Susan B. Anthony List v. Driehaus, 573 U.S. 149, 168 (2014); Clapper, 568 U.S. at 409; Friends of the Earth, Inc., 528 U.S. at 180-81; Overbey, 930 F.3d at 226-27; Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 284 (4th Cir. 2018); Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 207 (4th Cir. 2017); Cahaly v. Larosa, 796 F.3d 399, 406 (4th Cir. 2015); Lane v. Holder, 703 F.3d 668, 671 (4th Cir. 2011); Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011). To meet the injury-in-fact requirement, a plaintiff must allege that it “suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural and hypothetical.’” Spokeo, Inc., 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560); see South Carolina, 912 F.3d at 726. A threatened injury can also satisfy Article III standing, although “not all threatened injuries constitute an injury-in-fact.” Beck, 848 F.3d at 271; South Carolina, 912 F.3d at 726. The Fourth Circuit recently explained in Deal, 911 F.3d at 189, that the two concepts— actual, ongoing injury or imminent injury—are “disjunctive.” An “allegation of future injury may
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suffice if the threatened injury is ‘certainly impending,’ or there is a ‘“substantial risk” that the harm will occur.’” Susan B. Anthony, 573 U.S. at 158 (quoting Clapper, 568 U.S. at 414 n.5); see Lujan, 504 U.S. at 564; South Carolina, 912 F. 3d at 726. In contrast, “‘[a]llegations of possible future injury’ are not sufficient.” Clapper, 568 U.S. at 409 (emphasis in original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). This requirement serves “to ensure that the alleged injury is not too speculative for Article III purposes.” Wikimedia Found., 857 F.3d at 208.
In some cases, it is enough that there is a “substantial risk” of a harm occurring that “prompt[s] plaintiffs to reasonably incur costs to mitigate or avoid that harm.” Clapper, 568 U.S. at 414 n.5. But, in such a case, the plaintiff cannot rely on an “attenuated chain of inferences” nor “on speculation about ‘the unfettered choices made by independent actors not before the court.’” Id. (quoting Lujan, 504 U.S. at 562). Nor can plaintiffs “manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Clapper, 568 U.S. at 416. “If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.” Id.; see, e.g., Wikimedia, 857 F.3d at 216 (“Nor can Plaintiffs establish standing on the ground that . . . surveillance compels them to take burdensome and costly measures.”).
“For an injury to be traceable, ‘there must be a causal connection between the injury and the conduct complained of’ by the plaintiff.” Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 760 (4th Cir. 2018) (quoting Lujan, 504 U.S. at 560). However, “the defendant’s conduct need not be the last link in the causal chain[.]’” Id.; see also Lexmark Int’l, Inc., 572 U.S. at 134 n.6 (“Proximate causation is not a requirement of Article III standing[.]”). “[W]here the plaintiff suffers an injury that is ‘produced by [the] determinative or coercive effect’ of the defendant’s
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conduct ‘upon the action of someone else,’” the traceability requirement is satisfied. Lansdowne
on the Potomac Homeowners Ass’n, Inc. v. OpenBand and Lansdowne, LLC, 713 F.3d 187, 197
(4th Cir. 2013) (quoting Bennett v. Spear, 520 U.S. 154, 169 (1997)).
2. Alleged Harms
The City asserts that it has alleged “quintessential injuries-in-fact.” ECF 25 at 28. In sum,
it asserts that allegations of diversion of its resources, increased financial costs to the City, and
withdrawal of immigrants and their families from City programs, all due to the revised FAM,
“satisfy its pleading burden.[]” Id.
The City alleges that the change to the FAM sows confusion among immigrants and their
families as to the consequences of accepting public benefits from the City and other levels of
government, and chills them from pursuing such benefits. As a result, plaintiff avers that
immigrants are taking advantage of fewer public benefits to avoid adverse effects on immigration
determinations. The City rests this allegation on a mountain of news stories,9 think tank reports,10
9 See, e.g., Helena Bottemiller Evich, Immigrant Families Appear to Be Dropping Out of Food Stamps, Politico (Nov. 14, 2018), https://www.politico.com/story/2018/11/14/immigrantfamilies-dropping-out-food-stamps-966256; Christina Jewett et al., Under a Trump Proposal, Lawful Immigrants Might Shun Medical Care, Nat’l Pub. Radio (May 10, 2018) https://www.npr.org/sections/health-shots/2018/05/10/609758169/under-a-trump-proposallawful-immigrants-might-shun-medical-care; Kathleen Page, Cutting Off Immigrants from Public Benefits Means American Children Will Pay the Price, Baltimore Sun (Sept. 25, 2018), http://www.baltimoresun.com/news/opinion/oped/bs-ed-op-0926-public-charge-20180924story.html.
10 See, e.g., Samantha Artiga et al., Potential Effects of Public Charge Changes on Health Coverage for Citizen Children, Kaiser Family Found. 5 (May 2018), http://files.kff.org/ attachment/Issue-Brief-Potential-Effects-of-Public-Charge-Changes-on-Health-Coverage-forCitizen-Children; Jeanne Batalova et al., Chilling Effects: The Expected Public Charge Rule and Its Impact on Legal Immigrant Families’ Public Benefits Use, Migration Pol’y Inst. 14 (June 2018), https://www.migrationpolicy.org/research/chilling-effects-expected-public-charge-ruleimpact-legal-immigrant-families; Sharon Parrott et al., Trump “Public Charge” Rule Would Prove Particularly Harsh for Pregnant Women and Children, Ctr. on Budget & Pol’y Priorities 2 (May 1, 2018), https://www.cbpp.org/sites/ default/files/atoms/files/5-1-18pov2.pdf.
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and academic articles.11 See ECF 1. In addition, the City describes the recent effects of the policy change on the City’s programs. See, e.g., ECF 1, ¶¶ 143, 144. And, the City alleges that the government has acknowledged that these changes are likely. It avers: “Research shows that when eligibility rules change for public benefits programs there is evidence of a ‘chilling effect’ that discourages immigrants from using public benefits programs for which they are still eligible.” Id. ¶ 122 (quoting Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114, 51,266 (Oct. 10, 2018)); see also ECF 1, ¶ 122 (“There may also be additional reductions in transfer payments from states to individuals who may choose to disenroll from or forego enrollment in a public benefits program.” (quoting 83 Fed. Reg. at 51,268)).
The City claims that by inducing immigrants to use fewer public benefits, the changes to the FAM harm the City in three distinct ways. These contentions are discussed below.
a. Impeding the City’s Delivery of Social Services to Immigrants First, the amendments to the FAM allegedly impede the City’s attempts to provide benefits and social services to immigrants residing in the City. ECF 1, ¶¶ 137-55. Baltimore provides significant health services, operating specialty clinics in two facilities, and funding of a visitingnurse program, as well as programs targeted at asthma, tuberculosis, childhood lead poisoning, and substance abuse. Id. ¶¶ 141-42. The City also provides housing benefits and services through three separate entities. Id. ¶ 144. For example, the Baltimore City Department of Housing and Community Development
11 See, e.g., Mitchell H. Katz & Dave A. Chokshi, The “Public Charge” Proposal and Public Health: Implications for Patients and Clinicians, J. Am. Med. Ass’n Viewpoint 3 (Oct. 1, 2018), https://jamanetwork.com/journals/jama/fullarticle/2705813; Krista M. Perreira et al., A New Threat to Immigrants’ Health – The Public-Charge Rule, 901 New Eng. J. Med. 903, 903 (Sept. 12, 2018).
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operates the Leading Innovation for a Green and Healthy Tomorrow (“LIGHT”) Program, which assesses residents and their homes to determine eligibility for over 200 federal, state, and local programs. According to the City, “LIGHT employees have seen clients come in to start the application process and voice concern over the potential immigration consequences of doing so.” Id. The City also administers and funds housing programs used by immigrants. Id. These programs provide weatherization assistance, energy conservation services, and lead hazard reduction, as well as financial assistance with down payments and closure costs. Id. ¶ 145. Further, the City provides services targeted at the homeless and those at risk for homelessness, including immigrants. Id. ¶ 146. And, the City manages over 9,000 public housing units in fifteen developments and administers rental assistance programs. Id. ¶ 147.
The City also provides low-income assistance programs targeted at poverty reduction. Id. ¶ 148. This includes a Summer Food Service Program, which it makes available to all minors regardless of their immigration status. Id. ¶ 150. The City maintains that many of these services resemble other services that immigrants are avoiding because of the change to the FAM. Id.; see id. ¶¶ 126-27. As a result, the City concludes that immigrants are likely avoiding the City’s programs as well. Id. ¶ 150.
Using federal funds, Baltimore operates Head Start programs. These programs are available to immigrants, but enrollment “has decreased, even sharply decreased among immigrants.” Id. ¶ 151. The Complaint asserts that Baltimore’s African immigrant population has “virtually ceased” enrollment in the months leading up of to the filing of the Complaint in November 2018. Id.
Baltimore also subsidizes a litany of other programs that provide services to immigrants. And, the City’s SAFE Cities Network subsidizes legal assistance for immigrants facing
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deportations. Id. ¶ 152. Although the City presumes that these services are not within the scope of the FAM change, it maintains that some immigrants may fear that using these services could jeopardize their immigration status and therefore decline to use them. Id. ¶ 154.
But, the City asserts that, “‘[e]ven before the publication of th[e] [DHS] rule, there have been reports of immigrants avoiding health care for concern of being considered a public charge.’” ECF 1, ¶ 143 (quoting Katz & Chokshi, supra n.9). Accordingly, plaintiff posits that the change to the FAM has driven some immigrants not to use health clinics and public services. ECF 1, ¶ 143.
b. Forcing the City to Divert Resources The City contends that it must incur significant financial expense to adapt its programs to the policy changes. Id. ¶¶ 156-61. The City alleges that it will need to divert resources to analyze the policy change and its effects on the City’s programs. Id. ¶ 157; see also id. (“Indirect costs . . . include familiarization with the rule for those entities that are not directly regulated but still want to understand the changes in federal and state transfer payments due to this rule familiarization costs, those familiarization costs are a direct cost of the rule.” (quoting 83 Fed. Reg. at 51,260)). It will then devote additional costs training City employees, as well as the City’s contractors and partners. ECF 1, ¶ 158. According to the City, the government has acknowledged these costs. Id. (“[local governments] may need to update and rewrite guidance” and “prepare training materials and retrain staff,” which “will require staff time and have associated costs” (quoting 83 Fed. Reg. at 51,270)). The City will also allocate additional time and resources to encouraging immigrants to accept public benefits that are not within the scope of the FAM change. ECF 1, ¶ 159. And, it will
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spend still more funds advising immigrants about the potential adverse effects of accepting public resources and the uncertainties that remain due to changes to the FAM. Id. ¶ 161.
c. Imposing Financial Costs on the City The amendments to the FAM shift costs from the federal budget to the City’s budget. Id. ¶¶ 162-70. The City alleges that immigrants may believe that local programs are exempt from immigration consequences, driving increased demand to City programs and draining the City’s coffers. Id. ¶ 163. For example, the withdrawal of immigrants from state and federal publicly subsidized health insurance programs, such as Medicaid, could result in a shift to Baltimore’s public clinics for the provision of care to immigrants. Id. ¶¶ 134-35, 164-65. Likewise, an immigrant may refuse to take federal nutrition programs, like the Supplemental Nutrition Assistance Program and the Special Supplemental Nutrition Program for Women, Infants, and Children, instead turning to Baltimore’s Summer Food Service Program or its public schooladministered pantries. Id. ¶ 166. Similarly, an immigrant unwilling to use Section 8 housing vouchers may instead rely on the City’s homeless services programs. Id. Indeed, the City alleges that the government acknowledged the following possible consequences: falling productivity, vaccination rates, and educational achievement, rising poverty, malnutrition, and communicable diseases. ECF 1, ¶ 168 (citing 83 Fed. Reg. at 51,270). Thus, the City asserts that the amendments to FAM will make the City’s immigrants “poorer and less healthy[.]” ECF 1, ¶ 167.
3. Analysis As noted, defendants contend that plaintiff has not suffered an injury-in-fact as a result of the amendments to the FAM. Further, they argue that the City’s alleged injuries are not fairly traceable to the FAM.
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The government places significant weight on the case of Frank Krasner Enterprises, Ltd. v. Montgomery Cty., 401 F.3d 230, 235 (4th Cir. 2005). However, the Frank Krasner Court did not establish that courts could never find standing when the “asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else,” only that doing so will be “‘substantially more difficult.’” Id. at 235 (quoting Lujan, 504 U.S. at 562). (internal citation omitted). The Fourth Circuit explained: “This is so because, ‘[t]he existence of one or more of the essential elements of standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict.’” Frank Krasner Enters., 401 F.3d at 235(emphasis omitted) (quoting Lujan, 504 U.S. at 562).
In the recent case of Department of Commerce v. New York, __ U.S. __, 139 S. Ct. 2551 (2019), the Supreme Court confronted the standing arguments the government raises here. That case involved the Department of Commerce’s plan to ask about citizenship on the 2020 United States Census. Several states, counties, cities, and other entities challenged the change as arbitrary and capricious under the Administrative Procedure Act. Id. at 2564. The respondent challengers maintained that the question would result in residents declining to complete the Census, and that this underreporting would, in turn, lead to a host of injuries, including a loss of federal funds for states with a disproportionate share of noncitizen households. Id. at 2565.
The Department of Commerce contested respondents’ Article III standing on the ground that the alleged harms were not traceable to the Department’s actions but to the independent actions of third parties. Id. at 2565-66. Indeed, the Department contended that the chain of causation was further attenuated by the fact that the intervening, third party-actions were unlawful and driven by “unfounded fears.” Id. The Supreme Court rejected the Department’s argument, concluding that
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respondents “met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential.” Id. at 2566 (emphasis added). As a result, the respondents’ theory of standing “d[id] not rest on mere speculation about the decisions of third parties” but “instead on the predictable effect of Government action on the decisions of third parties.” Id.
The Court’s decision applies here on all fours. The City alleges that immigrants and their families will react in “predictable ways” to the changes in the FAM. They support this allegation with significant evidence that is consistent with the government’s own statements. Furthermore, the causal connection is even tighter here. According to the City, the amendments to FAM were intentionally designed to discourage immigrants from using public benefit programs. This expected behavior is neither speculative nor unlawful. Rather, it is the desired result. The City’s “theory of standing thus does not rest on mere speculation about the decisions of third parties; it relies instead on the predictable effect of Government action on the decisions of third parties.” Dep’t of Commerce, 139 S. Ct. at 2566.
The government’s other challenges to standing are also without merit. It maintains that costs incurred by the City for education and outreach are not a cognizable injury because the harm is “the result of the City’s own decisions[.]” ECF 17-1 at 28. But, the City claims that it is compelled to reallocate its finite resources in response to the FAM for the purpose of combatting the injurious effects that the FAM will have on its residents, and the public programs it administers. ECF 1, ¶¶ 156-59, 161, 165-66. This qualifies as an Article III injury because it “threaten[s] [the City’s] ability to bear the costs of local government and to provide services.” Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 110-11 (1979); see also Air Evac EMS, 910 F.3d 760
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(“‘[F]inancial harm is a classic and paradigmatic form of injury in fact[.]’”) (citation omitted); Texas v. United States, 809 F.3d 134, 150-62 (5th Cir. 2015) (standing to challenge based on cost of issuing driver’s licenses to immigrants made eligible by executive action).
In a footnote, defendants assert that the City lacks standing to assert the constitutional rights of its residents. ECF 17-1 at 29. To be sure, the general prohibition against asserting the rights of another is a prudential limitation on standing. See Warth, 422 U.S. at 498. “To overcome the prudential limitation on third-party standing, a plaintiff must demonstrate: (1) an injury-in-fact; (2) a close relationship between herself and the person whose right she seeks to assert; and (3) a hindrance to the third party's ability to protect his or her own interests.” Freilich v. Upper Chesapeake, Health, Inc., 313 F.3d 205, 215 (4th Cir. 2002) (citing Powers v. Ohio, 499 U.S. 400, 410-11 (1991)); see also Singleton v. Wulff, 428 U.S. 106, 114-15 (1976). Regarding the third prong, the obstacles need not be “insurmountable.” Singleton, 428 U.S. at 117. Rather, it is enough if they engender “some hindrance to the third party’s ability to protect his or her own interests.” Powers, 499 U.S. at 411.
At this juncture, the City alleges sufficient facts to clear this prudential hurdle. See ECF 1, ¶¶195-97. First, as discussed, supra, plaintiff satisfies the injury-in-fact requirement of Article III standing. Second, the City provides a range of social services to immigrants and others residing within the City, from health clinics to housing to supplemental food programs to educational opportunities. The City seeks to assert the constitutional rights of immigrants living within the jurisdiction in order to seek relief from the FAM changes, which it alleges will disrupt the delivery of its services, force it to divert precious resources to understanding and explaining the FAM to its residents, and overwhelm its stop-gap services.
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And, the City’s immigrants face significant obstacles in bringing this suit on their own, as they may hold a credible fear that suing the federal government would torpedo the visa application of a family member whom they are sponsoring or seek to sponsor. See Singleton, 428 U.S. at 117 (holding that physicians have third-party standing to assert the rights of abortion patients because those women “may be chilled from . . . assert[ing] [their rights] by a desire to protect the very privacy of [their] decision from the publicity of a court suit”); Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 732-33 (S.D. Ind. 2016) (finding organization had third-party standing to assert constitutional rights of Syrian refugees due to an understandable desire to “laylow and not draw the attention to themselves that this suit would necessarily bring”), aff’d, 838 F.3d 902 (7th Cir. 2016).
In short, the City satisfies the requirements of Article III standing to challenge the amendments to the FAM.
B. Standing to Sue the President Defendants aver that the City does not have standing to sue President Trump in his official capacity. ECF 17-1 at 30-31. They assert that because the FAM “was issued by and is used by the Department of State, not by the President,” any injury that the City suffers “‘is not fairly traceable’ to the President.” Id. at 31. The City responds that it has standing to sue the President under the Due Process Clause, because the Complaint plausibly alleges that the President’s animus was a motivating factor that led to the amendments to the FAM. ECF 25 at 36-37. . The City must establish Article III standing for each claim against each defendant. See, e.g., Bostic v. Schaefer, 760 F.3d 352, 371 (4th Cir. 2014). As defendants correctly point out (ECF 17-1 at 49), the President is not amenable to suit under the APA as he is not an “agency.” See
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Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992) (plurality opinion). Thus, the inquiry focuses on whether the City has standing to bring its equal protection claim against the President.
The City alleges that the President harbors animus towards immigrants of color. See ECF 1 at 25-31, 72. In this regard, the Complaint alleges that President Trump made repeated statements that, accepted as true, exhibit hostility towards immigrants from Africa, Asia, and Latin America. Those statements include his remark that immigrants from Haiti “all have AIDS”; his suggestion that Nigerian immigrants, if admitted to the United States, would never “go back to their huts”; and his comment that immigrants from Africa and Latin America are “people from shithole countries[.]” Id. ¶¶ 69-70.
In addition, the Complaint plausibly alleges, at least by inference, that President Trump deliberately manipulated the State Department to revise the FAM. According to the Complaint, in the weeks following the President’s inauguration, high-ranking executive branch officials drafted an executive order directing the State Department “to amend the Foreign Affairs Manual to ensure that its public-charge provisions are consistent with the goals of this Order.” Id. ¶ 77 (quoting Andrew Bremberg, Memorandum for the President, Subject: Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility (Jan. 23, 2017)). Although the draft order was never finalized, plaintiff contends that the State Department got the message because, approximately a year after the draft order, it broadened the FAM’s definition of public charge. ECF 1, ¶ 92. Thus, the City has plausibly alleged that President Trump’s racial animus inspired the FAM revision. Consequently, the injuries that the City alleges are fairly traceable to the President.
I am not persuaded by defendants’ argument that plaintiff lacks standing to sue the President because the State Department, not the President, revised the FAM. “Our Constitution
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vests ‘executive Power’ in the President, not in the Secretary of [State], who reports to the President and is removable by him at will.” Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279 (E.D.N.Y. 2018) (quoting U.S. Const., art. II, § 1, cl. 1). In other words, the buck stops with the President. Consequently, if President Trump harbors animus towards immigrants of color, and if he encouraged the State Department to revise the FAM, then the amendments violate equal protection, even if officials within the State Department did not personally harbor racial animus.
Indeed, other courts have found that plaintiffs had plausibly stated an equal protection claim against an executive agency’s immigration action based on the same statements by President Trump that are alleged here. See NAACP v. U.S. Dep’t of Homeland Sec., 364 F. Supp. 3d 568, 578 (D. Md. 2019) (concluding that President Trump’s statements were sufficient to plausibly alleged that DHS’s decision to rescind immigrants’ temporary protected status violated equal protection); Saget v. Trump, 345 F. Supp. 3d 287, 303 (E.D.N.Y. 2018) (same); Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1123-24 (N.D. Cal. 2018) (same); Batalla, 291 F. Supp. 3d at 279 (holding that plaintiff had plausibly alleged that DHS’s decision to rescind the Deferred Action for Childhood Arrivals policy violated equal protection based on the President’s statements).
The issue is presented in the context of a motion to dismiss. The City’s Complaint alleges facts sufficient to nudge from conceivable to plausible the allegation that the President harbors racial animus and that he played a role in the creation of the FAM amendments. I conclude that the City has standing to advance its equal protection claim against the President.
C. Ripeness As with standing, the ripeness doctrine is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction . . . .” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (internal quotation marks omitted);
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see Perry Capital LLC v. Mnuchin, 864 F.3d 591, 632 (D.C. Cir. 2017) (ripeness “has both constitutional and prudential facets”), cert. denied, __, U.S. __, 138 S. Ct. 978 (2018). Whereas standing focuses on who can sue, ripeness “addresses ‘the appropriate timing of judicial intervention.’” Deal, 911 F.3d at 190 (quoting Cooksey v. Futrell, 721 F.3d 226, 240 (4th Cir. 2013)); see NAACP, 2019 WL 355743, at *8 (noting that standing addresses who may sue, and ripeness addresses when a party may sue).
“Like standing, the ripeness doctrine ‘originates in the case or controversy constraint of Article III.’” South Carolina, 912 F.3d at 730 (citation omitted) (cleaned up). And, “[a]s with standing, ripeness is a question of subject matter jurisdiction.” Id.; see San Sotta v. Town of Nags Head, 724 F.3d 533, 548 (4th Cir. 2013). Moreover, the doctrine of ripeness requires presentation of “a controversy in a ‘clean-cut and concrete form.’” Id. (quoting Miller v. Brown, 462 F.3d 312, 318-19 (4th Cir. 2006)). In so doing, the doctrine “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and . . . protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732-33 (1998) (citations omitted).
Ripeness depends on “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808; accord South Carolina, 912 F.3d at 730; Deal, 911 F.3d at 191. “A case is ‘fit for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties.’” Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand and Lansdowne, LLC, 713 F.3d 187, 198 (4th Cir. 2013) (quoting Miller, 462 F.3d at 318-19). “‘The hardship prong is measured by the immediacy of the threat and the burden imposed on the
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plaintiff.’” Id. (brackets omitted) (quoting Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992)); see also Pashby v. Delia, 709 F.3d 307, 317 (4th Cir. 2013); Arch Mineral Corp. v. Babbitt, 104 F.3d 660, 665 (4th Cir. 1997).
Thus, a claim is not ripe for judicial review “‘if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Scoggins, 718 F.3d at 270 (quoting Texas v. United States, 523 U.S. 296, 300 (1998)); see also South Carolina, 912 F.3d at 730 (an action is ripe if “final and not dependent on future uncertainties or intervening agency rulings”) (quoting Franks v. Ross, 313 F.3d 184, 195 (4th Cir. 2002)).
The government contends that the City’s claims are not ripe because the City “has not identified any particular instance in which the guidance has been applied in a way that threatens harm to the City.” ECF 17-1 at 30. Further, they maintain that the City is not harmed by the FAM because it “has never been applied to the City of Baltimore and it will never be—a city is obviously never in the position of applying for a U.S. visa.” Id. In response, the City argues that the bulk of the issues are “purely legal,” and the City is already suffering from the FAM change. ECF 25 at 36. According to the City, it has presented “ample evidence that the application of the FAM change produces a chilling effect that harms the city.” Id.
Defendants’ ripeness argument is without merit. The City’s claims satisfy the fitness criterion. Its APA claims—whether the FAM change is “arbitrary and capricious,” impermissibly retroactive, or procedurally invalid—present purely legal questions. And, postponing review is unnecessary for the City’s equal protection claim to crystallize into a more definite form, given that the City rests its claim primarily on the President’s statements.
As for the hardship prong, delayed review would cause the City significant hardship. The FAM change is “final and not dependent on future uncertainties.” South Carolina, 912 F.3d at
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730; see also infra Part IV.C. And, as discussed, supra, the City has plausibly alleged that it is suffering substantial harm due to the FAM change. See Part III.A(2), supra.
The government’s contention that the City will “never [be] in the position of applying for a U.S. visa” and therefore experiences no hardship is not persuasive. ECF 25 at 35. The primary injury alleged by the City is not that it fears being deemed a public charge. Rather, it is that the City must bear the financial costs of the defendants’ unlawful action. To repeat, the City alleges that the revised Manual frustrates the City’s efforts to provide social services to immigrants; forces the City to divert valuable resources to understanding the changes and conducting education and outreach; and strains the City’s budget by increasing the demand for certain City benefits like emergency health care. See ECF 1 at 53-68. Postponing review will only exacerbate these harms.
Accordingly, I find that the City’s claims are ripe for judicial review. IV. APA Claims
Defendants put forth a smorgasbord of arguments for why the City’s claims are not cognizable under the APA. ECF 17-1 at 32-44. They argue that the City has failed to state a claim under the APA because the FAM change is committed to agency discretion, the City does not fall within the INA’s zone of interests, and the FAM change is not a final agency action. Id. at 33-41. In addition, defendants posit that Count Two should be dismissed, as the Manual’s changes are not retroactive. Id. at 42-44. Defendants also move to dismiss Count Three, asserting that the FAM is not subject to notice and comment. Id. at 41-42.
A. Background The APA provides for judicial review of a final agency action. 5 U.S.C. § 702 (“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.”). See Abbott
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Labs. v. Gardner, 387 U.S. 136, 140-41, (1967) (quoting 5 U.S.C. § 704); see also Ergon-W. Va., Inc. v. EPA, 896 F.3d 600, 609 (4th Cir. 2018); Roland v. U.S. Citizenship & Immigration Servs., 850 F.3d 625, 629 n.3 (4th Cir. 2017); Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 586 (4th Cir. 2012).
“The APA provides that a reviewing court is bound to ‘hold unlawful and set aside agency action’ for certain specified reasons, including whenever the challenged act is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Friends of Back Bay, 681 F.3d at 586-87 (quoting 5 U.S.C. § 706(2)(A)); see United States v. Bean, 537 U.S. 71, 77 (2002). Review under the APA is highly deferential, however, and the agency action enjoys a presumption of validity. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009) (citing Natural Res. Def. Council, Inc. v. EPA, 16 F.3d 1395, 1400 (4th Cir. 1993)).
In assessing an agency decision, “the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). But, the court “is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). And, while the arbitrary and capricious standard “is not meant to reduce judicial review to a rubber-stamp of agency action,” Ohio Valley Entl. Coal., 556 F.3d at 192 (internal quotation marks and citations omitted), so long as the agency “‘provide[s] an explanation of its decision that includes a rational connection between the facts found and the choice made,’ its decision should be sustained.” Perez v. Cissna, 914 F.3d 846, 855 (4th Cir. 2019) (quoting Ohio Valley Envtl. Coal., 556 F.3d at 192); see also Motor Vehicle Mfrs. Ass’n of U.S.,
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463 U.S. at 43, (noting that a court should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned”).
In addition, the APA mandates that, subject to limited exceptions, agencies comply with certain procedures before issuing a rule. 5 U.S.C. § 553; N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 763 (4th Cir. 2012); Chocolate Mfrs. Ass’n v. Block, 755 F.2d 1098, 1103 (4th Cir.1985). Under the APA, a rule is “the whole or party of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy[.]” 5 U.S.C. § 551(4).
Generally stated, the APA’s rulemaking provisions require that the agency publish a notice of proposed rule-making in the Federal Register; permit interested parties the opportunity to comment on the proposed rule; and, after considering the submitted comments, issue a concise general statement of the rule’s purpose along with the final rule. See 5 U.S.C. § 553(b), (c); N.C. Growers’ Ass’n, Inc., 702 F.3d at 763. The notice and comment procedures serve both to “ensure informed agency decisionmaking” and to “encourage public participation in the administrative process.” N.C. Growers’ Ass’n, Inc., 702 F.3d at 763 (internal quotation marks and citations omitted). Although review of an agency’s decision under the arbitrary and capricious standard is deferential, the Fourth Circuit has instructed that courts “‘must be strict in reviewing an agency’s compliance with procedural rules.’” Id. at 764 (quoting Chocolate Mfrs. Ass’n, 755 F.2d at 1103).
B. Reviewability The government maintains that executive immigration policies cannot be challenged under the APA, absent express statutory authorization. ECF 17-1 at 33-34. According to defendants, the City’s APA claims must fail “because the Supreme Court ‘ha[s] long recognized the power . . . to exclude aliens as a fundamental sovereign attribute exercised by the Government’s political
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departments largely immune from judicial control.’” Id. at 33 (quoting Fiallo ex rel. Rodriguez v. Bell, 430 U.S. 787, 792 (1977)).12
“[T]here is a ‘strong presumption’ in favor of judicial review of agency action.” Casa de Maryland v. U.S. Dep’t of Homeland Sec., 924 F.3d 684, 697 (4th Cir. 2019) (quoting Speed Mining, Inc. v. Fed Mine Safety & Health Review Comm’n, 528 F.3d 310, 316 (4th Cir. 2008), petition for cert. filed (U.S. May 24, 2019) (No. 18-1469); see Ergon-W. Virginia, Inc., 896 F.3d at 609; Roland, 850 F.3d at 629 n.3. As the Supreme Court has repeatedly emphasized, the APA “creates a ‘basic presumption of judicial review for one ‘suffering legal wrong because of agency action.’” Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., __ U.S. __, __, 139 S. Ct. 361, 370 (2018) (quoting Abbott Labs., 387 U.S. at 140); see also Mach Mining, LLC v. EEOC, 575 U.S. __, __, 135 S. Ct. 1645, 1651 (2015); Lincoln v. Vigil, 508 U.S. 182, 190 (1993).
However, judicial review is not available “to the extent that . . . statutes preclude judicial review,” 5 U.S.C. § 701(a)(1), or “agency action is committed to agency discretion by law.” Id. § 701(a)(2). The latter exception is read “quite narrowly.” Weyerhaeuser Co., 139 S. Ct. at 370; accord Citizens to Preserve Overton Park, 401 U.S. at 410. This applies “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’” Id. (quoting Lincoln, 508 U.S. at 191); see also Heckler v. Chaney, 470 U.S. 821, 830 (1985) (judicial review is unavailable if the statute provides “no judicially manageable standards . . . for judging how and when an agency should exercise its discretion”); see also Speed Mining, Inc., 528 F.3d at 317. “In determining whether a ‘meaningful standard’ for reviewing agency discretion exists,
12 Defendants do not contend that § 702 precludes judicial review of plaintiff’s constitutional claim. Nor could they, as “it is well settled that even if agency action is committed to its discretion by law, a court may still determine whether the action is constitutional.” Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 347 (4th Cir. 2001).
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courts consider the particular language and overall structure of the statute in question, as well as ‘the nature of the administrative action at issue.’” Speed Mining, Inc., 528 F.3d at 317 (internal citations omitted) (quoting Heckler, 470 U.S. at 830 and Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002)).
Defendants do not specify which provision of § 701 they believe precludes plaintiff’s APA claims. See ECF 17-1 at 33-34. But this is of no moment, because neither applies to this case.
First, the APA specifies procedures that agencies must follow when engaging in “substantive” or “legislative” rulemaking. See 5 U.S.C. §§ 553, 604. Therefore, the Court can review the process by which defendants promulgated the amended Manual in light of the APA’s procedural requirements. See Lincoln, 508 U.S. at 195-98. Second, the INA provides a meaningful standard against which to assess whether the FAM change is arbitrary and capricious. In sum, § 701(a)(1) does not bar the City’s APA claims.
Moreover, defendants have not identified any statutory authority for their argument. See 5 U.S.C. § 701(a)(1). Rather, they seem to argue that the Manual is immune from judicial scrutiny simply because it bears on immigration policy. See ECF 17-1 at 33.
To be sure, significant deference is due to foreign affairs and immigration policy determinations made by the Executive Branch. See, e.g., Trump v. Hawaii, __ U.S. __, __, 138 S. Ct. 2392, 2419 (2018) (“For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’”) (quoting Fiallo v. Bell, 430 U.S. 787 (1977)); Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010); Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). However, “the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over
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immigration . . . .” Washington v. Trump, 847 F.3d 1151, 1162 (9th Cir. 2017), superseded by 858 F.3d 1168 (9th Cir. 2017); see also Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 278 (4th Cir. 2018) (Gregory, C.J., concurring) (“No case from either this Court or the Supreme Court supports [the] sweeping proposition” that courts may not review “statutory challenge[s] to the President’s authority to exclude classes of noncitizens”), vacated on other grounds, __ U.S. __, 138 S. Ct. 2710 (2018); Batalla Vidal v. Duke, 295 F. Supp. 3d 127, 151-52 (E.D.N.Y. 2017) (rejecting government’s contention that § 702(a)(2) barred review of Deferred Action for Childhood Arrivals policy); see also Casa de Maryland, 924 F.3d at 699 (citing cases). Indeed, a brief survey of the Supreme Court’s immigration cases reveals that the Court regularly reaches the merits of a plaintiff’s statutory claims. See, e.g., Hawaii, 138 S. Ct. at 2407 (reviewing plaintiffs’ statutory claims lodged against President Trump’s so-called Travel Ban); Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 170-88 (1993); Fiallo, 430 U.S. at 800.
Defendants lean heavily on Fiallo v. Bell, 430 U.S. 787 (1977), for the proposition that changes to the Manual are unreviewable under the APA due to the Executive’s broad discretion to enforce the immigration laws. ECF 17-1 at 33. But, in my view, Fiallo cuts in favor of the City.
In Fiallo, three sets of fathers and children attacked the constitutionality of an INA provision that extended “special preference” to natural fathers of legitimate U.S. citizen children but not the fathers of “illegitimate” children. Id. at 788-89. After recounting the facts, the Court stated, id. at 792 (internal quotation marks and citations omitted):
At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. This Court has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. Our cases have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.
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This statement is consistent with the longstanding principle that courts may not review individual immigration determinations. See, e.g., Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999) (courts lack jurisdiction to review a consular officer’s decision to grant or deny a visa). However, it does not mean, as defendants would have it, that any agency policy touching immigration escapes judicial review. That much is confirmed by the fact that the Fiallo Court proceeded to resolve the merits of the plaintiff’s claims. See 430 U.S. at 800. Thus, Fiallo reinforces that the federal judiciary retains the authority to review challenges to executive action in the immigration sphere.
Accordingly, § 701(a) does not compel the dismissal of plaintiff’s APA claims. C. Zone of Interests
Defendants argue that the City’s APA claims fail because they fall outside the “zone of interests” protected by the INA. ECF 17-1 at 34-35. According to the government, the City’s interest in this litigation is its “desire to ensure that its residents take advantage of available social services when needed.” Id. at 35. In their view, the INA does not “protect or even consider interests of this type.” Id.
The zone-of-interests test asks “whether the statute grants the plaintiff the cause of action that he asserts.” Bank of Am. Corp., 137 S. Ct. at 1303; see Lexmark Int’l, Inc., 134 S. Ct. at 1387 (“Whether a plaintiff comes within the zone of interests” turns on “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim” (internal quotation marks omitted)). Where the plaintiff asserts a cause of action under the APA, the inquiry focuses on the relevant zone of interest defined by the substantive statute, not the APA. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345-48 (1984); Mendoza v. Perez, 754 F.3d 1002, 1017 (D.C. Cir.
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2014); Am. Inst. of Certified Pub. Accountants v. IRS, 746 F. App’x. 1, 7 (D.C. Cir. 2018) (collecting cases).
The “zone-of-interests limitation” applies to “all statutorily created causes of action.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014); see also Bank of Am. Corp. v. City of Miami, __ U.S. __, __, 137 S. Ct. 1296, 1303 (2017). However, unlike standing and ripeness, the test is not jurisdictional because “‘the absence of a valid . . . cause of action does not implicate . . . the court’s statutory or constitutional power to adjudicate the case.’” Lexmark Int’l, Inc., 527 U.S. at 128 (emphasis in original) (quoting Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 642-43 (2002)).
Moreover, the zone-of-interests test “is not meant to be especially demanding.” Match-EBe-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quoting Clarke v. Sec. Industry Ass’n, 479 U.S. 388, 399 (1987)). This is especially so where the plaintiff files suit under the APA, given “Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable.’” Id. (quoting id.). To that end, the plaintiff need only demonstrate that its interests “arguably” fall within the statute’s purpose, with “the benefit of any doubt go[ing] to the plaintiff.” Id. Further, courts “do not require any indication of congressional purpose to benefit the would-be plaintiff.” Id. Thus, the rule “forecloses suit only 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.’” Id. (quoting Clarke, 479 U.S. at 399).
Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court, __ U.S. __, 136 S. Ct. 2271 (2016) (mem.), is instructive on this point. Texas filed suit against the federal government under the APA to enjoin the implementation of the Deferred Action for Parents
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of Americans and Lawful Permanent Residents program (“DAPA”), an executive action to delay the deportation of immigrants who lacked lawful residency status. Id. at 148. Texas asserted that it satisfied prudential standing to challenge DAPA because, under Texas law, DAPA recipients would be entitled to obtain a state-subsidized driver’s license. Id. at 149-50. The Fifth Circuit agreed. Id. at 163. It observed that the INA “[r]eflect[s] a concern that ‘aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates . . . .’” Id. at 163 (quoting United States v. Alabama, 691 F.3d 1269, 1298 (11th Cir. 2012)).
The Fifth Circuit pointed out that 8 U.S.C. § 1621(a) prohibits unlawfully present immigrants from receiving state or local benefits, including driver’s licenses. Id. Texas’s claim thus fell within the INA’s zone of interest, because it was asserting its right to “participate in notice and comment before the Secretary changes the immigration classification of millions of illegal aliens in a way that forces the state to the Hobson’s choice of spending millions of dollars to subsidize driver’s licenses or changing its statutes.” Id.
Here, the City’s interest in avoiding the costs of the FAM revision falls within the INA’s zone of interest. As the Fifth Circuit observed, the INA expressly regulates the use of public assistance by immigrants. Section 1621 provides that immigrants who lack lawful status are “not eligible for any State or local public benefit.” 8 U.S.C. § 1621(a). And, § 1621(c) clarifies that “State or local public benefit” encompasses “any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.” Id. § 1621(c)(B) (emphasis added). Moreover, the INA’s public charge provision accounts for the impact public charge determinations may have on municipal
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governments. Specifically, § 1183 entitles “the proper law officers” of “any State, territory, district, county, town, or municipality in which [an] alien becomes a public charge” to bring a lawsuit against the individual who sponsored the alien’s visa to enforce the Affidavit of Support. 8 U.S.C. § 1183.
And, like Texas, the City seeks to vindicate its interest in having the opportunity to “participate in notice and comment before [defendants] change[d] the immigration classification of millions of [immigrants] in a way that forces the [City] to the Hobson’s choice of spending millions of dollars . . . or changing its [services].” 809 F.3d at 163. Thus, the City’s claims “are, at the least, ‘arguably within the zone of interests’” protected by the INA. Bank of Am., 137 S. Ct. at 1303 (citation omitted).
D. Finality Defendants maintain that the City has failed to state a claim because the revision to the Manual is not a “final agency action” and “therefore is not reviewable under the APA.” ECF 171 at 36. The APA limits judicial review to “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704; see also City of New York v. U.S. Dep’t of Defense, 913 F.3d 423, 430-31 (4th Cir. 2019); Clear Sky Car Wash LLC v. City of Chesapeake, 743 F.3d 438, 445 (4th Cir. 2014); Golden & Zimmerman LLC v. Domenech, 599 F.3d 426, 432-33 (4th Cir. 2010). Under Bennett v. Spear, 520 U.S. 154 (1997), an agency action is final if it (1) “‘mark[s] the consummation of the agency’s decisionmaking process’” and (2) is an action “‘by which rights or obligations have been determined, or from which legal consequences will flow.’” U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. ___, ___, 136 S. Ct. 1807, 1813 (2016) (quoting Bennett v, 520 U.S. at 177-78).
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“The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Massachusetts v. Franklin, 505 U.S. 788, 797 (1992) (plurality opinion); see Flue-Cured Tobacco Cooperative Stabilization Corp. v. EPA, 313 F.3d 852, 858 (4th Cir. 2002) (“[T]he critical issue is whether the [agency’s action gives rise to legal consequences, rights, or obligations.”). Courts take a “‘pragmatic’ approach . . . to finality.” Hawkes, 136 S. Ct. at 1815 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).
The government does not contest that the revision to FAM satisfies the first Bennett prong, and for good reason. The FAM is not “informal, or only the ruling of a subordinate official, or tentative.” Abbott Labs, 387 U.S. at 151. Rather, it is the State Department’s “authoritative source” on “policies[] and procedures,” including consular processing. Foreign Affairs Manual and Handbook, U.S. Dep’t of State, http://fam.state.gov/. The Manual is the State Department’s last word on the criteria consular officers should consider when making public charge determinations. Accordingly, the FAM “mark[s] the consummation of the [State Department’s] decisionmaking process.” Hawkes, 136 S. Ct. at 1813.
The parties dispute, however, whether the amendments to the FAM have “‘direct and appreciable legal consequences.’” Id. at 1814 (quoting Bennett, 520 U.S. at 178). The government maintains that the change to the Manual “does not have any legal effect of its own” because “it only instructs Department of State personnel on how to apply the governing statute and regulations.” ECF 17-1 at 36. Yet, the government concedes that the “new guidance, compared to the old guidance, could potentially lead to individuals being denied visas on ‘public charge’ grounds more frequently.” Id. at 41. Nevertheless, it contends that this fact alone does not render the revision to the Manual a final agency action. Id.
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The City counters that the amendments to the FAM have legal force because they eliminated a safe harbor for visa applicants and their families by directing consular officers to consider non-cash benefits in making public charge determinations. ECF 25 at 40.
Agency action has legal consequences if it “alters the legal regime[.]” Bennett, 520 U.S. at 178; see also Hawkes, 136 S. Ct. 1814; Nat’l Res. Def. Council v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011). So too does action that grants or withdraws a regulatory “safe harbor.” Hawkes, 136 S. Ct. 1814; Frozen Food Express v. United States, 351 U.S. 40, 44-45 (1956); Scenic Am., Inc. v. Dep’t of Transp., 836 F.3d 42, 56 (D.C. Cir. 2016), cert. denied, __ U.S. __, 138 S. Ct. 2 (2017); Rhea Lana, Inc. v. Dep’t of Labor, 824 F.3d 1023, 1032 (D.C. Cir. 2016); Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., 637 F.3d 259, 266 (4th Cir. 2011); Gen. Elec. Co. v. EPA, 290 F.3d 384, 383 (D.C. Cir. 2002).
The Supreme Court’s analysis in U.S. Army Corps of Engineers v. Hawkes Co., ___ U.S. ___, 136 S. Ct. 1807 (2016), is instructive. There, the Court considered whether “jurisdictional determinations” made by the U.S. Army Corps of Engineers regarding whether a particular tract of land contains “waters of the United States,” and thus subject to the Clean Water Act (“CWA”), were final agency actions. See id. at 1812-13. The Court found that the determinations satisfied the second Bennett prong because legal consequences flow from both negative and affirmative determinations. Id. at 1814. If the Army Corps concludes that a parcel does not contain such waters, that finding creates a “safe harbor,” precluding the Army Corps and EPA from bringing an enforcement action under the CWA against the property owner for five years. Id. Moreover, while a negative determination does not foreclose the possibility of citizen suits under the CWA, the property owner cannot be held liable for past violations. Id. Thus, a negative finding “both narrows the field of potential plaintiffs and limits the potential liability a landowner faces for
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discharging pollutants without a permit. Each of those effects is a ‘legal consequence’ satisfying the second Bennett prong.” Id. (brackets omitted). Affirmative determinations “have legal consequences as well: They represent the denial of the safe harbor that negative [determinations] afford.” Id.
The revisions to the FAM alter the visa application regime by eliminating, in effect, a safe harbor once extended to the receipt of non-cash benefits. Previously, the Manual directed that “[n]either the past nor possible future receipt of such non-cash or supplemental assistance may be considered in determining whether an alien is likely to become a public charge.” ECF 17-2 at 4. And, it barred consular officers from denying a visa application on public charge grounds due to the current or past use of non-cash public assistance by the applicant’s family. Id. at 11. In no uncertain terms, the new version of the Manual reverses this position.
According to the new version of the FAM, consular officers should consider the past and future use of non-cash benefits by the applicant as “part of the totality of the applicant’s circumstances in determining whether an applicant is likely to become a public charge.” ECF 1-1 at 5. Moreover, the FAM now requires consular officers to examine the use of non-cash public benefits by the applicant’s family members and dictates that this is a “heavily negative factor” in the analysis. Id. at 8-9. Thus, it is no longer the case that visa applicants and their families can use non-cash public assistance without the possibility of being deemed a public charge.
The government argues that this safe harbor was illusory. ECF 56 at 20. According to the government, applicants “who accepted noncash public benefits never had any assurances that they would not be denied visas on public-charge grounds.” Id. In their view, because an applicant receiving non-cash public benefits could have been deemed a public charge based on some other consideration, such as health or financial condition, the change is of no legal significance. Id.
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This contention misses the mark. The fact that consular officers can deny visa applications for reasons other than the receipt of non-cash benefits does not rob the FAM change of legal consequences. Rather, as Hawkes demonstrates, agency action has legal consequences even if it only “narrows” the field of regulatory targets or “limits the[ir] potential liability[.]” Hawkes, 136 S. Ct. at 1814; see also Texas v. EEOC, No. 18-10638, slip op. at 12-13 (5th Cir. Aug. 6, 2019) (finding EEOC guidance letter to be final agency action because it creates a safe harbor by detailing how employers can avoid liability).
The amendments to the FAM bear the hallmarks of finality. In particular, they present the “authoritative” position of the State Department on the public charge rule; they alter a legal regime; and they eliminate a safe harbor relied on by visa applicants and their families. It follows that defendants’ Motion, seeking dismissal of the City’s APA claims under § 704, is unavailing on this basis.
Defendants further assert that the FAM is not a “final agency action” because it is an interpretive rule. See ECF 17-1 at 37-41. This argument elides § 704’s finality requirement with § 553’s command that agencies provide notice and comment before promulgating legislative rules.
I discuss interpretive and legislative rules, infra. But, I note here that the D.C. Circuit recently explained: “[A]lthough all legislative rules are final, not all final rules are legislative, and the finality analysis is therefore distinct from the test for whether an agency action is a legislative rule.” Cal. Comtys. Against Toxics v. EPA, 934 F.3d 627, 631 (D.C. Cir. Aug. 20, 2019); see also id. (observing that the Hawkes Court “neither asked whether the action at issue had the force and effect of law nor made a single mention of legislative rules”). The Manual’s legislative character (or lack thereof) is therefore inapposite to the finality inquiry.
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E. Retroactivity The revised FAM directs consular officers to consider an immigrant’s use of non-cash benefits at any time as a factor in visa determinations. This directive is not limited to an immigrant’s current or future use of non-cash public benefits; the officer also must consider the use of non-cash benefits, even if that use occurred before the changes to the FAM were implemented. Defendants have moved (ECF 17-1 at 42-44) to dismiss Count Two of the Complaint, which alleges that the amendments to the FAM have an impermissible retroactive effect, in violation of the APA. ECF 1 at 71. The government argues that the City has not plausibly raised this claim, insisting that the amended FAM does not attach new legal consequences to past events. ECF 17-1 at 42-44. Instead, it allows past events to be considered as a factor in future visa determinations. The City disagrees. It maintains that it sufficiently alleged that the changes to the FAM are impermissibly retroactive. ECF 25 at 49-51. Further, it contends that such a retroactive change must be authorized by statute. Moreover, even if it were authorized, it would be unjustified, according to the City. “Retroactivity is not favored in the law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). The “core principle disfavoring retroactive application of laws” is that “‘settled expectations should not be lightly disrupted[.]’” GTE S., Inc. v. Morrison, 199 F.3d 733, 741 (4th Cir. 1999) (quoting Landgraf, 511 U.S. at 265). The APA provides that a rule must be of “future effect.” 5 U.S.C. § 551(4). Therefore, “a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms.” Bowen, 488 U.S. at 208. This
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prohibition applies to “interpretative rules, no less than legislative rules.” Health Ins. Ass’n of Am., Inc. v. Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994).
A rule is impermissibly retroactive if it “‘alter[s] the past legal consequences of past actions.’” Celtronix Telemetry, Inc. v. FCC, 272 F.3d 585, 588 (D.C. Cir. 2001) (quoting Bowen, 488 U.S. at 219 (Scalia, J., concurring)); see also Landgraf, 511 U.S. at 269-70. Specifically, a rule may not “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280.
If a rule has an “exclusively ‘future effect’” that “affect[s] the desirability of past transactions,” it is considered “secondarily retroactive” and is “invalid only if arbitrary and capricious.” Celtronix Telemetry, 272 F.3d at 589; see Nat’l Petrochemical & Refiners Ass’n v. EPA, 630 F.3d 145, 159 (D.C. Cir. 2010); see also Nat’l Petrochemical & Refiners Ass’n, 630 F.3d at 159 (describing rules that “merely ‘upset[] expectations’” as “secondarily retroactive”). A secondarily retroactive rule is arbitrary and capricious if a court determines that it is not “reasonable both in substance and in being made retroactive.” Celtronix Telemetry, Inc., 272 F.3d at 589.
The government rests its argument primarily on Boniface v. U.S. Dep’t of Homeland Sec., 613 F.3d 282 (D.C. Cir. 2010), and Matherly v. Andrews, 817 F.3d 115 (4th Cir. 2016). In Boniface, the court considered a regulation directing DHS to consider past criminal acts to determine eligibility for a license to transport hazardous materials. A state can grant a “‘license to operate a motor vehicle transporting in commerce hazardous materials’” only if the TSA has determined that the applicant is not a security threat. Id. at 284 (quoting 49 C.F.R. §§ 5103a(a)(1)). The challenged rule provided a list of “disqualifying criminal offense[s].” If an applicant has been
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convicted of a disqualifying offense, then the TSA issues an initial determination that the applicant is a “‘security threat warranting denial’” of his application. However, this initial determination could be rebutted through a waiver process.
After Bonifice was denied a license in 2009 because of a 1975 conviction for a “disqualifying criminal offense,” he challenged the rule. The court found that a “disqualifying criminal offense” creates only a rebuttable presumption that the applicant poses a threat. As a result, it concluded that the regulation did have not an unauthorized retroactive effect under any of the tests set out in Landgraf.
In Matherly, 817 F.3d 115, the Fourth Circuit considered a challenge to a federal statute providing for the civil commitment to the Bureau of Prisons of a “sexually dangerous person.” Matherly challenged the law as impermissibly retroactive because it took effect after he was convicted and in the Bureau’s custody. Id. The Court determined that the statute was not retroactive because “it simply ‘uses’ prior acts ‘solely for evidentiary purposes’ to support a finding” that a person is sexually dangerous. Id. at 120 (quoting United States v. Comstock, 627 F.3d 513, 523 (4th Cir. 2010) (internal citation omitted)).
These cases are distinguishable. In both cases, the contested law or regulation changed the effect of past criminal convictions on future governmental decisions. In essence, the government considered the plaintiffs’ prohibited acts as evidence adverse to the plaintiff in future government decisions. Here, the revised FAM does not pertain to prior unlawful acts, but to “transactions already completed,” i.e., the receipt of non-cash public benefits. Landgraf, 511 U.S. at 280. Before the changes to the Manual, the receipt of these benefits was not only lawful, but also sanctioned by the FAM. After the changes to the Manual, however, benefits received prior to the policy change are considered as a factor (or in some cases a “heavily negative factor”) in visa
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determinations. Based on the allegations, this change represents a “complete[] reversal of the status quo.” See Nat’l Petrochemical & Refiners Ass’n, 630 F.3d at 160 (characterizing Bowen, 488 U.S. 204, as an instance in which an “agency ‘completely reversed the status quo ante’”).
Even if the change does not “alter the past legal consequences of past actions,” the City has adequately alleged that the revised FAM is secondarily retroactive. Celtronix Telemetry, Inc., 272 F.3d at 588. Immigrants (and their families) had “settled expectations” that receipt of noncash benefits would have no effect on visa determinations. See Olatunji v. Ashcroft, 387 F.3d 383, 396 (4th Cir. 2004). Accordingly, plaintiff plausibly alleges that the changes to the FAM are retroactive.13
F. Notice and Comment Count Three of the Complaint asserts that the amended public charge instructions must be set aside as unlawful because the Manual was “amended without notice and comment,” in violation of 5 U.S.C. § 706(2)(D). ECF 1, ¶¶ 186-87. Defendants move to dismiss Count Three for failure to state a claim. ECF 17-1 at 41. As noted, the APA generally requires that before a federal agency adopts a rule it must publish a proposed rule in the Federal Register and provide interested parties with an opportunity to comment. See 5 U.S.C. § § 551(4)-(5), 553(a)-(c). Failure to comply with the APA’s rulemaking process renders the rule invalid. See, e.g., N.C. Grower’s Ass’n., Inc., 702 F.3d at 770 (invalidating regulation that was issued without notice and comment); Mendoza, 654 F.3d at 1025; Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95-96 (D.C. Cir. 2012).
13 Although not essential to my determination, I note that the DHS Proposed Rule expressly declined to apply the rule retroactively. 93 Fed. Reg. at 51,206. (“DHS would not consider public benefits under the proposed 8 C.F.R. § 212.21(b) that were previously excluded under the 1999 Interim Field Guidance if received before effective date of the final rule.”).
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The APA, however, contains several exemptions to these procedural requirements. See 5 U.S.C. §§ 553(a), 553(b)(3). Here, defendants offer two distinct reasons for why the FAM is not subject to the APA’s rulemaking procedures. First, they contend the Manual is exempt from notice and comment as an “interpretive rule” under § 553(d)(2). ECF 17-1 at 36-41. Second, they argue the FAM falls within the sweep of § 553(a)(1), which exempts from notice and comment rules affecting “foreign affairs.” ECF 17-1 at 42.
1. Interpretative and Legislative Rules Under the APA, a “Rule” is a “statement of general or particular applicability and future effect” that is “designed to implement, interpret, or prescribe law or policy or describ[e] the organization, procedure, or practice requirements of an agency[.]” 5 U.S.C. § 551(4). “The APA divides agency action, as relevant here, into three boxes: legislative rules, interpretive rules, and general statements of policy. A lot can turn on which box an agency action falls into.” Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 246 (D.C. Cir. 2014) (Kavanaugh, J.). “The APA generally requires that agencies provide notice of proposals to create, amend, or repeal a rule and an opportunity for interested parties to comment on the proposal.” Casa de Md., 924 F.3d at 701 (citing 5 U.S.C. §§ 551(4)-(5), 553(a)-(c)). Thus, an agency’s failure to comply with notice and comment renders a rule procedurally invalid. See, e.g., Children’s Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615, 620 (4th Cir. 2018) (“CHKD”); N.C. Growers’ Ass’n Inc., 702 F.3d at 771; Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205, 208 (4th Cir. 1989). However, the APA’s rulemaking procedure “does not apply” to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A).
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“Rules issued through the notice-and-comment process are often referred to as ‘legislative rules’ because they have the ‘force and effect of law.’” Perez v. Mortg. Bankers Ass’n, 572 U.S. 92, __, 135 S. Ct. 1199, 1203-04 (2015) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302-303 (1979)). In contrast, “interpretive rules” are those “‘issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.’” Id. (quoting Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995)). Although “the process of issuing interpretive rules [is] comparatively easier for agencies than issuing legislative rules,” they “do not have the force and effect of law and are not accorded that weight in the adjudicatory process.” Id. (citation omitted).
The line between legislative rules and interpretative rules is less than perfectly pellucid. The DC Circuit has, at various times, characterized the doctrine as “tenuous,”14 fuzzy,”15 blurred,”16 “byzantine,”17 “enshrouded in considerable smog,”18 and “quotidian but abstruse.”19 Indeed, even “[t]he Supreme Court recently acknowledged that the ‘precise meaning’ of the term ‘interpretive rule’ in the APA ‘is the source of much scholarly and judicial debate,’ and expressly declined to ‘wade into that debate.’” CKHD, 896 F.3d at 620 (quoting Perez, 135 S. Ct. at 1204).
14 Chisholm v. FCC, 538 F.2d 349, 393 (D.C. Cir. 1976). 15 Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1046 (D.C. Cir. 1987). 16 Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987). 17 Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 246 (D.C. Cir. 2014). 18 Ass’n. of Flight Attendants v. Huerta, 785 F.3d 710, 717 (D.C. Cir. 2015) (quoting Cmty. Nutrition Inst., 818 F.2d at 946). 19 Cal. Comtys. Against Toxics v. EPA, 934 F.3d at 630.
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The Fourth Circuit has instructed that “‘interpretative rules simply state what the administrative agency thinks the statute means, and only remind affected parties of existing duties.’” CHKD, 896 F.3d at 620 (quoting Jerri’s Ceramic Arts, 874 F.2d at 207). “Put differently, ‘[a]n interpretive rule is merely a clarification or explanation of an existing statute or rule.’” Id. (brackets and emphasis in original) (quoting Zhou Chai v. Carroll, 48 F.3d 1331, 1341 (4th Cir. 1995)). As for legislative rules, the Fourth Court has explained:
“By contrast, ‘a substantive or legislative rule, pursuant to properly delegated authority, has the force of law, and creates new law or imposes new rights or duties.’ To that end, ‘[a] rule is legislative if it supplements a statute, adopts a new position inconsistent with existing regulations, or otherwise effects a substantive change in existing law or policy.’ Likewise, a rule is legislative if it ‘expand[s] the footprint of a regulation by imposing new requirements, rather than simply interpreting the legal norms Congress or the agency itself has previously created.’” Id. (first quoting Jerri’s Ceramic Arts, 874 F.2d at 207, then quoting Mendoza, 754 F.3d at 1021, and then quoting Iowa League of Cities v. EPA, 711 F.3d 844, 873 (8th Cir. 2013)). Further, “[w]hen an agency relies on expressly delegated authority to establish policy . . . courts generally treat the agency action as legislative, rather than interpretive, rulemaking.” Id. at 622. Defendants argue that the City has failed to state a claim that the FAM violates the APA’s notice and comment requirements because the FAM is an interpretive rule. In their view, the amendment to the FAM “does not carry legal force” because it merely “clarif[ies] the agency’s interpretation of the applicable statutes and regulations” and serves only to “advis[e]” consular officers. ECF 17-1 at 37. That is, the FAM’s public charge provisions “merely draw on those statutes and regulations and do not establish legal rules in their own right.” Id. at 39. In addition, defendants point out that the Ninth and D.C. circuits have described the FAM as not carrying “force of law,” and they analogize to Fourth Circuit cases in which agency manuals were held to be interpretive rules. Id. at 38-40.
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The government concedes that the revision to FAM “could potentially lead to individuals being denied visas on ‘public charge’ grounds more frequently.” Id. at 41. But, it insists that this “does not mean the guidance should be considered substantive rather than interpretive.” Id.
The City counters that it has plausibly alleged that the FAM is a legislative rule subject to notice and comment. They contend that defendants’ characterization of the FAM as interpretive is belied by the fact that DHS “is simultaneously proceeding through notice-and-comment rulemaking to implement similar changes to public charge for immigrants seeking to adjust status.” ECF 25 at 42 (citing 83 Fed. Reg. 51,114). Further, the City argues that the FAM change is a legislative rule because it “‘change[d] the rules of the game’ by including within public charge a host of programs that had previously been excluded—a quintessentially legislative action.” Id. at 43 (bracket in original) (quoting Sprint Corp. v. FCC, 315 F.3d 369, 374 (D.C. Cir. 2003)).
The focus of this litigation, the FAM’s public charge provisions, contain all the hallmarks of a legislative rule. For starters, it “supplements a statute,” specifically 8 U.S.C. § 1182(a)(4). CKHD, 896 F.3d at 620. In making the public charge determination, the INA provides that consular officers “shall at a minimum consider” the applicant’s “age”; “health”; “family status”; “assets resources, and financial status”; and “education and skills.” 8 U.S.C. § 1182(a)(4)(B). Public assistance—cash or otherwise—is not, therefore, a factor that the statute explicitly requires consular officers to consider. And, to the extent that cash benefits are encompassed within “financial status,” the same cannot necessarily be said for the receipt of non-cash benefits. Similarly, the INA makes no mention of the receipt of public benefits by a visa applicant’s family members, nor does it prescribe the proper weight that should be given to an Affidavit of Support. See id. “Accordingly, [9 FAM] does not derive ‘from an existing [statute or regulation] whose meaning compels or logically justifies the proposition,” thereby weighing in favor of treating the
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[challenged FAM provisions] as a legislative rule.” CKHD, 896 F.3d at 622 (quoting Mendoza, 754 F.3d at 1021).
The FAM changes also “‘expand[] the footprint of a regulation by imposing new requirements, rather than simply interpreting the legal norms Congress or the agency itself has previously created.’” Id. at 620 (brackets omitted). To be sure, the fact that the revision to FAM alters the longstanding concept of the public charge rule does not, alone, transform the FAM into a legislative rule. See Perez, 135 S. Ct. at 1206 (“Because an agency is not required to use noticeand-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule.”). But, the revisions to the FAM did not simply repeal an existing regulation or clarify the INA. Instead, the FAM effects substantive changes to the definition of public charge in the INA as interpreted and applied by the State Department.
In particular, non-cash benefits, which were once excluded from public charge determinations, are now part of the totality-of-the-circumstances analysis. ECF 1, ¶ 97. Likewise, while the FAM previously stated that past or current receipt of cash benefits by the applicant’s family members “must not be considered,” it now provides that the “[p]ast or current receipt of public assistance of any type” by the applicant’s family members “is relevant” to the analysis. ECF 1, ¶ 103 (emphasis added). And, the FAM deemphasized the importance of an Affidavit of Support from “normally . . . sufficient” to only a “positive” factor. ECF 1, ¶ 105. Thus, the FAM revisions impose new requirements on visa applicants and their families with respect to what benefits they can utilize without the risk of being deemed a public charge. See, e.g., Jafarzadeh v. Nielsen, 321 F. Supp. 3d 19, 45-47 (D.D.C. 2018) (denying motion to dismiss plaintiff’s APA claims after finding plaintiff had alleged sufficient facts that USCIS memorandum was a legislative
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rule because it “broadens statutory criteria” for deportability); Mendoza, 754 F.3d at 1022 (DOL guidance letters were legislative rules because the letters “do more than clarify or remind parties of preexisting duties”; “they supplement the statute by imposing specific duties on employers”).
Finally, the State Department “relie[d] on expressly delegated authority to establish [the] policy” embodied in the FAM’s public charge provisions. CHKD, 896 F.3d at 621. Section 1104 of the INA provides that “[t]he Secretary of State shall be charged with the administration and the enforcement of the provisions of this chapter and all other immigration and nationality laws relating to (1) the powers, duties, and functions of diplomatic and consular officers of the United States . . . .” 8 U.S.C. § 1104. Based on this authority, the State Department promulgated Volume Nine to instruct consular officers how to make public charge determinations. The “Introduction to 9 FAM Visa” explains that the Manual is “based on statutes, regulations, Executive Orders, Presidential directives, OMB circulars and other sources.” 9 FAM 101.1-1 (2019).
Specifically, the FAM derives its authority from the INA and 22 C.F.R. §§ 40-42 (2019), which govern the State Department’s visa operations. See 9 FAM 101.1-2. As the Fourth Circuit observed in CKHD, the Secretary’s reliance on his delegated authority to implement the FAM’s public charge provisions militates in favor of finding the provisions legislative, rather than interpretive. See CKHD, 896 F.3d at 623; see also Mendoza, 754 F.3d at 1022 (“Where Congress has specifically declined to create a standard, the Department cannot claim its implementing rule is an interpretation of the statute.”).
The government makes three arguments in support of the contrary contention. First, it points out that the State Department “published the [Manual] in a form that does not carry legal force[.]” ECF 17-1 at 37. The government is correct that the form of the agency action bears on the analysis. See McCarthy, 758 F.3d at 252 (an “agency’s characterization of the guidance” is a
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relevant factor when identifying legislative rules). But, it is not dispositive. See Jerri’s Ceramic Arts, 874 F.2d at 207 (“An agency’s ‘characterization of its statement as an expansion of its policy or interpretation . . . does not preclude our finding that it is something more.’” (citation omitted)); see also Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C.Cir.2000) (finding guidance document was a legislative rule).
Second, the government argues that this Court should follow in the footsteps of the Ninth Circuit and D.C. Circuit, both of which have held that the FAM does not carry the force of law. But, the government misreads both cases.
Scales v. I.N.S., 232 F.3d 1159 (9th Cir. 2000), involved the appeal of an order of removal. Facing deportation, Scales argued that he was a U.S. citizen because his Filipina mother was married to a U.S. service member at the time Scales was born in the Philippines. Id. at 1162. The government responded by citing the FAM, which provided that, “[a]bsent a blood relationship between the child and the parent on whose citizenship the child's own claim is based, U.S. citizenship is not acquired.” Id. at 1165 (quoting 7 FAM § 1131.4–1(a) (ed. 2000)). The government urged the Ninth Circuit to accord Chevron “defer[ence] to the FAM as an agency interpretation” of the INA. Id.
The Ninth Circuit declined to do so. The court observed that “the statement in the FAM is not specifically an interpretation of [the pertinent INA section] and, importantly, it is not an interpretation “arrived at after, for example, a formal adjudication or notice-and-comment rulemaking.” Id. at 1166. For additional support, the court then quoted Christensen v. Harris County, 529 U.S. 576 (2000), a case principally concerned with Chevron and Auer deference, for the proposition that “‘[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the
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force of law—do not warrant Chevron-style deference.’” Id. (quoting Christensen v. Harris Cty., 529 U.S. 576, 587 (2000)).
In Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012), a safety inspector at the U.S. embassy in Paris sued the State Department, alleging that his forced retirement violated the Age Discrimination in Employment Act (“ADEA”). Id. at 1335. In assessing whether the State Department was bound by the ADEA, the court noted in passing: “Whether or not more informal documents like the Department's Foreign Affairs Handbook and Foreign Affairs Manual would qualify for Chevron treatment, there is no mention of mandatory retirement (or an exemption from the ADEA) in the provisions of those documents that the Department cites.” Id. at 1349 (footnote omitted).
Neither Scales nor Miller preclude this Court from concluding that 9 FAM is legislative. Both cases discussed the FAM in passing, and in the context of Chevron deference—a question distinct from whether the FAM is a legislative rule. More important, neither concerned the FAM’s public charge provisions—the focus of this litigation. And, the focus of the inquiry here is on those changes, not the FAM as a whole or Volume Nine. Cf. 5 U.S.C. § 551(4) (defining a “rule” as “the whole or part of an agency statement of general or particular applicability and future effect”).
Third, the government asserts that agency manuals are interpretive rules under Fourth Circuit precedent, arguing that this case is “most similar” to United States v. Ellen, 961 F.2d 462 (4th Cir. 1992). Ellen involved an appeal of a criminal conviction for discharging pollutants in wetland areas, in violation of the Clean Water Act. Id. at 464. The defendant argued that his conviction violated the Due Process and Ex Post Facto Clauses because the court admitted testimony defining “wetlands” according to an inter-agency manual, which was promulgated after
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he was charged. Id. at 465. The Court rejected this contention, stating: “Ellen has presented no reasons why the 1989 Manual is legislative rather than interpretive in nature and we find no indication that promulgation of the 1989 Manual was an exercise of the agencies’ delegated legislative function.” Id. at 466 (emphasis in original).
Ellen is distinguishable. The manual at issue in Ellen “merged” the then-existing policies of four federal agencies into one “technical guidance document” to establish “a uniform national procedure for wetland determinations.” Id. The manual “d[id] not purport to create new law or impose new rights or duties . . . .” Id. The same cannot be said for the FAM’s public charge provisions.
For one thing, while the FAM provides guidance to consular officers, the FAM also affects the legal rights of visa applicants and their families, i.e., what benefits they can utilize without the possibility of being deemed a public charge. Moreover, the FAM revisions are not merely codifying longstanding practices to improve inter-agency coordination; rather, they alter the standards that govern whether a visa applicant is inadmissible as a public charge.
Jerri’s Ceramic Arts, Inc. v. Consumer Product Safety Commission, 874 F.2d 205 (4th Cir. 1989), is instructive. There, the Fourth Circuit determined that a “Statement of Interpretation” issued by the Consumer Product Safety Commission was a legislative rule. See id. at 206. The statement at issue designated the “paper, fabric, yarn, fuzz, elastic, and string” components of toys to be “small parts.” Id. at 207. This reversed the agency’s longstanding policy treating only hard components as “small parts,” and it threatened to result in toys previously exempt from regulation being banned as choking hazards. Id.
Examining “‘the provision’s language, its context, and any available extrinsic evidence’” revealed its legislative character. Id. at 208 (quoting Doe v. Hampton, 556 F.2d 265, 280-81 (D.C.
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Cir. 1977)). The Court reasoned, 874 F.2d at 208: “[T]he language of the statement and related comments establishes that more is involved than mere ‘interpretation,’ because the proposed statement has the clear intent of eliminating a former exemption and of providing the Commission with power to enforce violations of a new rule.” Thus, given the Commission’s authority to impose civil and criminal penalties on noncompliant actors, the Court found “the agency’s argument that “the statement ‘only expects’ and ‘urges’ compliance, and merely provides guidance to the public and its staff” to be “simply incredible.” Id. Further, the Court observed that “[t]he fact that the statement altered a long-standing position cannot readily be discounted,” and here “the statement would, for the first time, have the effect of bringing within the sweep of the regulation entirely new classes of business.” Id.
Here too, at least according to the allegations, the changes to the FAM “alter a longstanding position,” as it “imposes new duties” and has “the effect of bringing within the sweep of the regulation entirely new classes of [benefits].” Id. at 208. And, the FAM is not all bark and no bite—a visa applicant (or family member) who utilizes non-cash benefits faces the prospect of being deemed inadmissible to enter the United States on public charge grounds. Thus, as in Jerri’s Ceramic Arts, the facts surrounding the FAM change, in the light most favorable to the City, “establish that the [State Department] has made a legislative rule and called it an interpretation.” Id.
Therefore, I conclude that the City has adequately pleaded that the FAM is subject to notice and comment under the APA. Accordingly, dismissal is not warranted in regard to the City’s notice-and-comment claim.
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2. Foreign Affairs Exception The government maintains that the changes to the FAM are exempt from notice and comment under the APA’s foreign affairs exception. ECF 17-1 at 41-42. Therefore, it claims that Count Three fails to state a claim. The APA’s foreign affairs exception provides that a rule need not undergo notice and comment “to the extent that there is involved . . . a military or foreign affairs function of the United States[.]” 5 U.S.C. § 553(a)(1). However, to invoke the exception, the government must do more than “merely recite that the Rule ‘implicates’ foreign affairs.” East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 775 (9th Cir. 2018). The government must demonstrate a “need for immediate implementation of the final rule” due to “obvious international consequences.” Id.; see also Zhang v. Slattery, 55 F.3d 732, 744 (2d Cir. 1995) (“For the exception to apply, the public rulemaking provisions should provoke definitely undesirable international consequences.”), superseded on other grounds by statute, 8 U.S.C. § 1101(a)(42); Jean v. Nelson, 711 F.2d 1455, 1477-78 (11th Cir. 1983) (rejecting the foreign affairs exception where government “offered no evidence of undesirable international consequences that would result if rulemaking were employed”), vacated and rev’d on other grounds, 727 F.2d 957 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846 (1985). To my knowledge, the federal appellate courts have recognized the applicability of the APA’s foreign affairs exception on just two occasions: responding to the attacks of September 11, 2001, see Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008), and the Iranian hostage crisis. See Nademi v. INS, 679 F.2d 811, 814 (10th Cir. 1982); Yassini v. Crosland, 618 F.2d 1356, 1360 (9th Cir. 1980) (per curiam); Malek-Marzban v. INS, 653 F.2d 113, 116 (4th Cir. 1981).
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In the immigration context, “the dangers of an expansive reading of the foreign affairs exception . . . are manifest.” City of N.Y. v. Permanent Mission of India to United Nations, 618 F.3d 172, 202 (2d Cir. 2010). Indeed, a capacious interpretation of § 553 (would risk “eliminat[ing] public participation in [an] entire area of administrative law.” Id. (internal quotation marks and citation omitted); see also Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980) (“The foreign affairs exception would become distended if applied to [immigration] actions generally, even though immigration matters typically implicate foreign affairs.”). Consequently, where the government seeks to apply the exception to immigration rules, it must establish that the “ordinary application of the public rulemaking provisions [will] provoke definitely undesirable international consequences.” East Bay Sanctuary Covenant, 932 F.3d at 776 (brackets in original) (quoting Yassini, 618 F.2d at 1360); accord City of New York, 618 F.3d at 202; Zhang, 55 F.3d at 744; Jean, 711 F.2d at 1477-78.
At this stage, I cannot conclude that subjecting the FAM to APA rulemaking would produce “definitely undesirable international consequences.” Nor are there “obvious” exigent circumstances like the September 11 attacks or the Iranian hostage crisis that would explain defendants’ need to suddenly expand the FAM’s definition of public charge.
Indeed, the government relies almost exclusively on the Attorney General’s Manual on the APA to support its contention that the foreign affairs exception applies here. ECF 17-1 at 42. Such reliance is misplaced.
The Attorney General’s Manual states that the foreign affairs exception is “broad” and “applicable to most functions of the State Department.” U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 26-27 (1947). According to defendants, the Manual is “entitled to deference” because the Department of Justice was “heavily involved in the
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legislative process that resulted in the Act’s enactment in 1946.” Id. at 42 (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979), and citing Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 546 (1978)).
The government overstates the import of the Attorney General’s Manuel. In Chrysler Corp., 441 U.S. at 302 n.31, the Court only considered the Attorney General’s Manual after noting that the House and Senate Reports did not address the issue under consideration. Likewise, in Vermont Yankee, 435 U.S. at 546, the Court analyzed the House and Senate Reports before citing the Attorney General Manual as further confirmation of the legislative history. Thus, while relevant, the Court need not blindly adhere to the Attorney General Manual’s views on the foreign affairs exception.
And, in any event, the Attorney General Manual does not mandate the application of the foreign affairs exception to this case. Tellingly, the government omits the quote of a House and Senate Report, contained in the Attorney General’s Manual, id. at 26:
As to the meaning of “foreign affairs function”, both the Senate and House reports state: “The phrase ‘foreign affairs functions,’ used here and in some other provisions of the bill, is not to be loosely interpreted to mean any function extending beyond the borders of the United States but only those ‘affairs’ which so affect relations with other governments that, for example, public rule making provisions would clearly provoke definitely undesirable international consequences." (quoting H. Rep. No. 79-1980 at 257 S. Rep. No. 79-572 at 199 (1946)) (emphasis added). In sum, defendants’ effort to invoke § 553(a)(1) is doomed by their failure to explain how subjecting the FAM to APA rulemaking would harm foreign policy interests. At this stage, I agree with plaintiff that the foreign affairs exception does not require dismissal of the suit.
V. Equal Protection The City contends that the amendments to the FAM violate the equal protection component of the Due Process Clause because they discriminate based on “race, national origin, nationality,
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income, or receipt of public benefits.” ECF 1, ¶ 189. The government moves to dismiss the City’s equal protection claim, asserting that “the City has not alleged facts that could establish that the challenged FAM guidance was motivated by racial animus on the part of the Department of State or the President.” ECF 17-1 at 44. And, the government points out that federal actions which discriminate on the basis of income and national origin are subject only to rational basis review. Id. at 45-46.20
The Equal Protection Clause of the Fourteenth Amendment “commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). Equal Protection principles apply to the federal government through the Due Process Clause of the Fifth Amendment to the Constitution. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
“To state a race-based claim under the Equal Protection Clause, a plaintiff must allege that a government actor intentionally discriminated against him on the basis of his race.” Williams v. Hansen, 326 F.3d 569, 583 (4th Cir. 2003); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.252, 265 (1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”). Discriminatory intent “implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Pers. Adm’r of Mass. v.
20 The government does not explain why the City has failed to state a claim even if the FAM discriminated on the basis of income or national origin, as opposed to race. See ECF 17-1 at 44-46. Regardless, as discussed, infra, Trump v. Hawaii, __ U.S. __, __, 138 S. Ct. 2392 (2018), may compel the application of rational basis review to the City’s equal protection claim, regardless of whether the alleged classification is income, national origin, or race.
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Feeney, 442 U.S. 256, 279 (1979). That said, “the Equal Protection Clause ‘does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes.’” Williams, 326 F.3d at 584 (emphasis in original) (quoting Arlington Heights, 429 U.S. at 265). It is enough to show “that racial animus was one of several factors that, taken together, moved the decision-maker to act as he did.” Id.
“There are several ways for a plaintiff to make out a valid claim of unconstitutional discrimination[:]” The plaintiff can (1) “point to a law or policy that expressly classifies persons on the basis of race,” (2) “identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner,” or (3) “allege that a facially neutral statute or policy that is neutrally applied nonetheless has an adverse effect on a protected group, and that the adoption of the statute or policy was motivated by discriminatory animus.” Williams, 326 F.3d at 584 (internal citations omitted).
In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), the Supreme Court set forth a non-exhaustive list of factors for courts to consider in performing the “sensitive inquiry” into discriminatory intent. These include: (1) “The historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes”; (2) “The specific sequence of events leading up the challenged decision”; (3) “Departures from the normal procedural sequence”; (4) “Substantive departures . . ., particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and (5) “The legislative or administrative history . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. at 267-68 (internal citations and references omitted).
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When undertaking this analysis, courts must be cautious not to “miss[] the forest in carefully surveying the many trees.” N.C. State Conference of NAACP v. McCrory, 831 F.3d, 204, 214 (4th Cir. 2016). “Any individual piece of evidence can seem innocuous when viewed alone, but gains an entirely different meaning when considered in context.” Id. at 233.
Applying the Arlington Heights factors, the City’s allegations are sufficient to survive defendants’ Motion. First, the Complaint alleges that the FAM change was a substantive departure from previous policy. “For decades,” asserts the City, the FAM’s definition of public charge did not encompass the receipt of non-cash benefit. Then, on January 3, 2018, the State Department changed course, making the receipt of non-cash benefits by both the visa applicant and his or her family a relevant factor. ECF 1, ¶ 44. Likewise, the State Department retracted its instruction that Affidavits of Support are “normally . . . sufficient,” and replaced it with the advisement that an Affidavit is simply a “positive factor.” Id., ¶¶ 47, 105.
Second, the City points to “specific sequences of events” that raise red flags. Shortly after President Trump’s inauguration, a draft Executive Order was leaked to the media, which directed DHS and the State Department to adjust how they conduct public charge determinations. Id. ¶ 77. Although the order was never finalized, both agencies have implemented nearly identical regulatory changes. Id. ¶ 78. Similarly, plaintiff alleges that the State Department published the amended Manual without forewarning; that when it did announce the changes on its website, it left out many of the details, including any explanation for the revisions; and it removed the press release from its website shortly after posting it. Id. ¶¶ 115-20.
Finally, the City identifies statements by the President and senior Executive Branch officials to support its claim that defendants’ decision was motivated, at least in part, by intentional discrimination against immigrants of color. See id. ¶¶ 69-73.
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The government throws the proverbial kitchen sink at the City’s equal protection claim. However, none of its arguments are persuasive.
As an initial matter, defendants contend that the City cannot raise a plausible equal protection claim because “aliens seeking entry into the United States cannot assert constructional rights.” ECF 17-1 at 44. That is undoubtedly true. Kerry v. Din, 576 ___ U.S. ___, ___, 35 S. Ct. 2128, 2131 (2015) (opinion of Scalia, J.); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). But, the City is not asserting the rights of unadmitted nonresident aliens. Rather, it seeks to assert the constitutional rights of its residents, particularly those who are affected by the FAM, either because they are immigrant residents, sponsors, or family members of a visa applicant. ECF 1, ¶¶ 195-97. Thus, Din and Kleindienst are inapposite.
Further, the government insists that the remarks by President Trump, on which the Cities relies, are merely “statements about policy” and that, regardless, none of these statements pertain to the FAM change. ECF 17-1 at 47-48. The government is wrong on both fronts.
It is true that many of the President’s remarks on which the City relies are policy or policyrelated statements, like his contention that “[c]urrent immigration policy imposes as much as $300 billion annually in net fiscal costs on U.S. taxpayers.” ECF 1, ¶ 71(p). And, others are nothing more than political bluster. See, e.g., id. ¶ 71(e) (“ObamaCare gives free insurance to illegal immigrants.”). Indeed, it cannot be the case that an equal protection claim is born every time a president expresses his views on contentious subjects, such as immigration. See Hawaii, 138 S. Ct. at 2417 (“The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.”). But, the Complaint contains statements of the President that plausibly constitute prejudice. Those statements include (1) the President’s alleged complaint on January 11, 2019, about “people from shithole countries” coming to the United States (id. ¶ 69);
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(2) his comment that immigrants from Haiti “all have AIDS” (id. ¶ 70); and (3) his assertion that Nigerians, if admitted to the United States, would never “go back to their huts” (id.).
And, the government invokes Trump v. Hawaii, __ U.S. __, 138 S. Ct. 2392 (2018), for the proposition that courts should ignore the President’s statements when searching for evidence of racial animus. ECF 17-1 at 48-49. In Trump v. Hawaii, the plaintiffs lodged, inter alia, an Establishment Clause challenge to Presidential Proclamation No. 9645, which restricted the entry of foreign nationals from six predominantly Muslim countries. Id. at 2403; see 82 Fed. Reg. 45161 (Sept. 27, 2017). The President’s statements in that case were at “the heart” of the plaintiffs’ constitutional claim. Id. at 2417. The plaintiffs obtained a preliminary injunction barring enforcement of the restrictions, and the government appealed. Id. at 2406-07.
As relevant here, the Court vacated the preliminary injunction based, in part, on finding that the plaintiffs had not “demonstrated a likelihood of success on the merits of their constitutional claim.” Id. at 2423. The Court applied the standard set forth in Kleindienst v. Mandel, 408 U.S. 753, 770 (1972), which provides that, pursuant to Congress’s plenary power over immigration, a court reviewing a constitutional attack on a visa denial should examine only whether there was a “facially legitimate and bona fide reason” for the decision. Id. at 2420.
Applying the Mandel standard, the Court found that the Proclamation was facially neutral as to religion, “reflect[ed] the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies,” and was “expressly premised on legitimate purposes: preventing the entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Id. at 2421. But, the Court went further, finding it appropriate to “look behind the face of the Proclamation to the extent of applying rational basis review.” Id. at 2420. Thus, the Court stated: “As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold
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the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” Id. Although the Court acknowledged the extrinsic record presented by the plaintiffs, it concluded that, “because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.” Id.
There is little daylight between Hawaii and the case sub judice. Here, as there, plaintiff mounts a constitutional challenge to an Executive Branch policy concerning the entry of foreign nationals into the country. Accordingly, the Court is limited to the “circumscribed judicial inquiry,” asking only if the FAM changes “can reasonably be understood to result from a justification independent of unconstitutional grounds.” Id. at 2420.
However, Hawaii does not foreclose plaintiff’s equal protection claim. First, rational basis review is not toothless. See, e.g., Romer v. Evans, 517 U.S. 620, 635 (1996); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448-50 (1985); U.S. Dep’t of Agric. v. Moreno, 413, U.S. 528, 534-36 (1973). Perhaps plaintiff will unearth evidence during discovery demonstrating that defendants were driven by nothing more than “a bare . . . desire to harm a politically unpopular group.” Moreno, 413 at 534. Or, perhaps defendants will produce evidence that the revisions to the FAM have a legitimate basis. But, at this juncture, there is no evidence as to why defendants amended the Manual.
Second, Hawaii in no ways holds that the President’s statements are irrelevant. See Int’l Refugee Assistance Project v. Trump, 373 F. Supp. 3d 650, 671 (D. Md. 2019) (“[Hawaii] does not instruct courts to disregard [presidential] statements . . ., nor does it hold that the subjective intent of the President and his advisors . . . is irrelevant.”); see also Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 519-520 (9th Cir. 2018), cert. granted, __ U.S. __,
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139 S. Ct. 2779 (2019) (No. 18-587); id. at 524 n.4 (Owens, J., concurring in the judgment). Indeed, despite limiting its review, the Hawaii Court nonetheless considered “extrinsic evidence”—namely, President Trump’s statements. Hawaii, 138 S. Ct. at 2420.
Finally, defendants ignore that the standard of review in Hawaii was materially different than the one this Court must apply to defendants’ Motion. The question in Hawaii was whether the plaintiffs had established a “likelihood of success on the merits,” so as to entitle them to a preliminary injunction. See id. at 2423; see also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Here, in contrast, this Court is tasked with deciding whether the Complaint states a plausible claim for relief. See Arab Am. Civil Rights League v. Trump, No. 17-10310, 2019 WL 3003455, at *9 (E.D. Mich. July 10, 2019) (declining to apply Hawaii v. Trump at motion to dismiss stage due to the differing standards of review).
The government is correct that none of the President’s statements relate specifically to the decision to change the FAM’s public charge provisions. But, at this juncture, the City does not need to demonstrate a tight nexus between words and actions. See, e.g., Saget v. Trump, 345 F. Supp. 3d 287 (E.D.N.Y. 2018) (plaintiffs plausibly alleged an equal protection violation based on the President’s statements); Casa de Md., Inc. v. Trump, 355 F. Supp. 3d 307, 325-26 (D. Md. 2018) (same); New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766, 810 (S.D.N.Y. 2018) (same), aff’d in part and rev’d in part, __ U.S. __, 139 S. Ct. 953 (2019); Centro Presente v. U.S. Dep’t of Homeland Sec., 332 F. Supp. 3d 393, 414-15 (D. Mass. 2018) (same); Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279 (E.D.N.Y. 2018) (rejecting the argument that the President’s statements were irrelevant to equal protection challenge to agency action). Indeed, “there can be no doubt that if, as alleged, the President influenced the decision to [amend the FAM], the discriminatory motivation cannot be laundered through the Secretary.” Casa de Maryland, 355 F.
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Supp. 3d at 326. And, in any event, plaintiff plausibly claims that President Trump was personally involved in the decision based on the draft Executive Order commanding the State Department to revise the FAM’s public charge provisions. ECF 1, ¶ 77.
Whether this evidence will ultimately suffice to establish an equal protection violation is a question for another day. At this juncture, accepting plaintiff’s allegations as true, and drawing all reasonable inferences in plaintiff’s favor, as I must at this stage, I conclude that the City has alleged sufficient facts to allege a claim of an equal protection violation.
VI. Injunctive relief and the President Relying primarily on Franklin v. Massachusetts, 505 U.S. 788 (1992) (plurality opinion), defendants assert that the Court should, at a minimum, dismiss the City’s claims against the President because “separation of powers generally prevents a federal court from issuing an injunction purporting to supervise the President’s performance of his duties.” ECF 17-1 at 50. The prospect of enjoining the President raises serious separation of powers concerns. Indeed, the Supreme Court has consistently cautioned courts against granting equitable relief against the chief executive. See Clinton v. Jones, 520 U.S. 681, 718-19 (1997) (Breyer, J. concurring); Massachusetts v. Mellon, 262 U.S. 447, 487 (1923) (The “general rule is that neither department may invade the province of the other and neither may control, direct, or restrain the action of the other”); Johnson, 71 U.S. (4 Wall.) 475, 500 (1866) (“Neither [the Congress or President] can be restrained in its actions by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.”). In Franklin, 505 U.S. 788, Massachusetts sued to enjoin the President from submitting the census statement to Congress under the APA and the Enumeration Clause. Id. at 802. A plurality of the Supreme Court observed that a “grant of injunctive relief against the President himself is
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extraordinary, and should . . . raise[ ] judicial eyebrows.” Id. The plurality went on to state: “in general ‘this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.’” Id. at 802-03 (quoting Johnson, 71 U.S. (4 Wall.) 475, 500). But the plurality did “not decide whether injunctive relief against the President was appropriate, because . . . the injury alleged is likely to be redressed by declaratory relief against the Secretary alone.” Id. at 803.
In a concurring opinion, Justice Scalia opined in Franklin: The apparently unbroken historical tradition supports the view, which I
think implicit in the separation of powers established by the Constitution, that the principals in whom the executive and legislative powers are ultimately vested— viz., the President and the Congress (as opposed to their agents)—may not be ordered to perform particular executive or legislative acts at the behest of the Judiciary. . . . . Permitting declaratory or injunctive relief against the President personally would not only distract him from his constitutional responsibility to “take Care that the Laws be faithfully executed,” U.S. Const., Art. II, § 3, but, as more and more disgruntled plaintiffs add his name to their complaints, would produce needless head-on confrontations between district judges and the Chief Executive. Id. at 827-28 (Scalia, J., concurring in part and concurring in the judgment) (internal quotation marks and citations omitted). But, this does not place the President above the law. Justice Scalia explained that “[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive . . . .” Id. at 828; accord Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir.), as amended (May 31, 2017), as amended (June 15, 2017) (reversing injunction issued against the President because injury could be remedied by injunctive relief against subordinate officials), vacated and remanded on other grounds sub nom. Trump v. Int’l Refugee Assistance, __ U.S. __, __, 138 S. Ct. 353, 199 (2017); Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996).
80

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Despite casting grave doubt on enjoining Presidential action, the Supreme Court has not foreclosed the possibility that it may be warranted in extreme cases. See Clinton v. New York, 524 U.S. 417, 433 n.22 (1998) (holding plaintiffs satisfied Article III standing because “each injury is traceable to the President's cancellation of [certain act provisions], and [it] would be redressed by a declaratory judgment that the cancellations are invalid”); see also Patricia M. Wald & Jonathan R. Siegel, The D.C. Circuit and the Struggle for Control of Presidential Information, 90 Geo. L.J. 737, 758 (2002) (noting that the Court “has not expressly held that a court may never enjoin the President,” only “that there is something unique about litigation against the President eo nomine that should cause a special judicial hesitation in the enforcement of legal constraints on executive action.”).
Other district courts, when faced with this delicate question at the motion to dismiss stage, have declined the government’s invitation to dismiss the President as a party. See Stone v. Trump, __ F. Supp. 3d __, __, 2019 WL 3935363 at ⃰ 29 (D. Md. Aug. 2019) (declining to dismiss President from suit on a motion to dismiss); District of Columbia v. Trump, 291 F. Supp. 3d 725, 751-52 (D. Md. 2018), rev’d and remanded on other grounds, In re Trump, 928 F.3d 360 (4th Cir. 2019) (same); Centro Presente, 332 F. Supp. 3d at 418-19 (finding it “premature to determine whether this case has the potential to be the rare case in which such an extraordinary remedy might be justified”); CASA de Md., 355 F. Supp. 3d at 328-29 (“Though ultimately, relief against the President himself is extraordinarily unlikely in this case, none of the authority cited by Defendants requires that the President be dismissed at this early stage. The Court thus denies Defendants' motion to dismiss President Trump from the case.”); Saget, at 345 F. Supp. 3d at 297-98 (E.D.N.Y. 2018) (“Because this could be one of the rare cases in which the extraordinary remedy of injunctive
81

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relief against the President could be appropriate, it is premature to dismiss the President as a party at this time.”).
Defendants contend that the City’s suit against the President is “especially weak” because the State Department, not the President, publishes the FAM. ECF 71 at 50. That may ultimately prove to be true. But this argument is misplaced at this stage in the litigation. Therefore, I shall deny the government’s motion to dismiss defendant President Trump as a party.
VII. Conclusion For the reasons stated above, I shall deny defendants’ Motion to Dismiss (ECF 17). An Order follows, consistent with this Memorandum Opinion.

Date: September 20, 2019

/s/ Ellen Lipton Hollander United States District Judge

82

 
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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

8 CITY AND COUNTY OF SAN FRANCISCO, et al.,
9
Plaintiffs, 10
v. 11

Case No. 19-cv-04717-PJH Case No. 19-cv-04975-PJH Case No. 19-cv-04980-PJH
Related Cases

U.S. CITIZENSHIP AND IMMIGRATION PRELIMINARY INJUNCTION 12 SERVICES, et al.,

13

Defendants.

14 STATE OF CALIFORNIA, et al.,

15

Plaintiffs,

16

v.

17 U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
18 Defendants.
19
LA CLINICA DE LA RAZA, et al., 20
Plaintiffs, 21
v. 22
DONALD J. TRUMP, et al., 23
Defendants. 24

25

This order concerns three motions for a preliminary injunction filed in three related

26 actions. Each of the plaintiffs in those actions moved for preliminary injunctive relief. The

27 motions came on for hearing before this court on October 2, 2019.

28

Plaintiff the City and County of San Francisco (“San Francisco”) appeared through

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1 its counsel, Matthew Goldberg, Sara Eisenberg, and Yvonne Mere. Plaintiff the County

2 of Santa Clara (“Santa Clara” and together with San Francisco, the “Counties”) appeared

3 through its counsel, Ravi Rajendra, Laura Trice, and Luke Edwards. Plaintiffs the State

4 of California, District of Columbia, State of Maine, Commonwealth of Pennsylvania, and

5 State of Oregon (together, including D.C., the “States”) appeared through their counsel,

6 Anna Rich, Lisa Cisneros, and Brenda Ayon Verduzco. Plaintiffs La Clinica De La Raza

7 and California Primary Care Association (the two together are the “Healthcare

8 Organizations”), Maternal and Child Health Access, Farmworker Justice, Council on

9 American Islamic Relations-California, African Communities Together, Legal Aid Society

10 of San Mateo County, Central American Resource Center, and Korean Resource Center

11 (the “Legal Organizations”) (the Legal Organizations and the Healthcare Organizations

12 together are the “Organizations”) appeared through their counsel, Alvaro Huerta,

13 Nicholas Espiritu, Joanna Cuevas Ingram, Kevin Herrera, Tanya Broder, Max Wolsen,

14 and Mayra Joachin.

15

Defendants U.S. Citizenship and Immigration Services (“USCIS”), Department of

16 Homeland Security (“DHS”), Kevin McAleenen as Acting Secretary of DHS, Kenneth T.

17 Cuccinelli as Acting Director of USCIS, and Donald J. Trump, as President of the United

18 States appeared through their counsel, Ethan Davis, Eric Soskin, and Kuntal Cholera.

19

Additionally, papers submitted by numerous amici curiae were before the court.

20 Prior to the hearing, the court granted motions to file amicus briefs on behalf of the

21 following non-parties, all of which the court considered in its analysis: American Public

22 Health Association, et al.; Asian Americans Advancing Justice, et al.; City of Los Angeles,

23 et al.; Justice in Aging, et al.; and Members of Congress. A number of other requests to

24 file amici briefs were denied due to the court’s insufficient time to consider them on this

25 particular motion, given the already-voluminous filings from the parties, the briefing

26 schedule, and the time-sensitive nature of plaintiffs’ request for preliminary relief.

27

Having read the papers filed by the parties and carefully considered their

28 arguments and the relevant legal authority, and good cause appearing, the court hereby

2

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1 GRANTS CERTAIN PLAINTIFFS’ MOTIONS AND ISSUES A PRELIMINARILY

2 INJUNCTION, the scope of which is discussed below, for the following reasons.

3

EXECUTIVE SUMMARY

4

In 1883, Emma Lazarus penned the now-famous sonnet, The New Colossus.

5 Later affixed to the Statue of Liberty in New York Harbor, the poem has been

6 incorporated into the national consciousness as a representation of the country’s promise

7 to would-be immigrants:

8

Not like the brazen giant of Greek fame,

9

With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

10

A mighty woman with a torch, whose flame

11

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

12

Glows world-wide welcome; her mild eyes command

13

The air-bridged harbor that twin cities frame.

14

"Keep, ancient lands, your storied pomp!" cries she

15

With silent lips. "Give me your tired, your poor,

Your huddled masses yearning to breathe free,

16

The wretched refuse of your teeming shore.

17

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!" 18

19

But whether one would prefer to see America’s borders opened wide and

20 welcoming, or closed because the nation is full, laws—not poetry—govern who may

21 enter. And the year before Lazarus wrote The New Colossus, Congress had enacted its

22 first comprehensive immigration law, barring entry to “any convict, lunatic, idiot, or any

23 person unable to take care of himself or herself without becoming a public charge,”

24 among others. An Act to Regulate Immigration, 22 Stat. 214, Chap. 376 § 2. (1882).

25 Although various iterations of similar laws have since come and gone (the operative

26 statute no longer refers to “lunatics” or “idiots”), since the very first immigration law in

27 1882, this country has consistently excluded those who are likely to become a “public

28 charge.” 3

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1

Although Congress has never authored an explicit definition of the term, courts

2 and the executive branch have been considering its meaning as used in the statute for

3 over one hundred and twenty years. As interpretations from those two branches

4 accreted toward a consistent understanding, Congress repeatedly enacted statutes

5 adopting the identical phrase.

6

In 1999, the executive branch reviewed its historical application of the term and

7 issued formal guidance to executive employees, explaining that the public charge

8 determination has historically, and should continue to, focus on whether an individual is

9 primarily dependent on the government for subsistence.

10

In 2018, DHS published a new rule (scheduled to take effect October 15, 2019)

11 that proposed to dramatically expand the definition of “public charge.” Rather than

12 include only those who primarily depend on the government for subsistence, DHS now

13 proposes for the first time to categorize as a public charge every person who receives 12

14 months of public benefits (including many in-kind benefits, like Medicaid and SNAP/Food

15 Stamps) over any 36-month period, regardless of how valuable those benefits are, or

16 how much they cost the government to provide (receiving two types of benefits in one

17 month would count as receiving benefits for two months).

18

Today, the court is presented with a challenge to DHS’s new definition. The

19 plaintiffs seek to prevent defendants from implementing it before this court can consider

20 this case on the merits. The plaintiffs argue that the new definition will lead to

21 widespread disenrollment1 from public benefits by those who fear being labeled a public

22 charge (and by those confused that they may be swept up in the rule), which will cause

23 plaintiffs to lose a substantial amount funding (for example, the federal government

24 heavily subsidizes state expenses for those enrolled in Medicaid).

25

The court finds that the plaintiffs are likely to prevail on the merits, for numerous

26

27 1 When plaintiffs refer to harms caused by those who will disenroll from public benefits in

28

addition to those who will forego enrollment. This order considers the two categories together, and refers to them interchangeably.

4

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1 reasons. DHS’s new definition of “public charge” is likely to be outside the bounds of a

2 reasonable interpretation of the statute. Moreover, plaintiffs are likely to prevail on their

3 entirely independent arguments that defendants acted arbitrarily and capriciously during

4 the legally-required process to implement the changes they propose. Because plaintiffs

5 are likely to prevail and will be irreparably harmed if defendants are permitted to

6 implement the rule as planned on October 15, this court will enjoin implementation of the

7 rule in the plaintiff states until this case is resolved on the merits, as discussed in more

8 detail below.

9

BACKGROUND

10

In each of the actions before the court, the plaintiffs challenge and seek to

11 preliminarily enjoin implementation of a proposed rule entitled “Inadmissibility on Public

12 Charge Grounds,” proposed by DHS and published in the Federal Register on August 14,

13 2019. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (August 14,

14 2019) (“the Rule”). The Rule is scheduled to take effect nationwide on October 15, 2019.

15 A. The Three Actions

16

In City and County of San Francisco v. U.S. Citizenship and Immigration Services,

17 Case No. 19-cv-04717-PJH, San Francisco and Santa Clara (together, the “Counties”)

18 filed a complaint naming as defendants USCIS; DHS; McAleenen as Acting Secretary of

19 DHS; and Cuccinelli as Acting Director of USCIS. The complaint asserts two causes of

20 action under the Administrative Procedure Act (“APA”): (1) Violation of APA, 5 U.S.C.

21 § 706(2)(A)—Not in Accordance with Law; and (2) Violation of APA, 5 U.S.C.

22 § 706(2)(A)—Arbitrary, Capricious, and Abuse of Discretion. The Counties filed the

23 present motion for preliminary injunction on August 28, 2019.

24

In State of California v. U.S. Department of Homeland Security, Case No. 19-cv-

25 04975-PJH, the States filed a complaint naming the same defendants as the Counties:

26 USCIS; DHS; McAleenen as Acting Secretary of DHS; and Cuccinelli as Acting Director

27 of USCIS. The complaint asserts six causes of action: (1) Violation of APA, 5 U.S.C.

28 § 706—Contrary to Law, the Immigration and Nationality Act and the Illegal Immigration

5

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1 Reform and Immigrant Responsibility Act; (2) Violation of APA, 5 U.S.C. § 706—Contrary

2 to Law, Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794 (the

3 “Rehabilitation Act”); (3) Violation of APA, 5 U.S.C. § 706—Contrary to Law, State

4 Healthcare Discretion; (4) Violation of APA, 5 U.S.C. § 706—Arbitrary and Capricious;

5 (5) Violation of the Fifth Amendment’s Due Process clause requiring Equal Protection

6 based on race; (6) Violation of the Fifth Amendment’s Due Process clause, based on a

7 violation of Equal Protection principles based on unconstitutional animus. The States

8 filed the present motion for preliminary injunction on August 26, 2019. On August 27,

9 2019, this court ordered the action brought by the States related to the action brought by

10 the Counties.

11

In La Clinica De La Raza v. Trump, Case No. 19-cv-04980-PJH, the Organizations

12 filed a complaint naming the same defendants as the Counties, and also added Donald J.

13 Trump: USCIS; DHS; McAleenen as Acting Secretary of DHS; and Cuccinelli as Acting

14 Director of USCIS; and Donald J. Trump, as President of the United States. The

15 complaint asserts four causes of action: (1) Violation of APA, 5 U.S.C. § 706—Contrary

16 to the Statutory Scheme; (2) Violation of APA, 5 U.S.C. § 706—Arbitrary, Capricious, or

17 otherwise not in accordance with law; (3) Violation of the Fifth Amendment based on

18 Equal Protection for discriminating against non-white immigrants; (4) under the

19 Declaratory Judgment Act, seeking a determination that the Rule is invalid because it

20 was issued by an unlawfully-appointed agency director. On August 30, 2019, this court

21 ordered the action brought by the Organizations related to the action brought by the

22 Counties. The Organizations filed the present motion for preliminary injunction on

23 September 4, 2019.

24 B. The Dispute

25

The Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq. (“INA”), requires

26 that all noncitizens seeking to be lawfully admitted into the United States or to become

27 lawful permanent residents (“LPRs”) prove they are not inadmissible. 8 U.S.C. § 1361; 8

28 U.S.C. § 1225(a). A noncitizen may be deemed inadmissible on any number of grounds,

6

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1 including that they are “likely at any time to become a public charge.” 8 U.S.C.

2 § 1182(a)(4)(A).

3

The specific INA provision relating to whether an alien is likely to become a “public

4 charge” at issue in this litigation provides, in relevant part:

5

Except as otherwise provided in this chapter, aliens who are

inadmissible under the following paragraphs are ineligible to

6

receive visas and ineligible to be admitted to the United States:

. . . .

7

(4) Public charge

8

(A) In general

9

Any alien who, in the opinion of the consular

officer at the time of application for a visa, or in

10

the opinion of the Attorney General at the time of

application for admission or adjustment of status,

11

is likely at any time to become a public charge is

inadmissible. 12

(B) Factors to be taken into account 13

(i) In determining whether an alien is

14

inadmissible under this paragraph, the

consular officer or the Attorney General

15

shall at a minimum consider the alien’s—

(I) age;

16

(II) health;

(III) family status;

17

(IV) assets, resources, and

financial status; and

18

(V) education and skills.

19

(ii) In addition to the factors under clause

(i), the consular officer or the Attorney

20

General may also consider any affidavit of

support under section 1183a[2] of this title

21

for purposes of exclusion under this

paragraph. 22

23 8 U.S.C. § 1182(a)(4).

24

The statute directs a “consular officer” or “the Attorney General” to form an opinion

25 as to whether the applicant “is likely at any time to become a public charge.” Id. In

26

27 2 Section 1183a is titled “Requirements for sponsor’s affidavit of support” and sets forth

28

the requirements of an “affidavit of support . . . to establish that an alien is not excludable as a public charge under section 1182(a)(4) of this title[.]” 8 U.S.C. § 1183a(a)(1).

7

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1 forming that opinion, immigration officers must consider “at a minimum” five statutorily-

2 defined factors: (1) age; (2) health; (3) family status; (4) assets, resources, and financial

3 status; (5) education and skills. 8 U.S.C. § 1182(a)(4)(B)(i).

4

An officer may additionally consider an affidavit of support, which is a legally-

5 enforceable contract between the sponsor of the applicant and the Federal Government.

6 See 8 U.S.C. § 1182(a)(4)(B)(ii); 8 U.S.C. § 1183a(a). The sponsor pledges to accept

7 financial responsibility for the applicant and to maintain the applicant at an income of “not

8 less than 125 percent of the Federal poverty line during the period in which the affidavit is

9 enforceable[.]” 8 U.S.C. § 1183a(a)(1)(A).

10

Certain groups of noncitizens, such as asylum seekers and refugees, are not

11 subject to exclusion based on an assessment that they are likely to become a public

12 charge. See 8 U.S.C. § 1157 (refugee); 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1159(c)

13 (refugee).

14

An alien found to be inadmissible as a public charge may “be admitted in the

15 discretion of the Attorney General . . . upon the giving of a suitable and proper bond or

16 undertaking approved by the Attorney General, in such amount and containing such

17 conditions as he may prescribe . . . holding the United States and all States . . . harmless

18 against such alien becoming a public charge.” 8 U.S.C. § 1183.

19

The public charge ground may arise when, inter alia, an alien seeks LPR status, or

20 when noncitizens apply for visas. 8 U.S.C. § 1182(a); 8 U.S.C. § 1255(a). Aliens “to

21 whom a permit to enter the United States has been issued to enter the United States” are

22 also subject to an inadmissibility determination by DHS at ports of entry when they enter

23 and re-enter the United States. 8 U.S.C. § 1185(d).

24

Immigrants with LPR status may also be subject to the public charge analysis. For

25 example, an LPR is considered to be “seeking admission” under various circumstances,

26 for example when returning to the United States after being “absent from the United

27 States for a continuous period in excess of 180 days” or after engaging in any “illegal

28 activity after having departed the United States[.]” 8 U.S.C. § 1101(a)(13)(C)(ii)–(iii).

8

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1 LPRs can also be denied citizenship and/or placed in removal proceedings if DHS

2 determines retrospectively that they were inadmissible as a public charge at the time of

3 their adjustment. 8 U.S.C. § 1227(a)(1)(A); 84 Fed. Reg. at 41,328 & n.176 (discussing

4 possible impact on naturalizations).

5

Under a separate provision in the INA, an alien can be deported upon a

6 determination that he has in fact become a public charge since his admission, from

7 causes “not affirmatively shown to have arisen since entry[.]” 8 U.S.C. 1227(a)(5).3

8

On October 10, 2018, DHS began the rule-making process to create a new

9 framework for the public charge assessment by publishing a Notice of Proposed

10 Rulemaking. See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct.

11 10, 2018) (the notice of proposed rulemaking is the “NPRM”). The NPRM provided a 60-

12 day public comment period, during which 266,077 comments were collected. See 84

13 Fed. Reg. at 41,297. On August 14, 2019, DHS published the Rule in the Federal

14 Register. Id. at 41,292. It is set to become effective on October 15, 2019. On October 2,

15 2019—the morning of the hearing on the pending motions for preliminary injunction—

16 DHS published a 25-page list of “corrections” to the proposed final rule.4 See Case No.

17 19-cv-04717-PJH, Dkt. 106, Ex. A. DHS stated that its October 2 amendments to the

18 rule would not delay its planned implementation on October 15.

19

The Rule sets out what the parties have referred to as the “12/36 standard.” That

20 is, the Rule “redefines the term ‘public charge’ to mean an alien who receives one or

21 more designated public benefits for more than 12 months in the aggregate within any 36-

22

23 3 Confusingly, DHS’s Rule would use completely distinct definitions for the term “public

24

charge” when assessing whether an alien “has become a public charge” (8 U.S.C. 1227(a)(5)) and whether an alien “is likely at any time to become a public charge” (8

25 U.S.C. 1182(a)(4)(A).

26

4 Although defendants described the changes as fixes to “technical and typographical errors” (Case No. 19-cv-04717-PJH, Dkt. 106, Ex. A at 2), the States argued at the

27

hearing that upon their limited review of the corrections (a review that was necessarily limited given the eleventh-hour disclosure of DHS’s changes to the rule), the

28

amendments mooted at least one issue underlying the States’ motion, regarding treatment of military families.

9

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1 month period (such that, for instance, receipt of two benefits in one month counts as two

2 months). This Rule defines the term ‘public benefit’ to include cash benefits for income

3 maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the

4 Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance,

5 and certain other forms of subsidized housing.” 84 Fed. Reg. at 41,295.

6

Because the INS directs immigration officers to opine as to whether an alien “is

7 likely at any time to become a public charge,” the Rule’s new definition requires

8 immigration officers to opine as to whether an alien is likely to receive certain public

9 benefits for more than 12 months in the aggregate within any future 36-month period to

10 determine whether he is likely to become a public charge. The rule sets out a number of

11 positive, negative, heavily-weighted, and normally-weighted factors to assist in making

12 that determination, and those factors are considered as part of a “totality of the

13 circumstances” assessment of whether an alien is likely to use more than 12 months’

14 worth of benefits in any future 36-month period.

15

DISCUSSION

16 A. Legal Standard

17

Federal Rule of Civil Procedure 65 provides federal courts with the authority to

18 issue preliminary injunctions. Fed. R. Civ. P. 65(a). Generally, the purpose of a

19 preliminary injunction is to preserve the status quo and the rights of the parties until a

20 final judgment on the merits can be rendered. See U.S. Philips Corp. v. KBC Bank N.V.,

21 590 F.3d 1091, 1094 (9th Cir. 2010).

22

An injunction is a matter of equitable discretion and is “an extraordinary remedy

23 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

24 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); see also Munaf v. Geren,

25 553 U.S. 674, 689–90 (2008). A preliminary injunction “should not be granted unless the

26 movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong,

27 520 U.S. 968, 972 (1997) (per curiam).

28

“A plaintiff seeking a preliminary injunction must establish that [1] he is likely to

10

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1 succeed on the merits, that [2] he is likely to suffer irreparable harm in the absence of

2 preliminary relief, that [3] the balance of equities tips in his favor, and that [4] an

3 injunction is in the public interest.” Winter, 555 U.S. at 20.

4

Alternatively, “‘serious questions going to the merits’ and a hardship balance that

5 tips sharply toward the plaintiff can support issuance of an injunction, assuming the other

6 two elements of the Winter test are also met.” All. for the Wild Rockies v. Cottrell, 632

7 F.3d 1127, 1132 (9th Cir. 2011). “That is, ‘serious questions going to the merits’ and a

8 balance of hardships that tips sharply towards the plaintiff can support issuance of a

9 preliminary injunction, so long as the plaintiff also shows that there is a likelihood of

10 irreparable injury and that the injunction is in the public interest.” Id. at 1135; see also

11 Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017).

12

If a plaintiff satisfies its burden to demonstrate that a preliminary injunction should

13 issue, “injunctive relief should be no more burdensome to the defendant than necessary

14 to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702

15 (1979).

16

Separately, the APA permits this court to “postpone the effective date of action . . .

17 pending judicial review.” 5 U.S.C. § 705; Bakersfield City Sch. Dist. of Kern Cty. v.

18 Boyer, 610 F.2d 621, 624 (9th Cir. 1979) (“The agency or the court may postpone or stay

19 agency action pending such judicial review.”) (citing 5 U.S.C. § 705). Any such

20 postponement must be made “[o]n such conditions as may be required and to the extent

21 necessary to prevent irreparable injury[.]” 5 U.S.C. § 705. The factors considered when

22 issuing such a stay substantially overlap with the Winter factors for a preliminary

23 injunction. See, e.g., Bauer v. DeVos, 325 F. Supp. 3d 74, 104–07 (D.D.C. 2018).

24 B. Analysis

25

In considering plaintiffs’ motions for preliminary injunction, the court considers the

26 Winter factors (and the alternative All. for the Wild Rockies) factors in turn. First, the

27 court considers whether plaintiffs have demonstrated they are likely to succeed on the

28 merits of their claims, or alternatively whether they have demonstrated serious questions

11

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1 going to the merits. Because a plaintiff must be within a statute’s “zone of interest” to

2 succeed on an APA challenge based on the underlying statute, the court considers

3 whether each plaintiff is within the relevant statute’s zone of interests when assessing its

4 likelihood of success on the merits.

5

Second, the court considers whether plaintiffs have demonstrated they are likely to

6 suffer irreparable harm in the absence of preliminary relief. Because plaintiffs’ alleged

7 irreparable harms are also their alleged bases for standing, the court considers whether

8 each plaintiff has standing to bring a ripe claim when assessing its irreparable harms.

9

Third, the court considers whether plaintiffs have demonstrated that the balance of

10 equities tip in their favor, and whether the balance of hardships tip sharply in their favor.

11

Fourth, the court considers whether plaintiffs have demonstrated that an injunction

12 is in the public interest.

13

Fifth, the court addresses the scope of injunctive relief necessary and capable of

14 providing complete relief to the harms plaintiffs have demonstrated they are likely to

15 suffer prior to a determination on the merits, absent such relief.

16

1. The State and County Plaintiffs Are Likely to Succeed on the Merits

17

and Have Raised Serious Questions

18

Plaintiffs argue that they are likely to succeed on three of their causes of action,

19 each alleging a violation of the APA: (1) that the Rule violates the APA because it is not

20 in accordance with the term “public charge” as used in the INA; (2) that the Rule violates

21 the APA because it is not in accordance with the Rehabilitation Act § 504; and (3) that the

22 Rule violates the APA because it is arbitrary, capricious, and an abuse of discretion.5

23

Under the APA, “the reviewing court shall decide all relevant questions of law,

24 interpret constitutional and statutory provisions, and determine the meaning or

25

26

5 Although some of the arguments supporting these claims are likely to overlap with other claims plaintiffs assert, plaintiffs have made clear that they are not moving for a

27

preliminarily injunction based on any other claim, including, inter alia, the claim that the Rule violates the APA because it is contrary to laws giving the States discretion with

28

respect to the provision of healthcare, the claim under the declaratory judgment act that Cuccinelli was unlawfully appointed, or any of the asserted Constitutional claims.

12

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1 applicability of the terms of an agency action. The reviewing court shall . . . hold unlawful

2 and set aside agency action, findings, and conclusions found to be . . . arbitrary,

3 capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C.

4 § 706.

5

“In the usual course, when an agency is authorized by Congress to issue

6 regulations and promulgates a regulation interpreting a statute it enforces, the

7 interpretation receives deference if the statute is ambiguous and if the agency’s

8 interpretation is reasonable. This principle is implemented by the two-step analysis set

9 forth in Chevron.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016)

10 (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).

11 “At the first step, a court must determine whether Congress has ‘directly spoken to the

12 precise question at issue.’ If so, ‘that is the end of the matter; for the court, as well as the

13 agency, must give effect to the unambiguously expressed intent of Congress.’ If not,

14 then at the second step the court must defer to the agency's interpretation if it is

15 ‘reasonable.’” Encino Motorcars, 136 S. Ct. at 2124–25 (citations omitted) (quoting

16 Chevron, 467 U.S. at 842–44).

17

“[I]f the statute is silent or ambiguous with respect to the specific issue, the

18 question for the court is whether the agency's answer is based on a permissible

19 construction of the statute.” Chevron, 467 U.S. at 843; see also Michigan v. E.P.A., 135

20 S. Ct. 2699, 2707 (2015) (“Even under this deferential standard, however, agencies must

21 operate within the bounds of reasonable interpretation.”) (internal quotation marks

22 omitted).

23

The Chevron analysis calls upon the court to “employ[] traditional tools of statutory

24 construction” to fulfill its role as “the final authority on issues of statutory construction[.]”

25 Chevron, 467 U.S. at 843 n.9; accord Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630

26 (2018).

27

“Chevron deference, however, is not accorded merely because the statute is

28 ambiguous and an administrative official is involved. To begin with, the rule must be

13

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1 promulgated pursuant to authority Congress has delegated to the official.” Gonzales v.

2 Oregon, 546 U.S. 243, 258 (2006). “The starting point for this inquiry is, of course, the

3 language of the delegation provision itself. In many cases authority is clear because the

4 statute gives an agency broad power to enforce all provisions of the statute.” Id. (drawing

5 a distinction between delegation of authority to carry out the act generally, and authority

6 to execute the functions assigned to the agency).

7

First, the court assesses whether plaintiffs are likely to succeed on their claims

8 under the APA that the Rule is not in accordance with law, as provided in 8 U.S.C.

9 § 1182(a)(4). Second, the court assesses whether plaintiffs are likely to succeed on their

10 claims under the APA that the Rule is not in accordance with law, as provided in the

11 Rehabilitation Act § 504. Third, the court assess whether plaintiffs are likely to succeed

12 on their claims under the APA, that the Rule is arbitrary and capricious. Fourth, the court

13 assesses whether each plaintiff is within the relevant zone of interests, which is required

14 to succeed on an APA claim.

15

a. Not in Accordance with Law—8 U.S. Code § 1182(a)(4)

16

Plaintiffs argue that the Rule is not in accordance with the definition of “public

17 charge” as used in 8 U.S. Code § 1182(a)(4) for three reasons: (1) DHS’s interpretation

18 should not be accorded any deference, and the Rule’s definition is inconsistent with the

19 statute; (2) even if the term is accorded deference, the term plainly and unambiguously

20 means “primarily dependent on the government for subsistence,” and the Rule conflicts

21 with that definition; and (3) the Rule’s definition of “public charge” is not reasonable or

22 based on a permissible construction of the statute.

23

The court did not understand plaintiffs to have raised the first argument in their

24 moving papers, although the Counties may have raised it obliquely in their reply. But the

25 court and defendants were surprised to learn at the hearing that plaintiffs were advancing

26 an argument that DHS’s promulgation of the Rule was wholly outside of Congressionally-

27 delegated authority. Cf. Counties’ Reply at 8–9 (“Counties do not contest DHS’s

28 authority to issue rational regulations governing the case-by-case application of the

14

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1 statutory standard, so long as they do not misconstrue the term ‘public charge.’”); States’

2 Reply at 9–10 (“the States have never disputed the commonsense point that Congress in

3 8 U.S.C. § 1182(a)(4)(A) assigned responsibility to Defendants to make individual public

4 charge determinations”); Organizations’ Reply at 9 (“even if Defendants were correct,

5 Congress could delegate to DHS the power only to adopt reasonable interpretations of

6 the statute”). Nevertheless, plaintiffs have not sufficiently supported, or even explained,

7 their argument to satisfy their burden to show likelihood of success on the merits based

8 on it.6 Accordingly, the court analyzes the Rule pursuant to the framework set out by

9 Chevron.

10

The second and third arguments concern a challenge under Chevron’s framework

11 to the meaning of “public charge” as used in § 1182(a)(4). Plaintiffs’ second argument

12 requires the court to determine whether the Rule contravenes the statute’s unambiguous

13 meaning, and their third argument requires the court to determine whether defendants’

14 chosen definition is reasonable and based on a permissible construction of the statute.

15 Both questions require a discussion of the long usage of the term by Congress, as well

16 as the expansive evaluation of the term by courts and executive agencies.

17

As preface to that discussion, a brief outline helps set the stage. The phrase

18 “public charge” was used in this country’s first-ever general immigration statute in 1882.

19 The immigration statutes have been interpreted and modified many time since then, and

20 although many other excluded categories of persons came and went, with each

21 modification through today the phrase “public charge” remained intact. As a result, the

22 meaning that the persistent term had when first used is relevant to understanding the

23 meaning Congress ascribed to it with each subsequent statutory revision, including the

24 now-operative statute, which most recently saw changes to the relevant provisions in

25 1990 and 1996.

26

27 6 However, the court notes that whether DHS’s promulgation of the Rule falls within the

28

rulemaking authority delegated to it by Congress may benefit from more attention in the parties’ future briefing on the merits. See generally 8 U.S.C. § 1103(a).

15

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1

Ultimately, this dispute concerns the meaning of a statutory term passed in 1990—

2 with clarifying language passed in 1996. As such, the court considers the meaning

3 ascribed to the term by Congress at that time, but in doing so it must afford due

4 consideration to Congress’s understanding of the term given the long historical context it

5 was operating within, which the court presently endeavors to describe. See Forest Grove

6 Sch. Dist. v. T.A., 557 U.S. 230, 239–40 (2009) (“Congress is presumed to be aware of

7 an administrative or judicial interpretation of a statute and to adopt that interpretation

8 when it re-enacts a statute without change.”) (quoting Lorillard v. Pons, 434 U.S. 575,

9 580 (1978)); United States v. Argueta-Rosales, 819 F.3d 1149, 1159 (9th Cir. 2016)

10 (same); J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951 (9th Cir. 2010) (Congress

11 does no “abrogate[] sub silentio the Supreme Court’s decision[s]”); Bob Jones Univ. v.

12 United States, 461 U.S. 574, 600–01 (1983) (interpretation informed by the fact that

13 Congress had a “prolonged and acute awareness” of an established agency

14 interpretation of a statute, considered the precise issue, and rejected bills to overturn the

15 prevailing interpretation); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S.

16 353, 381–82 (1982) (Congress is aware “of the ‘contemporary legal context’ in which” it

17 legislates, and amending a statute while leaving certain statutory provisions intact “is

18 itself evidence that Congress affirmatively intended to preserve that” context); see also

19 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (“Few principles of statutory

20 construction are more compelling than the proposition that Congress does not intend sub

21 silentio to enact statutory language that it has earlier discarded in favor of other

22 language.”); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975) (rejecting

23 construction of statute that would implement substance of provision that Conference

24 Committee rejected).

25

1. 1882 Act

26

In 1882, Congress enacted the country’s first general immigration statute. See

27 An Act to Regulate Immigration, 22 Stat. 214 (1882) (the “1882 Act”). That statute

28 provided, in part:

16

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1

That the Secretary of the Treasury . . . shall have power to . . .

provide for the support and relief of such immigrants therein

2

landing as may fall into distress or need public aid . . . and it

shall be the duty of such State . . . to examine into the condition

3

of passengers arriving at the ports . . . and if on such

examination there shall be found among such passengers any

4

convict, lunatic, idiot, or any person unable to take care of

himself or herself without becoming a public charge . . . such

5

persons shall not be permitted to land.

6 22 Stat. 214, Chap. 376 § 2.

7

Legislative debate on the 1882 Act shows that at least one member of Congress

8 sought to prevent foreign nations from “‘send[ing] to this country blind, crippled, lunatic,

9 and other infirm paupers, who ultimately become life-long dependents on our public

10 charities.’” 13 Cong. Rec. 5108-10 (June 19, 1882) (statement of Rep. Van Voorhis).

11

The 1882 Act also imposed on each noncitizen who entered the United States a

12 50-cent head tax for the purpose of creating an “immigrant fund”:

13

That there shall be levied, collected, and paid a duty of fifty

14

cents for each and every passenger not a citizen of the United

States who shall come by steam or sail vessel from a foreign

15

port to any port within the United States. . . . The money thus

collected shall . . . constitute a fund to be called the immigrant

16

fund, and shall be used . . . to defray the expense of regulating

immigration under this act, and for the care of immigrants

17

arriving in the United States, for the relief of such as are in

distress[.] 18

19 22 Stat. 214, Chap. 376, § 1; see also Edye v. Robertson, 112 U.S. 580, 590–91 (1884)

20 (“This act of congress is similar, in its essential features, to many statutes enacted by

21 states of the Union for the protection of their own citizens, and for the good of the

22 immigrants who land at sea-ports within their borders. That the purpose of these statutes

23 is humane, is highly beneficial to the poor and helpless immigrant, and is essential to the

24 protection of the people in whose midst they are deposited by the steam-ships, is beyond

25 dispute.”).

26

Nineteenth-century dictionaries defined “charge” as “That which is enjoined,

27 committed, entrusted or delivered to another, implying care, custody, oversight, or duty to

28 be performed by the person entrusted” and “The person or thing committed to anothers 17

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1 [sic] custody, care or management; a trust. Thus the people of a parish are called the

2 ministers charge.” Charge, Webster’s Dictionary (1828 Online Edition),

3 http://webstersdictionary1828.com/Dictionary/charge; Charge, Webster’s Dictionary

4 (1886 Edition), https://archive.org/details/websterscomplete00webs/page/218 (“person or

5 thing committed or intrusted [sic] to the care, custody, or management of another; a trust;

6 as, to abandon a charge”).7

7

Another contemporary source defines charge “In its general sense, a charge is an

8 obligation or liability. Thus we speak of . . . a pauper being chargeable to the parish or

9 town.” Stewart; Lawrence Rapalje, Robert L., Dictionary of American and English Law,

10 with Definitions of the Technical Terms of the Canon and Civil Laws (1888), at 196.

11

Prior to the 1882 Act’s enactment, states had played a larger role in immigration

12 than they do today, and state governments had used and interpreted the term “public

13 charge,” although of course not in relation to any Congressional act.

14

For example, the New Jersey Supreme Court, when interpreting a statute

15 concerning the procedures to remove an individual from a township in New Jersey,

16 considered whether a pauper was “either chargeable, or likely to become chargeable, to

17 the township of Princeton.” Overseers of Princeton Twp. v. Overseers of S. Brunswick

18 Twp., 23 N.J.L. 169, 170 (Sup. Ct. 1851). Although the case does not make clear what

19 precise relief is necessary to qualify as a public charge, it contemplated that one became

20 a public charge upon seeking such relief from “the church wardens or overseers of the

21 poor[.]” Id. at 173. The concurrence clarified that an “application for relief” is distinct from

22 being “chargeable,” although “[t]he probability of his becoming chargeable is sufficiently

23 shown by his application for relief.” Id. at 179 (Carpenter, J. concurring). The case does

24

25

7 Defendants cite Frederic Jesup Stimson, Glossary of Technical Terms, Phrases, and Maxims of the Common Law (1881), but that source does not provide a relevant

26

definition. The first-listed definition is the most plausibly-relevant: “A burden, incumbrance, or lien; as when land is charged with a debt.” Id. at 56. But that definition

27

concerns how the word charge relates to real property, which makes sense because at the time, “[m]ore frequently, however, charge is applied to property” as “a general term[.]”

28

Stewart; Lawrence Rapalje, Robert L., Dictionary of American and English Law, with Definitions of the Technical Terms of the Canon and Civil Laws (1888), at 196.

18

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1 not explain the type or quantum of relief necessary to constitute one’s status as a

2 “charge.”

3

Another state court opinion, People ex rel. Durfee v. Commissioners of Emigration,

4 27 Barb. 562, 1858 WL 7084 (N.Y. Sup. Ct. 1858), addressed a statute which

5 contemplated bonds being paid on behalf of immigrants, and required the commissioners

6 of immigration who held those bonds to “indemnify so far as may be the several cities,

7 towns and counties of the state, for any expense or charge which may be incurred for the

8 maintenance and support of the” immigrants. 27 Barb. at 570. The court held that the

9 statute required indemnification of all expenses made on behalf of the immigrants—

10 whether temporary or permanent—so long as the expenses were lawfully made. Id.

11 However, the case did not draw a clean line holding that any expense spent on an

12 individual makes him a public charge. Rather, an equally-plausible reading of the opinion

13 is that the statute requires immunity of all expenses paid to support immigrants for whom

14 bonds have been paid, regardless of whether they are formally considered public

15 charges.8

16

City of Bos. v. Capen, 61 Mass. 116, 121 (1851) concerned a statute which

17 required a bond for someone likely to become a public charge. The court explained that

18 the statute described various categories of people identified as being at risk of becoming

19 a public charge, and for whom bond may be required. However, what assistance or

20 payment qualified one as a "public charge” was not addressed.9

21

As a whole, the statutory language and authority underlying the 1882 Act provide

22

23

8 The latter reading would be in accordance with the current interpretation of “public charge” as used elsewhere in the INA, which requires an alien to be presented with a bill

24

and prove unable or unwilling to pay it to be deemed a public charge. E.g., Matter of B-, 3 I. & N. Dec. 323 (A.G. 1948); Field Guidance on Deportability and Inadmissibility on

25 Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999); 84 Fed. Reg. at 41,295.

26

9 The opinion also suggested that those who were “paupers in a foreign land” must have been “a public charge in another country,” and then stated without explanation that “the

27

word ‘paupers’ being used in this connection in its legal, technical sense.” Capen, 61 Mass. at 121. Even looking past the confusion, the court might be interpreted as finding

28

that all paupers have been public charges, but from that the conclusion cannot be drawn that all public charges must have been paupers.

19

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1 some clear guidance as to the definition of public charge. For example, the 1882 Act

2 contemplated that admitted aliens (not excluded on public charge grounds) would receive

3 some assistance from the state. That is made clear by the same statute’s establishment

4 of a fund “for the care of immigrants arriving in the United States, for the relief of such as

5 are in distress[.]” 22 Stat. 214, Chap. 376, § 1. Although the quantum of state support

6 necessary to render one a public charge is less clear, the 1882 Act did not consider an

7 alien a public charge for simply receiving some assistance from the state. Also, it

8 appears that contemporary uses of the term would deem one a public charge after taking

9 on a particular, chargeable debt from the state and failing to repay it.

10

2. 1891

11

In 1891, Congress amended the 1882 Act. That amended statute provided, in

12 part:

13

That the following classes of aliens shall be excluded from

admission into the United States . . . : All idiots, insane persons,

14

paupers or persons likely to become a public charge, persons

suffering from a loathsome or a dangerous contagious disease,

15

persons who have been convicted of a felony or other infamous

crime or misdemeanor involving moral turpitude, polygamists,

16

and . . . .

17 An Act in Amendment to the Various Acts Relative to Immigration and the Importation of

18 Aliens Under Contract or Agreement to Perform Labor, 26 Stat. 1084, Chap. 551 (“1891

19 Act”) § 1 (1891).

20

The 1891 amendment also provided that “any alien who becomes a public charge

21 within one year after his arrival in the United States from causes existing prior to his

22 landing therein shall be deemed to have come in violation of law and shall be returned”

23 pursuant to the procedures outline in the statute regarding aliens entering unlawfully.

24 1891 Act § 11. So, the 1891 Act set out the now-familiar practice of subjecting aliens to

25 two “public charge” assessments—one in which the government is called on to make a

26 forward-looking prediction, and another in which the government is called on to make a

27 backward-looking assessment. The first asks at the time of entry whether the alien is

28 likely to become a public charge. The second asks whether, after some period of time, 20

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1 the alien has in fact become a public charge due to causes existing before he arrived.

2 Although the relevant time periods of the assessments have grown, this scheme

3 generally remains in place today.

4

The 1891 Act made a notable change to the law by adding the category “pauper,”

5 and including the term pauper with “persons likely to become a public charge” to form a

6 single entry in an expanded list of excluded categories of people.

7

An early case interpreting the act considered whether “the act of 1891 confers

8 upon the inspection officer power to detain and send back an alien immigrant as being a

9 person liable to become a public charge, in the absence of any evidence whatever

10 tending to establish that fact.” In re Feinknopf, 47 F. 447, 448 (E.D.N.Y. 1891). Although

11 it did not define the term “public charge” in the abstract, the court provided an explanation

12 given the facts before it that essentially laid out a totality-of-the-circumstances test. It

13 held that “[o]f course” the following facts, “if believed, would not warrant the conclusion

14 that the petitioner was a person likely to become a public charge,” and that the case is

15 “devoid of any evidence whatever of any fact upon which to base a determination that the

16 petitioner is likely to become a public charge”:

17

the petitioner is 40 years old; that he is a native of Austria; that

he is a cabinet-maker by trade, and has exercised that trade for

18

25 years; that he has no family; that he has baggage with him,

worth $20, and 50 cents in cash; that he is a man who can find

19

employment in his trade, and is willing to exercise the same. . . .

[I]n addition, that the immigrant has not been an inmate of an

20

almshouse, and has not received public aid or support, and has

not been convicted of crime.

21

22 Id. at 447–48. A fair reading suggests that each of the enumerated facts could be

23 relevant to predicting whether someone is likely to become a public charge.

24

A subsequent court provided even more guidance. In United States v. Lipkis, 56

25 F. 427 (S.D.N.Y. 1893), a man had arrived in America before his wife and child. The wife

26 and child were required to pay a bond because the superintendent of immigration

27 deemed them “likely to become a public charge” based on “the poverty and character of

28 the husband,” whose residence gave the appearance of “extreme poverty.” Id. at 427. 21

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1 However, that poverty alone did not mean he or the family was a public charge—rather, it

2 meant the family was likely to become a public charge. “About six months after the

3 arrival of the mother she became insane, and was sent to the public insane asylum of the

4 city under the direction of the commissioners of charities and correction, where only poor

5 persons unable to pay for treatment are received, and she was there attended to for a

6 considerable period at the expense of the municipality.” Id. at 428. Thus, the mother

7 became a public charge only when she was committed to the public insane asylum with

8 “no effort to provide for her at his [the husband’s] own expense[.]” Id.

9

But the court did not require commitment to an institution to make one a public

10 charge. It reasoned in dicta that the family’s financial condition generally subjected the

11 family to the risk of becoming “a public charge under the ordinary liabilities to sickness, or

12 as soon as any other additional charges arose beyond the barest needs of existence. . . .

13 The liability of his family to become a public charge through any of the ordinary

14 contingencies of life existed when the bond was taken, because of his poverty and

15 inefficiency.” Id. So, a number of different financial shocks could have rendered the

16 family a public charge.

17

The court’s analysis drew a distinction between being a public charge (in this case,

18 someone committed to an insane asylum with no effort to cover the expense), and

19 someone likely to become a public charge (in this case, someone who can pay for “the

20 barest needs of existence,” yet whom an extreme illness could ruin).

21

The parties cite to state court decisions published during this time using the term

22 public charge, which are informative of what the term generally meant at the time. Those

23 opinions address the duration of benefits that render one a public charge rather than the

24 quantum, and they tend to suggest that temporary relief did not make one a public charge

25 as the term was understood at the time. However, they do not address whether longer-

26 term receipt of a small amount of public benefits qualifies one as a public charge (as the

27 Rule would do). See Yeatman v. King, 2 N.D. 421 (1892) (state loaning seed grain to

28 farmer using the general tax fund, with obligation of repayment, is designed to prevent

22

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1 farmers “from becoming a public charge by affording them temporary relief”); Cicero v.

2 Falconberry, 14 Ind. App. 237 (1895) (“The mere fact that a person may occasionally

3 obtain assistance from the county does not necessarily make such person a pauper or a

4 public charge.”).10

5

Following the 1891 Act, two points are relatively clear. First, reaffirming the best

6 interpretation of the 1882 Act, the term was not used at the time to include short-term or

7 temporary relief from the state, as the case law continued to demonstrate. Second,

8 Lipkis could be read to support either of two non-controversial points: either state-funded

9 institutionalization constitutes becoming a public charge, or state-funded

10 institutionalization with “no effort” to pay the expense after being billed does so. Simply

11 being able to pay for the barest needs of existence and nothing more does not render

12 one a public charge (although it may make one likely to become a public charge). A third

13 point begins to materialize in the case law, which is that absent some particularly-

14 identified negative factor, an employable individual is not a public charge. E.g., In re

15 Feinknopf, 47 F. at 447–48 (40-year-old man willing to exercise his trade); Lipkis, 56 F. at

16 428 (notwithstanding poverty, working man’s family is not a public charge until financial

17 calamity strikes); Yeatman, 2 N.D. at 421 (public aid to working farmer).

18

3. 1903

19

In 1903, Congress passed a revised version of the act. That amended statute

20 provided, in part:

21

That the following classes of aliens shall be excluded from

admission into the United States: All idiots, insane persons,

22

epileptics, and persons who have been insane within five years

previous; persons who have had two or more attacks of insanity

23

at any time previously; paupers; persons likely to become a

public charge; professional beggars; persons afflicted with a

24

loathsome or with a dangerous contagious disease; persons

who have been convicted of a felony or other crime or

25

26 10 The parties also cite Edenburg Borough Poor Dist. v. Strattanville Borough Poor Dist.,

27

5 Pa. Super. 516, 528 (1897), but that case concerns an individual who appears to have formally registered as a pauper by seeking public assistance under state or local law. It

28

does not concern any immigration statutes, nor does the opinion use the word “charge” or the phrase “public charge.”

23

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misdemeanor involving moral turpitude; polygamists;

1

anarchists, or . . . .”

2 An Act to Regulate the Immigration of Aliens Into the United States, 32 Stat. 1213,

3 Chap. 1012 § 2 (1903).

4

This change separated out “paupers” from “persons likely to become a public

5 charge,” which the previous act had grouped together as a single item in the list.

6

The 1903 amendment also provided that any alien who “shall be found a public

7 charge . . . from causes existing prior to landing, shall be deported . . . at any time within

8 two years after arrival[.]” Id. § 20.

9

4. 1907

10

In 1907, Congress passed a revised version of the act. That amended statute

11 provided, in part:

12

That the following classes of aliens shall be excluded from

admission into the United States: All idiots, imbeciles, feeble-

13

minded persons, epileptics, insane persons, and persons who

have been insane within five years previous; persons who have

14

had two or more attacks of insanity at any time previously;

paupers; persons likely to become a public charge;

15

professional beggars; persons afflicted with tuberculosis or with

a loathsome or dangerous contagious disease; persons not

16

comprehended within any of the foregoing excluded classes

who are . . . mentally or physically defective, such mental or

17

physical defect being of a nature which may affect the ability of

such alien to earn a living; persons who have been convicted

18

of or admit having committed a felony or other crime or

misdemeanor involving moral turpitude; polygamists, or . . . .” 19

An Act to Regulate the Immigration of Aliens Into the United States, 34 Stat. 898, Chap.

20

1134 § 2 (1907).

21

Nothing relevant to the present action appears to have been changed by this

22

revision.11

23

5. 1910

24

In 1910, Congress amended the 1907 act. The new statute provided, in part:

25

26

27

11 The only notable change is the introduction of an exclusion for individuals not otherwise captured by the categories who cannot earn a living based on mental or physical defect.

28

That suggests that earlier-listed categories also include such people, but not all such people.

24

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That the following classes of aliens shall be excluded from

1

admission into the United States: All idiots, imbeciles, feeble-

minded persons, epileptics, insane persons, and persons who

2

have been insane within five years previous; persons who have

had two or more attacks of insanity at any time previously;

3

paupers; persons likely to become a public charge;

professional beggars; persons afflicted with tuberculosis or with

4

a loathsome or dangerous contagious disease; persons not

comprehended within any of the foregoing excluded classes

5

who are . . . mentally or physically defective, such mental or

physical defect being of a nature which may affect the ability of

6

such alien to earn a living; persons who have been convicted

of or admit having committed a felony or other crime or

7

misdemeanor involving moral turpitude; polygamists, or . . . .”

8 An Act to Amend an Act entitled An Act to Regulate the Immigration of Aliens Into the

9 United States, 36 Stat. 263, Chap. 128 § 2 (1910).

10

Nothing relevant to the present action appears to have been changed by this

11 revision.

12

In 1915, the Supreme Court addressed the 1910 act in Gegiow v. Uhl, 239 U.S. 3

13 (1915). “The single question” in that case was “whether an alien can be declared likely to

14 become a public charge on the ground that the labor market in the city of his

15 immediate destination is overstocked.” Id. at 9–10. The immigration commissioners in

16 that action determined that the immigrants were “bound for Portland, Oregon, where the

17 reports of industrial conditions show that it would be impossible for these aliens to obtain

18 employment[.]” Id. at 8.

19

The court held that “[t]he statute deals with admission to the United States, not to

20 Portland . . . . It would be an amazing claim of power if commissioners decided not to

21 admit aliens because the labor market of the United States was overstocked.” Id. at 10.

22 Because the immigration authorities could not consider labor conditions in a single

23 location to determine whether immigrants would be able to obtain employment, the

24 factual findings that the immigrants could not find work in Portland was insufficient to

25 support a determination that they were likely to become public charges.

26

The court also reasoned that, because the “public charge” ground for exclusion

27 was “mentioned between paupers and professional beggars, and along with idiots,

28 persons dangerously diseased, persons certified by the examining surgeon to have a

25

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1 mental or physical defect of a nature to affect their ability to earn a living,” the term should

2 be construed as similar with the rest. Id. Under that construction, the court held that

3 those likely to become public charges “are to be excluded on the ground of permanent

4 personal objections accompanying them irrespective of local conditions[.]” Id.12 That

5 is, the court focused on an alien’s general ability and willingness to work and earn a

6 living, rather than the particular wages or labor conditions that existed in the alien’s

7 destination.

8

A court in 1916 considered “whether the fact that petitioner entered the United

9 States as a gambler, and as one having no other permanent means of support, actual or

10 contemplated, makes him a person ‘likely to become a public charge’ within the meaning

11 of the Immigration Act.” Lam Fung Yen v. Frick, 233 F. 393, 396 (6th Cir. 1916):

12

It seems clear that the term ‘persons likely to become a public

charge’ is not limited to paupers or those liable to become such;

13

‘paupers‘ are mentioned as in a separate class. In United

States v. Williams (D.C.) 175 Fed. 274, 275, the term ‘persons

14

likely to become a public charge‘ is construed as including, ‘not

only those persons who through misfortune cannot be

15

self-supporting, but also those who will not undertake

honest pursuits, and who are likely to become periodically

16

the inmates of prisons.’ We think this a reasonable

construction. . . . Inmates of jails and prisons are for the time

17

being public charges, and we think it open to conclusion by

reasonable minds that those who will not work for a living, but

18

rely for that purpose upon gambling, are more likely than

citizens following the ordinary pursuits of industry to become,

19

at least intermittently, public charges.

20 Id. at 396–97 (emphasis added).

21

The court reasoned that because the alien was a gambler and gambling is

22 regarded “within the domain of police supervision and public security,” the petitioner is

23 reasonably likely to become periodically an inmate of a prison. Id. at 397. Under the

24 court’s reasoning, someone in a prison is a public charge, akin to someone in an

25 almshouse or insane asylum. Id.; see also United States v. Williams, 175 F. 274, 275

26

27

12 The Gegiow opinion was subject to some skepticism following a later amendment to the statute, but the Ninth Circuit subsequently held that its reasoning remained

28

controlling. See Ex parte Hosaye Sakaguchi, 277 F. 913 (9th Cir. 1922); see also Ex parte Mitchell, 256 F. 229 (N.D.N.Y. 1919).

26

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1 (S.D.N.Y. 1910) (“They are surely public charges, at least during the term of their

2 incarceration.”).

3

In 1917, the Second Circuit relied on Gegiow’s statutory analysis when deciding a

4 case under the 1910 statute. Howe v. United States, 247 F. 292 (2d Cir. 1917). In

5 Howe, a Canadian who had allegedly “drawn a check . . . which proved bad,” among

6 other things, entered the United States, and an immigration inspector “believed him guilty

7 of dishonest practice in Canada.” Id. at 293–94. Because the plaintiff had not admitted

8 to or been convicted of a felony, the provision excluding criminals did not apply to him.

9 The court reasoned that (1) the term “public charge” needed to be read in context of its

10 position in the statute’s list, and (2) it cannot be interpreted to overlap with other items in

11 the list (e.g., idiots, imbeciles, insane persons, criminals). As such, “[i]f the words

12 covered jails, hospitals, and insane asylums, several of the other categories of exclusion

13 would seem to be unnecessary.” Id. at 294. Instead, “Congress meant the act to exclude

14 persons who were likely to become occupants of almshouses for want of means with

15 which to support themselves in the future.” Id. The Howe court provided a very specific,

16 restrictive, and clear definition of the term. This also demonstrates an early split in the

17 case law as to whether prison inmates are considered public charges.

18

By 1917, the Supreme Court, the Second Circuit, and the Sixth Circuit had all

19 published opinions construing the term as used in the 1910 act. These are precisely the

20 sorts of constructions Congress is presumed knowledgeable of when reenacting statutory

21 language. See Forest Grove, 557 U.S. at 239–40. The Supreme Court held that

22 predicting whether someone will become a public charge requires consideration of

23 “permanent personal objections accompanying them irrespective of local conditions[.]”

24 Gegiow, 239 U.S. at 10. The two Circuit decisions are more difficult to reconcile. First,

25 they directly contradicted one another with respect to whether jail inmates were public

26 charges. Second, Howe broke with the weight of prior authority in holding that the term

27 was limited to those occupying almshouses for want of a means of support.

28

6. 1917

27

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1

In 1917, Congress amended the Act. That amended statute provided, in part:

2

That the following classes of aliens shall be excluded from

admission into the United States: All idiots, imbeciles, feeble-

3

minded persons, epileptics, insane persons; persons who have

had one or more attacks of insanity at any time previously;

4

persons of constitutional psychopathic inferiority; persons with

chronic alcoholism; paupers; professional beggars; vagrants;

5

persons afflicted with tuberculosis in any form or with a

loathsome or dangerous contagious disease; persons not

6

comprehended within any of the foregoing excluded classes

who are . . . mentally or physically defective, such physical

7

defect being of a nature which may affect the ability of such

alien to earn a living; persons who have been convicted of or

8

admit having committed a felony or other crime or

misdemeanor involving moral turpitude; polygamists, or . . . . ;

9

persons likely to become a public charge . . . .”

10 An Act to Regulate the Immigration of Aliens to, and the Residence of Aliens in, the

11 United States, 39 Stat. 874, Chap. 29 § 3 (1917).

12

The statute also provided for the deportability of “any alien who within five years

13 after entry becomes a public charge from causes not affirmatively shown to have arisen

14 subsequent to landing[.]” Id. § 19.

15

The “public charge” language remains unchanged, although moved within the list.

16 The Congressional Record suggests that Congress intentionally moved the category of

17 “persons likely to become a public charge” later in the list in response to Gegiow. See 70

18 Cong. Rec. 3560 (1929) (“persons likely to become a public charge (this clause excluding

19 aliens on the ground likely to become a public charge has been shifted from its position in

20 section 2 of the immigration act of 1907 to its present position in section 3 of this act in

21 order to indicate the intention of Congress that aliens shall be excluded upon said ground

22 for economic as well as other reasons and with a view to overcoming the decision of the

23 Supreme Court in Gegiow v. Uhl, 239 U. S. 3”); see also 80 Cong. Rec. 5829 (1936)

24 (same).

25

A district court in 1919 reasoned that although the exact same phrase was shifted

26 within the list, “I am unable to see that this change of location of these words in the act

27 changes the meaning that is to be given them. A ‘person likely to become a public

28 charge’ is one who for some cause or reason appears to be about to become a charge 28

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1 on the public, one who is to be supported at public expense, by reason of poverty,

2 insanity and poverty, disease and poverty, idiocy and poverty, or, it might be, by reason

3 of having committed a crime which, on conviction, would be followed by imprisonment.”

4 Ex parte Mitchell, 256 F. 229, 230 (N.D.N.Y. 1919). In that case, there was “no evidence

5 whatever that the alien at any time has relied in any degree on the charity of others,” but

6 rather the alien “is able to earn her own living and always has done so[.]” Id.

7

The court then stated that mere speculation about the possibility of becoming a

8 public charge does not make one likely to become a public charge: “The alien may

9 become sick; she may lose her house by fire; she may lose her personal property by bad

10 investments. All this is possible, but not probable. There is no claim that this alien is

11 suffering, or that she has suffered at any time, from any mental or physical defect. It is

12 not claimed this alien has been convicted, or even charged with the commission, of any

13 crime, or that she came to the United States, or is in the United States, for any immoral or

14 improper purpose.” Id. at 231.

15

The Ninth Circuit agreed in 1922, holding that the 1917 Amendment’s movement

16 of the “public charge” exclusion “does not change the meaning that should be given” the

17 exclusion. Ex parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir. 1922). The court

18 recognized the legislative change and that Gegiow’s reliance on the phrase’s relative

19 position in the statute was compromised, yet it held:

20

Although in the act of February 5, 1917, under which the

present case is to be determined, the location of the words

21

‘persons likely to become a public charge‘ is changed, we agree

with Judge Ray in Ex parte Mitchell (D.C.) 256 Fed. 229, that

22

this change of location of the words does not change the

meaning that should be given them, and that it is still to be held

23

that a person ‘likely to become a public charge’ is one who,

by reason of poverty, insanity, or disease or disability, will

24

probably become a charge on the public.

25 Id. (emphasis added).13

26

27

13 In 1923 a district court in Washington state did not cite these precedents and held instead that Congress’s shift was an effective modification in response to Gegiow. Ex

28

parte Horn, 292 F. 455 (W.D. Wash. 1923). Interpreting the phrase anew based on its plain meaning, the court reasoned that “a public charge” is “a person committed to the

29

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1

A 1921 Second Circuit opinion relying on Howe and Ex parte Mitchell held that “A

2 person likely to become a public charge is one whom it may be necessary to support at

3 public expense by reason of poverty, insanity and poverty, disease and poverty, idiocy

4 and poverty. We think that the finding by the administrative authorities, showing a

5 physical defect of a nature that may affect the ability of the relator and appellee to earn a

6 living, is sufficient ground for exclusion. His physical condition, together with his financial

7 condition, having but $100 with him, justified the conclusion of the administrative

8 authorities in finding that he and his children were aliens likely to become public

9 charges.” Wallis v. U.S. ex rel. Mannara, 273 F. 509, 511 (2d Cir. 1921) (citation

10 omitted).

11

A number of courts around this time also held that imprisonment was one way to

12 become a public charge. E.g., Ex parte Fragoso, 11 F.2d 988, 989 (S.D. Cal. 1926)

13 (“The fact is this petitioner did become a public charge. He was confined in a jail for a

14 period of nine months.”); U.S. ex rel. Lehtola v. Magie, 47 F.2d 768, 770 (D. Minn. 1931)

15 (noting a circuit split as to whether “dependency rather than imprisonment” is grounds for

16 finding a public charge); Ex parte Horn, 292 F. 455, 458 (W.D. Wash. 1923).

17

In 1933, the third edition of Black’s Law Dictionary was the first to define “public

18 charge.” The definition relied upon many of the above-cited cases, so for that reason it is

19 derivative of and less probative than those cases themselves. Nevertheless, the

20 definition is instructive. It defined the term as: “A person whom it is necessary to support

21 at public expense by reason of poverty, insanity and poverty, disease and poverty, or

22 idiocy and poverty. . . . As used in [the 1917 Act], one who produces a money charge on,

23 or an expense to, the public for support and care.” See Black’s Law Dictionary 311 (3d

24 Ed. 1933). The term includes paupers as well as those who will not undertake honest

25 pursuits or who are likely to go to prison.

26

In 1948, the Board of Immigration Appeals (“BIA”) issued an order, which the

27

28

custody of a department of the government by due course of law,” and that committing someone to prison makes him a public charge. Id. at 457.

30

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1 acting Attorney General thereafter issued an order approving. The order set out a very

2 explicit test for the term “public charge” as used elsewhere in the act, which concerned

3 deportation proceedings of aliens who are later determined to have actually become a

4 public charge during their time in the country. Matter of B-, 3 I. & N. Dec. 323 (A.G.

5 1948).

6

When interpreting the term as used in the deportation context, the BIA set out a 3-

7 part test requiring (1) an individualized bill for charges incurred, that is (2) presented to

8 the alien (or a family member) by the government, and (3) which the alien (or family

9 member) fails to pay.

10

the following test must be applied to determine whether an alien

has become a public charge within the reach of the 1917 act:

11

(1) The State or other governing body must, by appropriate law,

impose a charge for the services rendered to the alien. In other

12

words, the State must have a cause of action in contract against

either the person taking advantage of the State services or

13

other designated relatives or friends. If there is no charge

made, and if the State does not have a cause of action, the

14

alien cannot be said to be a public charge. (2) The authorities

must make demand for payment of the charges upon those

15

persons made liable under State law. And (3) there must be a

failure to pay for the charges. If there is a failure to pay either

16

because of lack of demand or because the State authorities do

not perform their duty to collect the charges, the alien cannot

17

be said to have become a public charge.

18 Id. at 326 (footnote omitted).

19

The BIA also reasoned that the same definition would apply to the identical term

20 used earlier in the statute with respect to predicting whether an alien is likely to become a

21 public charge—i.e., the provision at issue in the present action:

22

First, we wish to make the following preliminary observation for

the purpose of clarifying the issue. The acceptance by an alien

23

of services provided by a State or by a subdivision of a State to

its residents, services for which no specific charge is made,

24

does not in and of itself make the alien a public charge within

the meaning of the 1917 act. To illustrate, an alien who

25

participates, without cost to him, in an adult education program

sponsored by the State does not become a public charge.

26

Similiarly [sic] with respect to an alien child who attends public

school, or alien child who takes advantage of the free-lunch

27

program offered by schools. We could go on ad

infinitum setting forth the countless municipal and State

28

services which are provided to all residents, alien and citizen

31

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alike, without specific charge of the municipality or the State,

1

and which are paid out of the general tax fund. The fact that

the State or the municipality pays for the services accepted by

2

the alien is not, then, by itself, the test of whether the alien has

become a public charge. . . . [I]f it were to be held that all aliens

3

became public charges by accepting such services, such a

holding would necessarily result in making aliens seeking

4

admission to the United States excludable under that clause of

section 3 of the act of February 5, 1917, which bars aliens likely

5

to become public charges from entering the United States,

provided it were shown the alien would accept the free

6

municipal and State services.

7 Id. at 324–25 & n.1.

8

District courts had independently adopted the same meaning under the 1917 Act.

9 E.g., Ex parte Orzechowska, 23 F. Supp. 428, 429 (D. Or. 1938) (individual not a public

10 charge so long as they will “pay the full amount of the cost of keeping the girl at the

11 Oregon State Hospital”); Ex parte Kichmiriantz, 283 F. 697, 698 (N.D. Cal. 1922) (same).

12

This three-part test is still used for determining whether to deport those who in fact

13 become public charges currently, and DHS proposes to continue doing is in the Rule.

14

Prior to the 1952 Act’s passage, at least one principle had seemingly coalesced in

15 the case law. The reasoning in Gegiow was reaffirmed, and multiple circuits (also

16 recognized by Black’s Law Dictionary) agreed that someone likely to become a public

17 charge is one whom it may be necessary to support at public expense by reason of

18 poverty, insanity and poverty, disease and poverty, or idiocy and poverty. Although that

19 oft-used definition (or a close derivative) is not particularly descriptive as to what quantum

20 of support qualifies as “necessary to support” someone at public expense, it reaffirms the

21 principle expressed in Gegiow and prior cases that the inquiry is focused on the

22 individual’s inherent ability to support himself. This definition also accords with prior

23 interpretations generally finding that, absent some particularly-identified negative factor,

24 those who appear generally capable and willing to work are not likely to become public

25 charges. And unlike the Howe case, it allows reading the definition of public charge in

26 light of the surrounding categories of excluded persons, such that someone who is

27 excluded due to his disease alone may also be excluded because his disease, in

28 combination with another factor like poverty, is likely to render him a public charge. This

32

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1 remains in line with other historically-supported, consistent principles described above,

2 namely that temporary assistance does not render one a public charge and that actual

3 incursion of debt to the state and refusal to pay could render one a public charge.

4

The Attorney General’s order in 1948 for the first time offered a single, clear

5 definition of the term “public charge” to be applied consistently throughout the Act. And it

6 also specifically ruled that acceptance of publicly-funded services “for which no specific

7 charge is made” does not make one a public charge. The three-part test requiring

8 presentation of a bill and inability or refusal to pay was certainly in accordance with a line

9 of precedential caselaw, but it was by no means the only or even dominant line at that

10 time. Nevertheless, this Attorney-General-issued order was controlling as administrative

11 law between its issuance in 1948 and at least Congress’s next codification of the

12 immigration statutes in 1952.

13

7. 1952

14

In 1952, Congress again revised the laws relating to immigration. That revised

15 statute provided, in part:

16

Except as otherwise provided in this Act, the following classes

of aliens shall be ineligible to receive visas and shall be

17

excluded from admission into the United States:

(1) Aliens who are feeble-minded;

18

(2) Aliens who are insane;

(3) Aliens who have had one or more attacks of insanity;

19

. . .

(7) Aliens not comprehended within any of the foregoing

20

classes . . . having a physical defect, disease, or disability . . .

to be of such a nature that it may affect the ability of the alien

21

to earn a living, unless the alien affirmatively establishes that

he will not have to earn a living;

22

(8) Aliens who are paupers, professional beggars, or vagrants;

. . .

23

(15) Aliens who, in the opinion of the consular officer at the time

of application for a visa, or in the opinion of the Attorney

24

General at the time of application for admission, are likely at

any time to become public charges”

25

26 An Act to Revise the Laws Relating to Immigration, Naturalization, and Nationality; and

27 for Other Purposes, 66 Stat. 163, 183, Title 2, Chap. 2 (“1952 Act”) § 212 (1952).

28

The 1952 Act also provided for deportation of any alien who, “in the opinion of the

33

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1 Attorney General, has within five years after entry become a public charge from causes

2 not affirmatively shown to have arisen after entry[.]” Id., Chap. 5 § 241(a)(8).

3

The changes appear to be relatively minor for the purposes of this dispute.

4 Notably, Congress added the phrase “at any time” to specify the scope of time the public

5 charge determination is meant to consider. But no alteration to the phrase “public

6 charge” appears in the statute.

7

The 1951 edition of Black’s Law Dictionary, like the 3rd edition in 1933, assembled

8 its definition based on precedent discussed above:

9

A person whom it is necessary to support at public expense by

reason of poverty, insanity and poverty, or idiocy and poverty.

10

As used in [the 1917 Act] . . ., one who produces a money

charge on, or an expense to, the public for support and care.

11

As so used, the term is not limited to paupers or those liable to

become such, but includes those who will not undertake honest

12

pursuits, or who are likely to become periodically the inmates

of prison.

13

14 Charge, Public Charge, Black’s Law Dictionary (4th ed. 1951) (citations omitted).

15

BIA dispositions following the passage of the 1952 Act addressed the term. One

16 such disposition surveyed caselaw interpreting the term and held “the statute requires

17 more than a showing of a possibility that the alien will require public support. Some

18 specific circumstance, such as mental or physical disability, advanced age, or other fact

19 reasonably tending to show that the burden of supporting the alien is likely to be cast on

20 the public, must be present. A healthy person in the prime of life cannot ordinarily

21 be considered likely to become a public charge, especially where he has friends or

22 relatives in the United States who have indicated their ability and willingness to

23 come to his assistance in case of emergency.” Matter of Martinez-Lopez, 10 I. & N.

24 Dec. 409, 421–22 (BIA 1962) (emphasis added) (collecting cases).

25

In that case, the agency held that the individual at issue was not likely to become a

26 public charge given his characteristics, which essentially showed he was able to perform

27 honest work:

28

When respondent applied for a visa he was 22 years of age.

34

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He was sound of body and had about ten years of farming

1

experience. He had no specialized training, but had five years

of schooling and apparently planned to seek work for which he

2

was qualified. He spoke no English, but this was no handicap

for he would work among people who spoke Spanish. He had

3

about $50 in assets. He had a brother gainfully employed in the

United States and he had other close relations who were

4

interested in his welfare and who worked to bring him to the

United States. The brother was making $85 a week in

5

permanent employment; he was unmarried; he had been

sending money to his family in Mexico, and he was interested

6

in helping his brother. Respondent had previous experience in

the United States, having spent about three months here as a

7

contract worker. At that time he worked both in the fields and in

a cannery. His services appear to have been satisfactory for he

8

was retained here until his contract was completed.

Respondent had no criminal record.

9

10 Id. at 411.

11

A 1974 BIA decision emphasized that the public charge determination must

12 consider the totality of the circumstances, and that prior welfare use alone cannot be

13 determinative. Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) (“The respondent's

14 reliance on welfare for support is a condition which she herself can remedy.”).

15

Another 1974 BIA decision confused matters. Matter of Harutunian, 14 I. & N.

16 Dec. 583, 584 (BIA 1974). The decision outlined “[t]he stages in decisional

17 interpretations of the deportation statute, culminating in Matter of B-":

18

1. The words “public charge” had their ordinary meaning, that

is to say, a money charge upon or an expense to the public for

19

support and care, the alien being destitute.

20

2. The alien had not yet become a public charge, even though

he personally was destitute and his care and support were

21

being paid for by public funds, if there existed close relatives,

ready, willing and able to pay the bill, but the appropriate

22

government agency had failed to submit any bill.

23

3. The alien had not become a public charge where the alien's

mother had offered to make reimbursement, but under state

24

law payment could not be accepted for maintenance and

treatment of the institutionalized alien. 25

4. The alien had not become a public charge where the

26

circumstances were like those described in 3, above, except

that no one had offered reimbursement. 27

28 Id. at 586 (citations omitted). 35

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1

However, it reasoned that the Attorney General’s opinion in Matter of B- “is not

2 necessarily controlling in relation to the provisions for exclusion.” Id. at 585. The BIA

3 reasoned that “[w]hile it may normally be assumed that identical words used in different

4 parts of the same statute are intended to have an identical meaning, this assumption

5 readily yields when the legislative intent requires variant meanings in different contexts.”

6 Id. at 586. The BIA then discussed legislative history in search of congressional intent.

7 Id. The decision notes that the Senate Judiciary Committee discussed that courts had

8 given different definitions to the term, and ultimately it decided not to define the term, “but

9 rather [decided] to establish the specific qualification that the determination of whether an

10 alien falls into that category rests within the discretion of the consular officers or the

11 Commissioner.” Id. at 588 (citing S. Rep. 1515, 81st Cong., 2d Sess., April 20, 1950, p.

12 349).

13

The BIA stated that the phrase “public charge” must be “strictly construed” in the

14 deportation context, but not in the exclusion context. Id. It then reasoned that the old-

15 age benefits at issue in the case were “individualized public support to the needy, as

16 distinguished from essentially supplementary benefits, directed to the general welfare of

17 the public as a whole.” Id. at 589. Even though the state would never ask for repayment

18 of those old-age benefits—and therefore they could not constitute assistance qualifying

19 one as a public charge under the Matter of B- test—the court reasoned that it would not

20 consider “the element of reimbursement” when determining whether someone is likely to

21 become a public charge. Id.

22

So, the BIA rejected the Matter of B- test and constructed alternate definitions for

23 the same term depending on whether the executive is predicting whether someone is

24 likely to become a public charge or deciding whether someone has already become a

25 public charge. “Therefore, in our opinion any alien who is incapable of earning a

26 livelihood, who does not have sufficient funds in the United States for his support, and

27 has no person in the United States willing and able to assure that he will not need public

28 support is excludable as likely to become a public charge whether or not the public

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1 support which will be available to him is reimbursable to the state.” Id. at 589–90.

2

These BIA decisions are useful to understand the administrative practices and

3 interpretations operating when Congress reenacted the same language. Although this

4 period saw confusion within the agency about the proper way to interpret the phrase as

5 used in different contexts, each of the discussed decisions support the now-consistent

6 theme that a healthy person in the prime of life who can work cannot be considered likely

7 to become a public charge, absent some particularly-identified circumstance evaluated

8 under a totality of the circumstances. E.g., Matter of Martinez-Lopez, 10 I. & N. Dec. at

9 422 (collecting cases); Matter of Harutunian, 14 I. & N. Dec. at 589 (“alien who is

10 incapable of earning a livelihood”); Matter of Perez, 15 I. & N. Dec. at 137 (totality of

11 circumstances).

12

8. 1987

13

In 1987, the INS issued a final rule, effective May 1, 1987, following notice and

14 comment. See Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16,205 (May 1,

15 1987). The rule implemented section 245A of the Immigration and Nationality Act as

16 amended by section 201 of the Immigration Reform and Control Act of 1986. Id. at

17 16,205. So, the 1987 rule concerned the term “public charge” as used elsewhere in the

18 INA, specifically for aliens adjusting their status to that of aliens lawfully admitted for

19 temporary residence. The “key issues” subject to comments “were the public charge and

20 special rule for determination of public charge[.]” 52 Fed. Reg. at 16,206.

21

That rule provided: “An applicant . . . is subject to the provisions of section

22 212(a)(15) of the Act relating to excludability of aliens likely to become public charges

23 unless the applicant demonstrates a history of employment in the United States

24 evidencing self-support without receipt of public cash assistance. . . . If the alien's

25 period(s) of residence in the United States include significant gaps in employment or if

26 there is reason to believe that the alien may have received public assistance while

27 employed, the alien may be required to provide proof that he or she has not received

28 public cash assistance.” 52 Fed. Reg. at 16,211.

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1

Essentially, this provision exempted aliens who had been working domestically

2 from the normal public charge analysis, so long as they could prove a work history and

3 that they had not relied on public cash assistance. The rule defined cash assistance to

4 exclude in-kind benefits. 52 Fed. Reg. at 16,209 (“‘Public cash assistance’ means

5 income or needs-based monetary assistance, to include but not limited to supplemental

6 security income, received by the alien or his or her immediate family members through

7 federal, state, or local programs designed to meet subsistence levels. It does not include

8 assistance in kind, such as food stamps, public housing, or other non-cash benefits, nor

9 does it include work-related compensation or certain types of medical assistance

10 (Medicare, Medicaid, emergency treatment, services to pregnant women or children

11 under 18 years of age, or treatment in the interest of public health).”).

12

This use of the term is somewhat of an aberration given that it essentially

13 concerned an exception to the statute at issue here—and it did not define the term.

14 However, it did reinforce the long-standing principle underlying the construction of the

15 term that, when considering whether someone should be admitted to the country, the

16 concept of “public charge” concerns primarily the prospect of gainful employment or

17 some other private source of support.

18

9. 1990

19

In 1990, Congress revised the laws relating to immigration. That revised statute

20 provided, in part:

21

Except as otherwise provided in this Act, the following

describes classes of excludable aliens who are ineligible to

22

receive visas and who shall be excluded from admission into

the United States: 23

(1) Health-Related Grounds

24

. . .

(2) Criminal and Related Grounds

25

. . .

(3) Security and Related Grounds

26

. . .

(4) Public Charge.—Any alien who, in the opinion of the

27

consular officer at the time of application for a visa, or in the

opinion of the Attorney General at the time of application for

28

admission or adjustment of status, is likely at any time to

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become a public charge is excludable. 1

2 Immigration Act of 1990, 104 Stat. 4978, Title 6 § 601 (1990).

3

This version of the bill removed language referring to the feeble-minded, paupers,

4 professional beggars, and vagrants. There is a suggestion in the Congressional Record

5 that the removed terms were meant to be consolidated within the public charge category:

6

The bill removes some of the antiquated and unused

exclusions that have been in our law since the early 1900's,

7

such as the exclusions based on illiteracy, and the exclusions

for aliens who are "paupers, professional beggars, or

8

vagrants." These relics have been replaced by one generic

standard which exclude aliens who are "likely to become a

9

public charge."

10 136 Cong. Rec. 36797, 36844 (1990).

11

In 1990, Black’s Law Dictionary defined “public charge” as “an indigent. A person

12 whom it is necessary to support at public expense by reason of poverty alone or illness

13 and poverty.” Charge, Public Charge, Black’s Law Dictionary (6th ed. 1990).

14

Although a statutory term is not defined by reference to one preferred

15 interpretation memorialized in the Congressional Record, that interpretation is consistent

16 with the courts’ and executive’s general treatment of the term since Gegiow. That is,

17 following Gegiow and later cases applying it to the 1917 Act, courts had read the term

18 public charge in context of those surrounding terms rather than in exclusion of them, and

19 focused on the alien’s ability to work or otherwise provide for himself, which each of the

20 omitted surrounding terms also ultimately spoke to. But see Howe, 247 F. at 294.

21

10. 1996

22

In 1996, Congress again revised the laws relating to immigration. That revised

23 statute provided, in part:

24

(4) PUBLIC CHARGE.—

25

(A) IN GENERAL.—Any alien who, in the opinion of the

consular officer at the time of application for a visa, or in

26

the opinion of the Attorney General at the time of

application for admission or adjustment of status, is

27

likely at any time to become a public charge is

excludable.

28

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(B) FACTORS TO BE TAKEN INTO ACCOUNT.— 1

(i) In determining whether an alien is excludable

2

under this paragraph, the consular officer or the

Attorney General shall at a minimum consider the

3

alien's—

4

(I) age;

(II) health;

5

(III) family status;

(IV) assets, resources, and financial

6

status; and

(V) education and skills. 7

(ii) In addition to the factors under clause (i), the

8

consular officer or the Attorney General may also

consider any affidavit of support under section

9

213A for purposes of exclusion under this

paragraph. 10

11 Omnibus Consolidated Appropriations Act, 110 Stat. 3009, Title 5 § 531 (1996). This act

12 is often referred to as the Illegal Immigration Reform and Immigrant Responsibility Act

13 (“IIRIRA”). Elsewhere, the Act provided that “Any alien who, within five years after the

14 date of entry, has become a public charge from causes not affirmatively shown to have

15 arisen since entry is deportable.” 8 U.S.C. § 1251(a)(5) (effective April 24, 1996).

16

The revised law used the same relevant language as all previous versions—public

17 charge. However, the statute then listed five factors that Congress instructed must be

18 considered when determining whether an alien is likely to become a public charge, and it

19 identified another factor that “may also” be considered.

20

Contemporaneously, the Personal Responsibility and Work Opportunity

21 Reconciliation Act (“PRWORA”), Pub. L. 104-193, restricted most aliens from accessing

22 many public support programs for a period of time.

23

During legislative efforts that ultimately resulted in the IIRIRA, a group of

24 legislators proposed to define “public charge” with particularity in the statute to include

25 “any alien who receives benefits described in subparagraph (D) for an aggregate period

26 of at least 12 months” (or 36 months in the case of a battered spouse or child). 142

27 Cong. Rec. 24313, 24425 (1996). The benefits listed in subparagraph D (that would

28 qualify an alien as a public charge) included “means-tested public benefits,” but it’s not

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1 entirely clear what specific benefits that section refers to.14 That definition was not

2 enacted into law.

3

11. 1999

4

The INS attempted in 1999 to engage in rulemaking to guide immigration officers,

5 aliens, and the public in understanding the public charge determinations. No final rule

6 was ever issued. Instead, the agency published Field Guidance addressing the issue.

7 See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64

8 Fed. Reg. 28,689 (May 26, 1999) (the “1999 Field Guidance”).

9

The notice was published prior to final rulemaking because it was deemed

10 “necessary to help alleviate public confusion over the meaning of the term ‘public charge’

11 in immigration law and its relationship to the receipt of Federal, State, and local public

12 benefits.” 64 Fed. Reg. at 28,689. “The Department decided to publish a proposed rule

13 defining ‘public charge’ in order to reduce the negative public health consequences

14 generated by the existing confusion and to provide aliens with better guidance as to the

15 types of public benefits that will and will not be considered in public charge

16 determinations.” Id. The notice “both summarizes longstanding law with respect to

17 public charge and provides new guidance on public charge determinations in light of the

18 recent changes in law,” notably the “Illegal Immigration Reform and Immigrant

19 Responsibility Act of 1996 (IIRIRA) and welfare reform laws.” Id.

20

The notice proposed “that ‘public charge’ means an alien who has become (for

21 deportation purposes) or who is likely to become (for admission/adjustment purposes)

22 ‘primarily dependent on the government for subsistence, as demonstrated by either (i) the

23 receipt of public cash assistance for income maintenance or (ii) institutionalization for

24 long-term care at government expense.’ Institutionalization for short periods of

25 rehabilitation does not constitute such primary dependence.” Id.

26

27

14 The record refers to Section 213A(e)(1), which appears to have been codified at 8 U.S.C § 1183a(e), but that does not describe means-tested benefits. The currently-

28

operative version of 8 U.S. Code § 1183a(a)(1)(B) also appears to errantly refer to subsection (e) for a list of means-tested benefits, so this error is not unique.

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1

Following the implementation of that interpretation, “officers should not place any

2 weight on the receipt of non-cash public benefits (other than institutionalization) or the

3 receipt of cash benefits for purposes other than for income maintenance with respect to

4 determinations of admissibility or eligibility for adjustment on public charge grounds.” Id.

5

Summarizing current agency practice, the memo explained:

6

The standard for adjudicating inadmissibility under section

212(a)(4) has been developed in several Service, BIA, and

7

Attorney General decisions and has been codified in the

Service regulations implementing the legalization provisions of

8

the Immigration Reform and Control Act of 1986. These

decisions and regulations, and section 212(a)(4) itself, create a

9

“totality of the circumstances” test.

10

In determining whether an alien is likely to become a public

charge, Service officers should assess the financial

11

responsibility of the alien by examining the “totality of the alien's

circumstances at the time of his or her application * * * The

12

existence or absence of a particular factor should never be the

sole criterion for determining if an alien is likely to become a

13

public charge. The determination of financial responsibility

should be a prospective evaluation based on the alien's age,

14

health, family status, assets, resources and financial status,

education, and skills, among other factors. An alien may be

15

considered likely to become a public charge even if there is no

legal obligation to reimburse the benefit-granting agency for the

16

benefits or services received, in contrast to the standards for

deportation, discussed below.

17

18 Id. at 28,690 (footnotes omitted).

19

The 1999 Field Guidance then explained that the three-part test for paying back

20 public debt continues to apply, but only as an additional test on top of the totality of the

21 circumstances test for deportation decisions:

22

Repayment is relevant to the public charge inadmissibility

determination only in very limited circumstances. If at the time

23

of application for admission or adjustment of status the alien is

deportable on public charge grounds under section 237(a)(5)

24

of the INA due to an outstanding public debt for a cash benefit

or the costs of institutionalization, then the alien is inadmissible.

25

Only a debt that satisfies the three-part [Matter of B-] test under

section 237(a)(5), described below, will render an alien

26

deportable as a public charge and therefore ineligible for

admission or adjustment. If the debt is paid, then the alien will

27

no longer be inadmissible based on the debt, and the usual

totality of the circumstances test would apply.

28

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1 Id.

2

The Feld Guidance explained that a compelling reason to limit the public charge

3 definition to those receiving cash is that “certain federal, state, and local benefits are

4 increasingly being made available to families with incomes far above the poverty level,

5 reflecting broad public policy decisions about improving general public health and

6 nutrition, promoting education, and assisting working-poor families in the process of

7 becoming self-sufficient. Thus, participation in such non-cash programs is not evidence

8 of poverty or dependence.” Id. at 28,692

9

12. 2013

10

In 2013, the Senate voted down two amendments to a never-passed bill regarding

11 immigration. The first amendment proposed “expanding the criteria for ‘public charge,’

12 such that applicants would have to show they were not likely to qualify even for non-cash

13 employment supports such as Medicaid, the SNAP program, or the Children's Health

14 Insurance Program (CHIP). . . . [T]he amendment was rejected by voice vote.” S. Rep.

15 No. 113-40, at 42 (2013).

16

The second amendment “would have expanded the definition of ‘public charge’

17 such that people who received non-cash health benefits could not become legal

18 permanent residents. This amendment would also have denied entry to individuals

19 whom the Department of Homeland Security determines are likely to receive these types

20 of benefits in the future. The amendment was not agreed to by a voice vote.” S. Rep.

21 No. 113-40, at 63 (2013).

22

13. 2019—The Rule

23

On October 10, 2018, DHS published a Notice of Proposed Rulemaking in the

24 Federal Register. See 83 Fed. Reg. 51,114. The NPRM provided a 60-day public

25 comment period, during which 266,077 comments were collected. See 84 Fed. Reg. at

26 41,297. On August 14, 2019, DHS published the Rule in the Federal Register.

27

The Rule supersedes the 1999 Field Guidance’s definition of “public charge,”

28 establishing a new definition based on a minimum time threshold for the receipt of public

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1 benefits. Under the newly-proposed “12/36 standard,” a public charge is defined as an

2 individual who receives designated public benefits for more than 12 months in the

3 aggregate within a 36-month period, although a single month where multiple types of

4 benefits are received is counted as multiple months of receiving aid. 84 Fed. Reg. at

5 41,295. The “public benefits” included are extended by the Rule to include many non-

6 cash benefits, for example Supplemental Nutrition Assistance Program (“SNAP”), Section

7 8 Housing Programs, Medicaid, and Public Housing. Id. at 41,501. Receipt of two

8 categories of benefits in the same months counts as two months of receipt for benefits,

9 so some will qualify as public charges without receiving benefits for 12 months.

10 Moreover, the rule is agnostic to the value (or cost to the government) of the benefits. To

11 take a plausible example, someone receiving $182 over 36 months—or an average of

12 less than 17 cents a day—in SNAP benefits is a public charge under the Rule. See

13 Shing Decl. ¶ 17.

14

The Rule does not change the definition of public charge in the context of

15 deportability, described elsewhere in the INA. 84 Fed. Reg. at 41,295 (“This rule does

16 not interpret or change DHS’s implementation of the public charge ground of

17 deportability.”). Rather, DHS will continue to enforce the 1999 Field Guidance in the

18 deportation context. Id. at 41,304 (“DHS currently makes public charge determinations in

19 accordance with the 1999 Interim Field Guidance. . . . This guidance explains how the

20 agency determines . . . whether a person has become a public charge within five years of

21 entry”). The 1999 Field Guidance, which will continue to govern, provided that “the

22 definition of public charge is the same for both admission/adjustment and deportation,”

23 although “the standards applied to public charge adjudications in each context are

24 significantly different” because one is forward-looking and one is backward-looking. 64

25 Fed. Reg. at 28,689. As such, following the implementation of the Rule, “public charge”

26 will continue to be defined in the deportation context as “an alien who has become . . .

27 ‘primarily dependent on the government for subsistence, as demonstrated by either (i) the

28 receipt of public cash assistance for income maintenance or (ii) institutionalization for

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1 long-term care at government expense.’” Id. To assess whether an alien qualifies under

2 that definition in the deportability context, the 1999 Field Guidance prescribes the 3-part

3 test established in Matter of B-, 3 I. & N. Dec. 323.

4

So, the Rule proposes to simultaneously apply multiple definitions for the term

5 public charge. First, its new definition will be used to predict whether an alien is likely at

6 any time to become a public charge. Second, the 1999 Field Guidance’s “primary

7 dependence” definition is left unaltered in the deportation context, and it is evaluated

8 pursuant to the well-known 3-part Matter of B- test.

9

Each step in the Chevron analysis requires the court to consider the terms of the

10 statute in context. The court first looks to the statutory text, in light of prior agency and

11 judicial interpretation—as explained at length above, although the court notes that judicial

12 and agency interpretation following the most-recent 1996 revision is not particularly

13 relevant to understanding the meaning of the text as enacted in 1996. Cf. Sec'y of the

14 Interior v. California, 464 U.S. 312, 375 n.36 (1984) (the “view of a subsequent Congress

15 . . . is not without persuasive value”).

16

The analysis is also informed to some degree by what Congress decided not to

17 pass, in addition to what it specifically rejected. “Congress does not intend sub silentio to

18 enact statutory language that it has earlier discarded in favor of other language.”

19 Cardoza-Fonseca, 480 U.S. at 442–43; Albemarle Paper Co., 422 U.S. at 414 n.8

20 (rejecting construction of statute that would implement provision Conference Committee

21 rejected); Bob Jones Univ., 461 U.S. at 600–01 (interpretation of statute informed by the

22 fact that Congress had a “prolonged and acute awareness” of an established agency

23 interpretation of a statute, considered the precise issue, and rejected bills to overturn the

24 prevailing interpretation); see also Merrill Lynch, 456 U.S. at 381–82 (interpretation of

25 statute informed by the fact that Congress amended large portions of statute, but not

26 provision at issue).

27

Of particular relevance here, parts of Congress have explicitly and repeatedly

28 rejected efforts to define “public charge” to include those who receive certain in-kind

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1 benefits for a period of 12 months—efforts that are strikingly similar to the definition now

2 adopted for the first time by the executive in the Rule. E.g., 142 Cong. Rec. 24313,

3 24425 (1996); S. Rep. No. 113-40, at 42 (2013); S. Rep. No. 113-40, at 63 (2013).

4 Congress’s rejection in 1996 is particularly instructive. As described above, Congress at

5 that time considered a scheme similar to the Rule, wherein use of means-tested benefits

6 for 12 months would qualify one as a public charge. On September 24, 1996, the

7 conference committee recommended passage of a version of the bill with that definition.

8 See 142 Cong. Rec. 24389 (conference committee recommendation), 24425 (public

9 charge definition). President Clinton had previously praised the legislation generally, but

10 specifically criticized that bill’s disincentive to obtain public benefits. He called for

11 revision of the statute. He said “it still goes too far in denying legal immigrants access to

12 vital safety net programs which could jeopardize public health and safety. Some work

13 still needs to be done. I urge the Congress to move quickly to finalize and send me this

14 key legislation.” Statement on Senate Action on the “Immigration Control and Financial

15 Responsibility Act of 1996”, President William J. Clinton, Weekly Compilation of

16 Presidential Documents Volume 32, Issue 18 (May 6, 1996) at p. 783. On September 30,

17 1996, the bill was signed into law, following the removal of the definition of public charge

18 that included use of means-tested public benefits. This exchange, which deals with the

19 precise issue presented by this litigation, is particularly instructive not because of the

20 president’s words but because of Congress’s response to those words—it intentionally

21 considered and rejected a definition similar to what the Rule now proposes. Afterall it is

22 Congress, not the President, who is responsible for writing legislation.

23

Given the term’s long-standing focus on the individual’s ability and willingness to

24 work or otherwise support himself, and its longstanding allowance for short-term aid, and

25 the legislative history of the 1996 revision, it is likely that the Rule’s interpretation defining

26 anyone who receives any quantity of benefits for 12 months (or fewer) out of a floating

27 36-month window as a public charge is not a permissible or reasonable construction of

28 the statute. For example, defendants do not contest that someone receiving less than 50

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1 cents per day—which is a standard SNAP benefit amount for recipients at the higher end

2 of income eligibility, Shing Decl. ¶ 17—would be deemed a public charge under the Rule.

3 That could also be calculated as $182 over 36 months—or an average of less than 17

4 cents a day. At no point over the long history described above could that have qualified

5 one as a public charge, unless the bill for those charges was presented to the recipient

6 and he refused to pay. Moreover, the Rule’s double-counting of months where multiple

7 benefits are received raises serious questions with respect to whether the Rule

8 impermissibly considers temporary or short-term relief, receipt of which has never been

9 sufficient to qualify someone as a public charge (absent repayment, following

10 presentation of an invoice).

11

Deciding otherwise would put this court at odds with persuasive Supreme Court

12 and Ninth Circuit precedent. The Supreme Court has defined the term to allow exclusion

13 only “on the ground of permanent personal objections accompanying them [the excluded

14 aliens] irrespective of local conditions[.]” Gegiow, 239 U.S. at 10. In that case, “the

15 aliens came from a remote province of Russia. They knew no trade. They knew no

16 language but their own. Only one could read or write in his own language. They had

17 sums aggregating slightly more than $25 each. They were not employed, and had no

18 promise of employment. They were ticketed through to Portland, Or., where, owing to

19 depressed labor conditions, the prospect of their obtaining work ‘was most unfavorable.’”

20 Ex parte Hosaye Sakaguchi, 277 F. at 916 (citing Gegiow, 239 U.S. at 10). Still, they

21 were not likely to become public charges within the meaning of the statute. The Ninth

22 Circuit reaffirmed that definition following reorganization of the statute. Id. (“change of

23 location of the words does not change the meaning that should be given them”). Since

24 Gegiow and Ex parte Hosaye Sakaguchi, Congress has not altered the term “public

25 charge,” which the Ninth Circuit has defined standing alone, irrespective of its placement

26 or context within the list of excluded persons in the statute. The court therefore sees no

27 good reason to depart from those precedential opinions, which suggest that an able-

28 bodied, working-age individual who is willing to engage in honest work is not excludable

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1 based on a prediction that he will become a public charge unless a particular reason can

2 be articulated to exclude him. This reasoning does not allow for exclusion based on the

3 increasing generosity of society’s public assistance to provide for more than the barest

4 requirements of subsistence. Gegiow, in fact, explicitly precludes consideration of local

5 labor conditions.

6

The likely unreasonableness of the rule is further demonstrated by just how

7 expansive the definition is. The history of the term, evidenced by its repeated verbatim

8 reenactment, excluded those who were likely to become public charges based on

9 poverty, or idiocy and poverty, or disease and poverty, etc. But plaintiffs demonstrate

10 that in a single year, roughly a quarter U.S.-born citizens receive one or more benefits

11 used to define who is a public charge under the Rule. And plaintiffs demonstrate that,

12 over the course of their lifetimes, about 40% of U.S.-born citizens are expected to receive

13 one or more of those benefits. Although these figures do not indicate what percent of

14 U.S.-born citizens would actually be deemed public charges under the Rule (that would

15 require determining how many individuals receive multiple benefits per month, in addition

16 to how many months benefits are received over any 3-year period), it suggests that the

17 Rule is substantially outside the bounds of a reasonable interpretation of the statute.

18

With regard to plaintiffs’ claim that the Rule is not in accordance with law, for the

19 foregoing reasons, and given the above discussion of the term’s long-standing use and

20 evolution in the immigration statutes, this court finds that plaintiffs are likely to succeed on

21 the merits with respect to their claim that the Rule’s definition of public charge is

22 unreasonable and not based on a permissible construction of the statute, under the

23 second prong of the Chevron analysis.15 Alternatively, plaintiffs have raised at least

24 serious questions with respect to whether “the statute, read in context, unambiguously

25 forecloses” the precise question at issue, namely DHS’s expansive interpretation of the

26 term to include individuals willing and able work productively in the national economy,

27

28

15 For the same reasons that plaintiffs are likely to succeed on this question, they have undoubtedly raised serious questions with respect to it.

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1 under the first prong of the Chevron analysis. See Esquivel-Quintana v. Sessions, 137 S.

2 Ct. 1562, 1572 (2017); see also Whitman v. Am. Trucking Associations, 531 U.S. 457,

3 471 (2001) (finding a particular construction “unambiguously bar[red]” when “interpreted

4 in its statutory and historical context”).

5

b. Not in Accordance with Law—Rehabilitation Act

6

The Rehabilitation Act prohibits “any program or activity receiving federal financial

7 assistance” or “any program or activity conducted by any Executive agency,” from

8 excluding, denying benefits to, or discriminating against persons with disabilities. 29

9 U.S.C. § 794(a).

10

“To establish a violation of § 504 of the RA [Rehabilitation Act], a plaintiff must

11 show that (1) she is handicapped within the meaning of the RA; (2) she is otherwise

12 qualified for the benefit or services sought; (3) she was denied the benefit or services

13 solely by reason of her handicap; and (4) the program providing the benefit or services

14 receives federal financial assistance.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.

15 2002); 29 U.S.C. § 794(a) (“[n]o otherwise qualified individual with a disability . . . shall,

16 solely by reason of her or his disability, be . . . subjected to discrimination under . . . any

17 program or activity conducted by any Executive agency”).

18

The States argue that the Rule will exclude some individuals solely based on

19 disability because a disability will predictably be responsible for a number of negative

20 factors in some individuals: (1) a negative health factor because the Rule adopts a

21 definition of “health” that strongly overlaps with disability; (2) a negative factor if the

22 applicant lacks private insurance; and (3) a negative factor if the applicant has received

23 Medicaid for 12 of the last 36 months, even though use of Medicaid is common for the

24 disabled because it covers services that no other insurer provides.

25

Defendants first argue that the Rule’s multi-factor test means the Rehabilitation

26 Act is not violated because disability cannot be the “sole” determinative factor. Second,

27 they argue that even if the statutes are in conflict, a specific, later statutory command—

28 such as the INA’s requirement that the agency consider health—supersedes section

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1 504’s general proscription.

2

First, the Rehabilitation Act requires that a plaintiff show that a disabled person

3 was denied services “solely” by reason of her disability. The Rule does not deny any

4 alien admission into the United States, or adjustment of status, “solely by reason of”

5 disability. All covered aliens, disabled or not, are subject to the same inquiry: whether

6 they are likely to use one or more covered federal benefits for the specified period of

7 time. Even though a disability is likely to be an underlying cause of some individuals

8 qualifying for additional negative factors, it will not be the sole cause. As such, disability

9 is one non-dispositive factor.16

10

Second, the INA explicitly lists “health” as a factor that an officer “shall . . .

11 consider” in making a public charge determination. 8 U.S.C. § 1182(a)(4)(B)(i). “Health”

12 includes an alien’s disability and whatever impact the disability may have on the alien’s

13 expenses and ability to work. Congress, not the Rule, requires DHS to take this factor

14 into account, and the caselaw has long considered this factor. See, e.g., Knutzen v.

15 Eben Ezer Lutheran Hous. Ctr., 815 F.2d 1343, 1353 (10th Cir. 1987) (section 504 may

16 not “revoke or repeal . . . a much more specific statute . . . absent express language by

17 Congress”).

18

As such, plaintiffs have not demonstrated even serious questions going the merits

19 with respect to this claim.

20

c. Arbitrary and Capricious

21

Section 4 of the APA, 5 U.S.C. § 553, prescribes a three-step

procedure for so-called “notice-and-comment rulemaking.”

22

First, the agency must issue a “[g]eneral notice of proposed rule

making,” ordinarily by publication in the Federal

23

Register. § 553(b). Second, if “notice [is] required,” the agency

must “give interested persons an opportunity to participate in

24

25 16 Plaintiffs’ citation to Lovell is unavailing. They claim the case found a multi-factor test

26

violated the Act, “notwithstanding other factors” unrelated to disability. But in Lovell, defendants asked the court to look at a multifactored system, but the court declined and

27

instead looked at treatment of the disabled under a single program. It was “undisputed that disabled people who, but for their disability, were eligible for healthcare benefits from

28

the State under” that single program “were denied coverage because of the categorical exclusion of the disabled from” that program. Lovell, 303 F.3d at 1053.

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the rule making through submission of written data, views, or

1

arguments.” § 553(c). An agency must consider and respond

to significant comments received during the period for public

2

comment. Third, when the agency promulgates the final rule,

it must include in the rule's text “a concise general statement of

3

[its] basis and purpose.” § 553(c). Rules issued through the

notice-and-comment process are often referred to as

4

“legislative rules” because they have the “force and effect of

law.” Chrysler Corp. v. Brown, 441 U.S. 281 (1979). 5

Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1203 (2015) (citations omitted).

6

“‘[A]rbitrary and capricious’ review under the APA focuses on the reasonableness

7

of an agency’s decision-making processes.” CHW W. Bay v. Thompson, 246 F.3d 1218,

8

1223 (9th Cir. 2001). Agency action is invalid if the agency fails to give adequate

9

reasons for its decisions, fails to examine the relevant data, or offers no “rational

10

connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of

11

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Encino

12

Motorcars, 136 S. Ct. at 2125. A rule is arbitrary and capricious if the agency has

13

“entirely failed to consider an important aspect of the problem, offered an explanation for

14

its decision that runs counter to the evidence before the agency, or is so implausible that

15

it could not be ascribed to a difference in view or the product of agency expertise.” Id.

16

Agencies are required to “reflect upon the information contained in the record and

17

grapple with contrary evidence.” Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638

18

(D.C. Cir. 2017). Where “the agency has failed to ‘examine the relevant data’ or failed to

19

‘articulate a rational explanation for its actions,’” its decision is arbitrary and capricious.

20

Genuine Parts Co. v. EPA, 890 F.3d 304, 311–12 (D.C. Cir. 2018). And where an

21

agency is uncertain about the effects of agency action, it may not rely on “‘substantial

22

uncertainty’ as a justification for its actions.” Greater Yellowstone Coal., Inc. v. Servheen,

23

665 F.3d 1015, 1028 (9th Cir. 2011). Instead, it must “rationally explain why the

24

uncertainty” supports the chosen approach. Id. (“Otherwise, we might as well be

25

deferring to a coin flip.”). “[A]n internally inconsistent analysis is arbitrary and capricious.”

26

Nat'l Parks Conservation Ass'n v. E.P.A., 788 F.3d 1134, 1141 (9th Cir. 2015).

27

But “[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow

28

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1 and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs.

2 Ass’n, 463 U.S. at 43; San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581,

3 601 (9th Cir. 2014) (“Although our inquiry must be thorough, the standard of review is

4 highly deferential; the agency's decision is ‘entitled to a presumption of regularity,’ and

5 we may not substitute our judgment for that of the agency.”). An agency’s obligation to

6 respond to comments on a proposed rulemaking is “not ‘particularly demanding.’” Ass’n

7 of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 441–42 (D.C. Cir. 2012).

8 “[T]he agency’s response to public comments need only ‘enable [courts] to see what

9 major issues of policy were ventilated . . . and why the agency reacted to them as it did.’”

10 Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993).

11

Rule changes face a higher burden when departing from prior policy:

12

Agencies are free to change their existing policies as long as

they provide a reasoned explanation for the change. When an

13

agency changes its existing position, it need not always provide

a more detailed justification than what would suffice for a new

14

policy created on a blank slate. But the agency must at least

display awareness that it is changing position and show that

15

there are good reasons for the new policy. In explaining its

changed position, an agency must also be cognizant that

16

longstanding policies may have engendered serious reliance

interests that must be taken into account. In such cases it is

17

not that further justification is demanded by the mere fact of

policy change; but that a reasoned explanation is needed for

18

disregarding facts and circumstances that underlay or were

engendered by the prior policy. It follows that an unexplained

19

inconsistency in agency policy is a reason for holding an

interpretation to be an arbitrary and capricious change from

20

agency practice. An arbitrary and capricious regulation of this

sort is itself unlawful and receives no Chevron deference.

21

22 Encino Motorcars, 136 S. Ct. at 2125–26 (internal quotation marks and citations omitted);

23 accord F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (agency must

24 “provide a more detailed justification than what would suffice for a new policy created on

25 a blank slate . . . when, for example, its new policy rests upon factual findings that

26 contradict those which underlay its prior policy; or when its prior policy has engendered

27 serious reliance interests that must be taken into account”).

28

Plaintiffs raise numerous procedural challenges to the Rule. The court addresses

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1 them in two general categories. First, the court considers plaintiffs arguments that DHS

2 failed to adequately consider and address the Rule’s costs and benefits. Second, the

3 court considers plaintiffs’ remaining procedural challenges.

4

i. DHS Failed to Adequately Consider Costs and Benefits

5

Plaintiffs argue that DHS failed to consider costs and benefits in three ways. First,

6 DHS failed to adequately consider significant costs to local and state governments raised

7 in comments, as well as the related issue of DHS’s failure to consider evidence when

8 estimating disenrollment figures. Second, DHS failed to consider concerns about health

9 effects like disease outbreaks. Third, DHS acted impermissibly with respect to the

10 burden the I-944 form would impose.

11

Based on plaintiffs’ first and second arguments, discussed presently, this court

12 finds that they are likely to succeed on the merits with respect to their claim that the Rule

13 is arbitrary and capricious.17

14

A. Local and State Government Costs and

15

Disenrollment Rates

16

Plaintiffs argue that commenters documented the dangers to individuals and public

17 health generally that stem from disenrollment in public benefits, and explained that local

18 and state governments will face higher costs because of this disenrollment. See 84 Fed.

19 Reg. at 41,310-12 (explaining that “[m]any commenters particularly emphasized that

20 disenrollment or foregoing enrollment would be detrimental to the financial stability and

21 economy of communities, States, local organizations, hospitals, safety net providers,

22 foundations, and healthcare centers”); id. at 41,469–70; Case No. 19-cv-04717-PJH,

23 Dkt. 44, Exs. C–E (letters submitted in response to NPRM). Numerous comments

24 included specific cost calculations. See, e.g., 84 Fed. Reg. at 41,475 (citing specific cost

25 estimates from comments); Cho Decl., Ex. C at 22–23 (estimating losses to California at

26 $1.76 billion in revenue from federal government and 17,700 jobs), Ex. J at 11

27

28

17 For the same reasons that plaintiffs are likely to succeed on this claim, they have undoubtedly raised serious questions with respect to it.

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1 (estimating that the Rule would cost hospitals more than $17 billion in uncompensated

2 care), Ex. K at 5–7 (detailing expected costs to hospitals).

3

Plaintiffs relatedly argue that DHS under-estimated disenrollment figures and the

4 accompanying effects, including the effects on state and local governments.18 For

5 example, despite its concession that the Rule will cause members of mixed-status

6 households (i.e., those including U.S. citizens) to disenroll from benefits, 84 Fed. Reg. at

7 41,300, DHS refused to consider the costs associated with such disenrollment, stating:

8 “DHS believes that it would be unwarranted for U.S. citizens and aliens exempt from

9 public charge inadmissibility to disenroll from a public benefit program or forego

10 enrollment in response to this rule when such individuals are not subject to this rule.

11 DHS will not alter this rule to account for such unwarranted choices.” Id. at 41,313.

12

Defendants correctly argue that they are not required to quantify every potential

13 cost and benefit and precisely weigh them out. They respond to these challenges both in

14 the Rule and before the court with three essential points. First, DHS read the comments,

15 but the forward-looking economic impact to states, cities, hospitals, and others was too

16 difficult to assess. Second, with respect to the disenrollment of those who will not be

17 subject to a public charge assessment in the future, the Rule’s effect was too difficult to

18 assess. Third, even if DHS had assessed those costs, they would be outweighed by the

19 benefits of excluding aliens who would rely on public assistance, and of promoting self-

20 sufficiency of aliens already in the United States. Those benefits are in line with

21 Congressional statements of policy.

22

DHS was required to a certain extent to grapple with estimates and credible data

23

24 18 DHS argues that it’s 2.5% figure is not part of the regulatory analysis and cannot be

25

challenged because it was calculated pursuant to an executive order. The court disagrees. See Council of Parent Attorneys & Advocates, Inc. v. DeVos, 365 F. Supp. 3d

26

28, 54 n.11 (D.D.C. 2019) (“The government contended . . . that because its regulatory impact analysis was conducted pursuant to Executive Orders, it is not subject to judicial

27

review. . . . These arguments are contrary to D.C. Circuit precedent. Because the government relied on its cost-benefit analysis . . . a flaw in that analysis can render the

28 regulation arbitrary and capricious.”).

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1 explained in the comments, and in turn explain why DHS chose not to credit them. See

2 Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1068–69 (9th Cir. 2018) (finding

3 agency action arbitrary and capricious where the agency did not explain why it did not

4 credit available data that did not support its action). Defendants are correct that DHS

5 was not required to parse costs and benefits precisely. But to the extent the exact harms

6 are unknown or difficult to predict, that does not justify “disregarding the effect entirely.”

7 Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209, 1219 (D.C. Cir. 2004).

8

Here, even under the deferential APA analysis, DHS appears to have wholly failed

9 to engage with this entire category of comments. DHS failed to grapple with the Rule’s

10 predictable effects on local governments, and instead concluded that the harms—

11 whatever they may be—are an acceptable price to pay. At minimum, the APA requires

12 more than reading public comments and responding with a general statement that,

13 however correct the comments may be, the agency declines to consider the issues and

14 costs identified because doing so would contravene the government’s favored policy.

15

For example, under the heading “Increased Costs to Health Care Providers,

16 States, and Localities,” the government summarized the comments it was responding to:

17

Many commenters particularly emphasized that disenrollment

or foregoing enrollment would be detrimental to the financial

18

stability and economy of communities, States, local

organizations, hospitals, safety net providers, foundations, and

19

healthcare centers. Commenters offering estimates on the

number of people who would disenroll from Medicaid under the

20

proposed rule warned that the costs associated with the

resultant rise in uncompensated care would be borne by health

21

systems, hospitals, and insured patients.

22 84 Fed. Reg. at 41,312.

23 The government’s response, in part, was:

24

Response: With respect to the rule's potential “chilling effects”

or disenrollment impacts, DHS notes that (1) the rule's

25

overriding consideration, i.e., the Government's interest as set

forth in PRWORA, is a sufficient basis to move forward; (2) it is

26

difficult to predict the rule's disenrollment impacts with respect

to the regulated population, although DHS has attempted to do

27

so in the accompanying Final Regulatory Impact Analysis; and

(3) it is also difficult to predict the rule's disenrollment impacts

28

with respect to people who are not regulated by this rule,

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although, again, DHS has attempted to do so in the

1

accompanying Final Regulatory Impact Analysis.

2

First, as discussed above, this rule is rationally related to the

Government's interest, as set forth in PRWORA, to: (1)

3

Minimize the incentive of aliens who attempt to immigrate to, or

adjust status in the United States due to the availability of public

4

benefits; and (2) Promote the self-sufficiency of aliens within

the United States. DHS has defined public benefits by focusing

5

on cash assistance programs for income maintenance, and an

exhaustive list of non-cash food, housing, and healthcare,

6

designed to meet basic living needs. This definition does not

include benefits related exclusively to emergency response,

7

immunization, education, or social services, nor does it include

exclusively state and local non-cash aid programs. DHS

8

acknowledges that individuals subject to this rule may decline

to enroll in, or may choose to disenroll from, public benefits for

9

which they may be eligible under PRWORA, in order to avoid

negative consequences as a result of this final rule. However,

10

DHS has authority to take past, current, and likely future receipt

of public benefits into account, even where it may ultimately

11

result in discouraging aliens from receiving public benefits.

12

Although individuals may reconsider their receipt of public

benefits as defined by this rule in light of future immigration

13

consequences, this rule does not prohibit an alien from

obtaining a public benefit for which he or she is eligible. DHS

14

expects that aliens seeking lawful permanent resident status or

nonimmigrant status in the United States will make purposeful

15

and well-informed decisions commensurate with the

immigration status they are seeking. But regardless, DHS

16

declines to limit the effect of the rulemaking to avoid the

possibility that individuals subject to this rule may disenroll or

17

choose not to enroll, as self-sufficiency is the rule's ultimate

aim. 18

Second, DHS finds it difficult to predict how this rule will affect

19

aliens subject to the public charge ground of inadmissibility,

because data limitations provide neither a precise count nor

20

reasonable estimate of the number of aliens who are both

subject to the public charge ground of inadmissibility and are

21

eligible for public benefits in the United States. This difficulty is

compounded by the fact that most applicants subject to the

22

public charge ground of inadmissibility and therefore this rule

are generally unlikely to suffer negative consequences

23

resulting from past receipt of public benefits because they will

have been residing outside of the United States and therefore,

24

ineligible to have ever received public benefits.

25

. . . .

26

Third, DHS finds it difficult to predict the rule's disenrollment

impacts with respect to people who are not regulated by this

27

rule, such as people who erroneously believe themselves to be

affected. . . . This rule does not prohibit or otherwise discourage

28

individuals who are not subject to the public charge

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inadmissibility from receiving any public benefits for which they

1

are eligible.

2

. . . .

3

Because DHS will not consider the receipt of public benefits by

U.S. citizens and aliens not subject to public charge

4

inadmissibility, the receipt of public benefits by these

individuals will not be counted against or made attributable to

5

immigrant family members who are subject to this rule.

Accordingly, DHS believes that it would be unwarranted for

6

U.S. citizens and aliens exempt from public charge

inadmissibility to disenroll from a public benefit program or

7

forego enrollment in response to this rule when such individuals

are not subject to this rule. DHS will not alter this rule to account

8

for such unwarranted choices.

9

DHS appreciates the potential effects of confusion regarding

the rule's scope and effect, as well as the potential nexus

10

between public benefit enrollment reduction and food

insecurity, housing scarcity, public health and vaccinations,

11

education health-based services, reimbursement to health

providers, and increased costs to states and localities. In

12

response to comments, DHS will also issue clear guidance that

identifies the groups of individuals who are not subject to this

13

rule, including, but not limited to, U.S. citizens, lawful

permanent residents returning from a trip abroad who are not

14

considered applicants for admission, and refugees.

15

. . . .

16

In sum, DHS does not believe that it is sound policy to ignore

the longstanding self-sufficiency goals set forth by Congress or

17

to admit or grant adjustment of status applications of aliens who

are likely to receive public benefits designated in this rule to

18

meet their basic living needs in an [sic] the hope that doing so

might alleviate food and housing insecurity, improve public

19

health, decrease costs to states and localities, or better

guarantee health care provider reimbursements. . . . DHS

20

believes that it will ultimately strengthen public safety, health,

and nutrition through this rule by denying admission or

21

adjustment of status to aliens who are not likely to be self-

sufficient.

22

23 84 Fed. Reg. at 41,312–14 (footnotes omitted).

24

That answer entirely fails to discuss costs being borne by the states, hospitals, or

25 others, other than to say DHS will issue guidance in an effort to mitigate confusion. The

26 answer discusses disenrollment rates being difficult to measure, but flatly refuses to

27 account for certain types of disenrollment (for example those who “erroneously believe

28 themselves to be affected” and make “unwarranted choices”). DHS’s response

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1 constitutes a thinly-veiled abdication of the responsibility to consider the issue. Rather

2 than engage, the response simply elides the issue that the APA requires consideration of.

3

Ending the analysis with the conclusion that “DHS believes that it will ultimately

4 strengthen public safety, health, and nutrition through this rule” fails to show that DHS

5 “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action

6 including a rational connection between the facts found and the choice made.” Encino

7 Motorcars, 136 S. Ct. at 2125 (quoting Motor Vehicle Mfrs. Assn., 463 U.S. at 43);

8 Sorenson Commc’ns Inc. v. F.C.C., 755 F.3d 702, 708 (D.C. Cir. 2014) (“Though an

9 agency’s predictive judgments about the likely economic effects of a rule are entitled to

10 deference, deference to such judgments must be based on some logic and evidence, not

11 sheer speculation.”) (internal quotation marks and citations omitted). DHS fails to explain

12 how those benefits will come about with any evidentiary support. In fact, ample evidence

13 cited in the comments shows exactly the opposite—that use of public benefits improves

14 public health and welfare. DHS’s bare assertion to the contrary simply is not enough to

15 satisfy its obligations. Even ignoring the fact that the conclusion lacks a reasoned

16 explanation of how it was reached, DHS also fails to address why the supposed benefits

17 will outweigh the likely costs (DHS had at this point already declined to discuss what the

18 likely costs are in fact are). Plaintiffs have shown it is likely that, with respect to

19 consideration of costs imposed on states and localities by the Rule, DHS offers no “path

20 [that] may reasonably be discerned” in its reasoning. Motor Vehicle Mfrs. Ass'n, 463 U.S.

21 at 43.

22

Moreover, DHS may not discount an undisputed impact of the Rule simply

23 because DHS believes it is “unwarranted.” See Michigan, 135 S. Ct. at 2707

24 (“reasonable regulation ordinarily requires paying attention to the advantages and the

25 disadvantages of agency decisions”). DHS flatly refused to consider the costs associated

26 with predicted, likely disenrollment of those not subject to the public charge determination

27 by stating: “DHS believes that it would be unwarranted for U.S. citizens and aliens

28 exempt from public charge inadmissibility to disenroll from a public benefit program or

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1 forgo enrollment in response to this rule when such individuals are not subject to this rule.

2 DHS will not alter this rule to account for such unwarranted choices.” 84 Fed. Reg. at

3 41,313. But DHS’s disagreement with the source of a cost does not make it go away,

4 and it does not discharge DHS’s obligation to consider it. DHS must consider the costs

5 of widespread disenrollment that it anticipates—it cannot ignore costs by calling their

6 causes “unwarranted.” Plaintiffs have shown it is likely that DHS understood that

7 individuals would disenroll even though they are not subject to the public charge

8 determination, yet DHS refused to consider that cost entirely. Doing so would have been

9 arbitrary and capricious. Michigan, 135 S. Ct. at 2707 (“‘cost’ includes more than the

10 expense of complying with regulations; any disadvantage could be termed a cost. . . .

11 Consideration of cost reflects the understanding that reasonable regulation ordinarily

12 requires paying attention to the advantages and the disadvantages of agency

13 decisions.”); accord Metlife, Inc. v. Fin. Stability Oversight Council, 177 F. Supp. 3d 219,

14 223 (D.D.C. 2016) (“focus[ing] exclusively on the presumed benefits . . . and ignor[ing]

15 the attendant costs . . . is itself unreasonable under the teachings of Michigan v.

16 Environmental Protection Agency”); Regents of Univ. of California v. United States Dep't

17 of Homeland Sec., 279 F. Supp. 3d 1011, 1046 (N.D. Cal.), aff'd sub nom. Regents of the

18 Univ. of California v. U.S. Dep't of Homeland Sec., 908 F.3d 476 (9th Cir. 2018), cert.

19 granted sub nom. Dep't of Homeland Sec. v. Regents of the Univ. of California, 139 S.

20 Ct. 2779 (2019) (same).

21

B. Health Effects

22

Plaintiffs argue that DHS ignored comments describing how loss of benefits would

23 trigger negative health consequences, including the spread of disease and aggravation of

24 chronic illness. DHS received ample commentary regarding this issue. See, e.g., 84

25 Fed. Reg. at 41,384 (summarizing certain comments); Cho Decl., Ex. M at 4 (Kaiser

26 Permanente comment linking the rule’s impacts on prescription adherence with increased

27 chance of outbreaks of communicable disease), Ex. N at 9 (Pub. Health Inst. Comment:

28 “We cannot achieve universally agreed upon public health goals, such as reducing

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1 chronic diseases throughout the U.S., when we directly or indirectly deny large segments

2 of our population the very building blocks they need for good health”), Ex. O at 4 (Nat’l

3 Assoc. Ped. Nurse Practitioners comment discussing “worse health outcomes”), P at 7

4 (Children’s HealthWatch comment warning of “increased prevalence of communicable

5 diseases”).

6

Defendants offer the same general defenses in response. First, DHS read the

7 comments, but the forward-looking impact to health was too difficult to assess. Second,

8 even if DHS had assessed those costs, they would be outweighed by the benefits of

9 excluding aliens who would rely on public benefits and promoting self-sufficiency of aliens

10 already in the United States. Those benefits are in line with Congressional statements of

11 policy.

12

Relevantly here, similar negative health outcomes were a key rationale for prior

13 agency action. When issuing the 1999 guidance, INS described its primary motivation “to

14 reduce the negative public health consequences generated by the existing confusion.”

15 64 Fed. Reg. at 28,689; see also id. at 28,692 (adopting regulation on an interim basis

16 because “confusion . . . has deterred eligible [immigrants] and their families, including

17 U.S. citizen children, from seeking important health and nutrition benefits,” and that

18 “reluctance to access benefits has an adverse impact not just on the potential recipients,

19 but on public health and the general welfare”). In reversing the 1999 guidance,

20 defendants must “‘display awareness that it is changing position’ and ‘show that there are

21 good reasons for the new policy.’” Encino Motorcars, 136 S. Ct. at 2126 (quoting FCC v.

22 Fox, 556 U.S. at 515). Moreover, where the prior policy engendered reliance, “a

23 reasoned explanation is needed for disregarding facts and circumstances that underlay

24 or were engendered by the prior policy.” Id.

25

Under the heading “Vaccinations,” the government summarized the comments it

26 was responding to:

27

Commenters indicated that the public charge rule would make

immigrant families afraid to seek health-care, including

28

vaccinations against communicable diseases, and therefore,

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endanger the U.S. population. . . . . The commenter indicated

1

that engaging with the public health system was critical to

ensuring robust immunization to protect the population overall;

2

if a subset of the community were fearful to access government

healthcare services, regardless of whether a specific type of

3

service qualified for a narrow exception, it would have a

significant impact on the country's ability to protect and promote

4

the public health. Another commenter indicated that its health

department anticipated that promulgation of the rule, as written

5

in the NPRM, will result in decreased utilization of children's

healthcare, including vaccinations, which will increase the risk

6

for vaccine preventable diseases . . . increasing the likelihood

of an outbreak. 7

Some commenters stated that since many immigrants live in

8

communities alongside people of the same national origin,

reduced vaccinations could result in unvaccinated or under-

9

vaccinated clusters of individuals. Commenters warned that

research shows that uninsured individuals are much less likely

10

to be vaccinated. One commenter stated that a recent study

found that even a five percent reduction in vaccine coverage

11

could trigger a significant measles outbreak. . . . Another

commenter stated that the rule would increase the incidence of

12

childhood diseases like chickenpox, measles, mumps and

rubella and deter parents from vaccinating their children. 13

14 84 Fed. Reg. at 41,384.

15 The government’s response was:

16

With this rulemaking, DHS does not intend to restrict the access

of vaccines for children or adults or intend to discourage

17

individuals from obtaining the necessary vaccines to prevent

vaccine-preventable diseases. The purpose of this rulemaking

18

is to ensure that those seeking admission to the United States

are self-sufficient and rely on themselves or family and friends

19

for support instead of relying on the government for

subsistence. As noted above, this final rule does not consider

20

receipt of Medicaid by a child under age 21, or during a person's

pregnancy, to constitute receipt of public benefits. This should

21

address a substantial portion, though not all, of the vaccinations

issue. 22

Vaccinations obtained through public benefits programs are not

23

considered public benefits under 8 CFR 212.21(b), although if

an alien enrolls in Medicaid for the purpose of obtaining

24

vaccines, the Medicaid itself qualifies as a public benefit. DHS

also notes that free or low cost vaccines are available to

25

children who are not insured or underinsured through the

Vaccines for Children (VFC) Program. In addition, local health

26

centers and state health departments provide preventive

services that include vaccines that may be offered on a sliding

27

scale fee based on income. Therefore, DHS believes that

vaccines would still be available for children and adults even if

28

they disenroll from Medicaid.

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1 84 Fed. Reg. at 41,384–85 (footnotes omitted).

2

DHS’s response to the comments was essentially that it understood that fewer

3 people would get vaccines following the Rule, which would present a risk, but there are

4 ways to get vaccines without Medicaid. As a result, DHS acknowledged that fewer

5 people will get vaccines, but it failed engage at all in the consequences of that fact.

6

Plaintiffs have demonstrated a likelihood of success based upon this argument.

7 This change departs from a longstanding prior policy, as explained in the 1999 Field

8 Guidance, that is likely to have engendered reliance. That guide explained that certain

9 rules were needed because uncertainty had “deterred eligible aliens and their families,

10 including U.S. citizen children, from seeking important health and nutrition benefits[,

11 which] . . . has an adverse impact not just on the potential recipients, but on public

12 health and the general welfare.” 64 Fed. Reg. at 28,692 (emphasis added). Given that

13 the 1999 Field Guidance was both longstanding precedent and specifically concerned

14 benefits supporting general public health (not simple health of the aliens—e.g., vaccines),

15 DHS must provide “a reasoned explanation . . . for disregarding facts and circumstances

16 that underlay or were engendered by the prior policy.” FCC v. Fox, 556 U.S. at 515–16;

17 accord Encino Motorcars, 136 S. Ct. at 2126 (“an unexplained inconsistency in agency

18 policy is a reason for holding an interpretation to be an arbitrary and capricious change

19 from agency practice”) (internal quotation marks omitted).

20

Although DHS acknowledged departure from the 1999 Field Guidance as a

21 general matter (e.g., 84 Fed. Reg. at 41,307–08), DHS simply declined to engage with

22 certain, identified public-health consequences of the Rule. It made no attempt,

23 whatsoever, to investigate the type or magnitude of harm that would flow from the reality

24 which it admittedly recognized would result—fewer people would be vaccinated. Instead,

25 and just as with its refusal to consider “unwarranted” choices to disenroll from Medicaid

26 discussed above, DHS responded only that it “believes that vaccines would still be

27 available” through some other channels. The response is devoid of rationale, but

28 additionally it fails entirely to provide a reasoned explanation for disregarding the facts

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1 and circumstances underlying the prior policy.

2

C. Form I-944

3

Plaintiffs argue that defendants’ estimate of the time and cost burden that the new

4 Form I-944, entitled Declaration of Self Sufficiency, will have on applicants is implausible.

5 They argue that the Rule provides too-low of an estimate for the time required to fill out

6 the form, based on its estimate about the time it takes to fill out another related form.

7 They argue that DHS did not adequately consider the differences between the forms

8 when arriving at their estimate. Yet DHS considered and responded to comments

9 regarding the time commitment required by Form I-944. In response DHS modified the

10 form, removed some duplicative questions, and explained that it is important to be filed

11 separately because it is filed by the immigrant himself. 84 Fed. Reg. at 41,484. Plaintiffs

12 have not demonstrated a likelihood of success or serious questions with respect to this

13 argument.

14

ii. Other Challenges

15

Plaintiffs raise a number of other procedural challenges under the APA. The court

16 finds that plaintiffs have not demonstrated a likelihood of success on the merits or serious

17 questions with respect to any, and it will address some of them briefly.

18

Plaintiffs argue that the Rule stops treating sponsors’ affidavits of support as

19 sufficient assurance that immigrant applicants will not become overly dependent on

20 public benefits, yet Congress specified in 8 U.S.C. § 1182(a)(4)(B)(ii) that the executive

21 simply “may also” consider such affidavits. Although plaintiffs argue that in practice

22 USCIS has accepted affidavits of support as conclusive, the controlling statute and 1999

23 Field Guidance make clear that this is not a change in policy. See 64 Fed. Reg. at

24 28,690 (“Where such an AOS has been filed on an alien's behalf, it should be considered

25 along with the statutory factors in the public charge determination.”).

26

Plaintiffs argue the Rule is inconsistent because DHS included an exemption for

27 individuals under the age of 21 who receive Medicaid benefits, but did not include a

28 similar exemption for individuals under the age of 21 who receive SNAP benefits. DHS

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1 considered this issue and provided a reasoned explanation for providing Medicaid to

2 children, including that it can provide funding for “in-school health services and serve as

3 an important way to ensure that children receive the vaccines needed to protect public

4 health and welfare.” 84 Fed. Reg. at 41,380.

5

Plaintiffs argue the Rule is inconsistent because the statute requires consideration

6 of “education and skills” and “health,” but the Rule requires a much more searching

7 inquiry into health than education and skills. For example, the Rule considers details

8 about an individual’s health insurance, benefits receipt, and financial status of household

9 members, but inconsistently fails to take into account admission or attendance in a

10 college or trade school. But the Rule in fact allows for consideration of admission or

11 attendance in a college or trade school, and DHS adequately addressed these issues in

12 response to comments. See 84 Fed. Reg. at 41,436 (“the exact nature of the education

13 (or lack thereof) and employment would have to be considered”).

14

Plaintiffs argue the Rule is inconsistent because it considers past immigration-

15 related fee waivers, which may be submitted before a noncitizen is legally eligible to work

16 and as a result punish that individual for applying to work legally. DHS adequately

17 responded, noting that “[s]ince fee waivers are based on an inability to pay, seeking or

18 obtaining a fee waiver for an immigration benefit suggests an inability to be self-

19 sufficient.” 84 Fed. Reg. at 41,424–25.

20

Plaintiffs argue the Rule is inconsistent because Medicaid use by pregnant women

21 or children (who are not penalized for using Medicaid under the rule) is counted against

22 them, because Medicaid is not counted as an asset that could offset the negative factor

23 of their illness that Medicaid is paying to treat. Plaintiffs argue that is not consistent,

24 because private insurance is considered an asset. Defendants argue that the Rule does

25 not count a severe medical condition as a heavily weighed negative factor if the alien has

26 “the financial resources to pay for reasonably foreseeable medical costs related to such

27 medical condition,” and such “financial resources” can include Medicaid benefits for those

28 pregnant or under 21. See 84 Fed. Reg. at 41,504 (“resources . . . to pay for reasonably

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1 foreseeable medical costs” includes “health insurance not designated as a public benefit

2 under 8 CFR 212.21(b)”).

3

Plaintiffs argue the Rule is irrational because an income of 125% of the federal

4 poverty guideline rate counts as a positive factor, yet individuals whose incomes exceed

5 that qualify for non-cash benefits considered under the Rule. But not all factors in a

6 multifactor test are required to align in outcome to be rational.

7

Plaintiffs argue the Rule is irrational because while it considers large family size as

8 a negative factor in a public charge assessment, DHS’s own data indicates that non-cash

9 benefit is higher among families of three than families of four, and that noncitizens’ use of

10 cash benefits decreases as family size grows. 84 Fed. Reg. at 41,395. The parties

11 appear to disagree about which studies are “good studies” here, but DHS’s response

12 explained its interpretation of the studies and concluded that “the data properly reflects

13 that receipt of noncash benefits generally increases with an increase in family size.” Id.

14

Plaintiffs argue the Rule is irrational because it considers the mere application for

15 benefits in the public charge determination. Plaintiffs argue that an application for

16 benefits does not indicate a noncitizen is actually financially and otherwise eligible for the

17 benefit or will decide to use the benefit. DHS reasonably explained that an “application

18 for a public benefit is not the same as receipt but is indicative of an alien's intent to

19 receive such a benefit.” 84 Fed. Reg. at 41,422.

20

Plaintiffs argue the Rule is irrational because it is ultimately a vague and entirely

21 unpredictable framework for weighing the statutorily-authorized and newly-added factors,

22 which results in limitless discretion. The precise nature of the procedural challenge is

23 unclear here, but the underlying statute requires consideration of “at minimum” five

24 factors, and then specifically mentions another factor that “may” be considered.

25 Moreover, the statute specifically targets those who are likely to be a public charge “in the

26 opinion of the Attorney General,” who as DHS recognized has long been given discretion

27 to make such determinations under the statute. 84 Fed. Reg. at 41,398 (“DHS notes that

28 officer discretion is not a new concept in USCIS immigration benefits adjudications.”).

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1

Plaintiffs argue the Rule is irrational because some factors are actually

2 determinative, and impossible to overcome because the factors significantly overlap. As

3 a result, the Rule funnels officials’ decision-making towards favoring high-income

4 individuals at the expense of the poor and other marginalized groups. To the extent

5 plaintiffs challenge the Rule favoring admission of the wealthy over the poor, the plaintiffs’

6 appropriate target is the underlying statute rather than the Rule implementing it. The

7 statute itself calls for consideration of a number of factors, ultimately aimed at excluding

8 from the country a group comprised of those who are more likely to be poor than rich.

9

d. Zone of Interests

10

In order to succeed on the merits, plaintiffs must be within the zone of interests of

11 the statute that forms the basis of their challenge. The zone of interests analysis asks

12 “whether Congress created a private cause of action in legislation” (Organized Vill. of

13 Kake v. U.S. Dep't of Agric., 795 F.3d 956, 964 (9th Cir. 2015)), such that “this particular

14 class of persons has a right to sue under this substantive statute” (Lexmark Int'l, Inc. v.

15 Static Control Components, Inc., 572 U.S. 118, 127 (2014)). It is “not a question of

16 Article III standing” (Organized Vill. of Kake, 795 F.3d at 964), but rather is more

17 appropriately assessed with plaintiffs’ likelihood of success.19

18

“[A] person suing under the APA must satisfy not only Article III's standing

19 requirements, but an additional test: The interest he asserts must be ‘arguably within the

20 zone of interests to be protected or regulated by the statute’ that he says was

21 violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567

22 U.S. 209, 224 (2012) (quoting Ass'n of Data Processing Serv. Organizations, Inc. v.

23 Camp, 397 U.S. 150, 153 (1970)). In the APA context, “[t]he ‘zone of interest’ test is a

24 guide for deciding whether, in view of Congress’ evident intent [when enacting the APA]

25 to make agency action presumptively reviewable, a particular plaintiff should be heard to

26

27

19 The “zone of interests” requirement was formerly referred to as an assessment of “prudential standing,” but “prudential standing is a misnomer as applied to the zone-of-

28

interests analysis[.]” Lexmark, 572 U.S. at 127 (internal quotation marks omitted); accord Organized Vill. of Kake, 795 F.3d at 964 (9th Cir. 2015).

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1 complain of a particular agency decision. In cases where the plaintiff is not itself the

2 subject of the contested regulatory action, the test denies a right of review if the plaintiff’s

3 interests are so marginally related to or inconsistent with the purposes implicit in the

4 statute that it cannot reasonably be assumed that Congress intended to permit the suit.

5 The test is not meant to be especially demanding; in particular, there need be no

6 indication of congressional purpose to benefit the would-be plaintiff.” Clarke v. Sec.

7 Indus. Ass'n, 479 U.S. 388, 399–400 (1987) (footnote omitted); see also Pottawatomi

8 Indians, 567 U.S. at 225–26 (2012).

9

“Whether a plaintiff comes within the ‘zone of interests’ is an issue that requires us

10 to determine, using traditional tools of statutory interpretation, whether a legislatively

11 conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark, 572 U.S.

12 at 127. “In answering this question, we recognize that ‘the breadth of the [applicable]

13 zone of interests varies according to the provisions of law at issue.’” Sierra Club v.

14 Trump, 929 F.3d 670, 700 (9th Cir. 2019) (quoting Lexmark, 572 U.S. at 130). “When the

15 [Supreme] Court has applied the zone of interests test in APA actions, however, it has

16 analyzed the zone of interests of the statute the agency is alleged to have violated, not

17 any zone of interests of the APA itself.” Id. at 702; accord Mendoza v. Perez, 754 F.3d

18 1002, 1016 (D.C. Cir. 2014). Nevertheless, “when analyzing whether a plaintiff falls

19 within the zone of interests of a particular statute, courts should be particularly lenient if a

20 violation of that statute is being asserted through an APA claim.” Id. at 703 n.26; accord

21 Pottawatomi Indians, 567 U.S. at 225 (“we have always conspicuously included the word

22 ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff”); Pit

23 River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155–56 (9th Cir. 2015) (“The

24 zone-of-interests test should be applied consistent with Congress's intent ‘to make

25 agency action presumptively reviewable’ under the APA.”).

26

Procedural and substantive challenges under the APA are subject to the same

27 analysis, because “a party within the zone of interests of any substantive authority

28 generally will be within the zone of interests of any procedural requirement governing

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1 exercise of that authority[.]” Int'l Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1484 (D.C.

2 Cir. 1994).

3

“Whether a plaintiff's interest is ‘arguably ... protected ... by the statute’ within the

4 meaning of the zone-of-interests test is to be determined not by reference to the overall

5 purpose of the Act in question (here [in the context of the Endangered Species Act],

6 species preservation), but by reference to the particular provision of law upon which the

7 plaintiff relies.” Bennett v. Spear, 520 U.S. 154, 175–76 (1997). Put differently, “the

8 plaintiff must establish that the injury he complains of ... falls within the ‘zone of interests'

9 sought to be protected by the statutory provision whose violation forms the legal basis for

10 his complaint.” Id. at 176 (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 883 (1990))

11 (citing Air Courier Conference v. Postal Workers, 498 U.S. 517, 523–24 (1991)). For

12 example, an allegation that § 4 of the Bank Service Corporation Act was violated

13 considers whether plaintiffs are within the zone of interests of § 4 itself, not “the overall

14 purpose of the Bank Service Corporation Act of 1962[.]” Id. (citing Data Processing, 397

15 U.S. at 155–156); accord Air Courier Conference, 498 U.S. at 529–30 (The “relevant

16 statute” is generally not the entire act, because “to accept this level of generality in

17 defining the ‘relevant statute’ could deprive the zone-of-interests test of virtually all

18 meaning.”); Pit River Tribe, 793 F.3d at 1157 (“ability to challenge . . . cannot be

19 determined by looking to the broad objectives of the” act); but see E. Bay Sanctuary

20 Covenant v. Trump, 932 F.3d 742, 768 n.9 (9th Cir. 2018) (“E. Bay Sanctuary I”) (“‘[W]e

21 are not limited to considering the [specific] statute under which [plaintiffs] sued, but may

22 consider any provision that helps us to understand Congress' overall purposes in the

23 [INA].’”) (quoting Clarke, 479 U.S. at 401).

24

Although the relevant statute “is the statute whose violation is the gravamen of the

25 complaint” and not the entire act, the court may also look to provisions that “have any

26 integral relationship” with the relevant statute. Air Courier Conference, 498 U.S. at 529–

27 30 (quoting Lujan, 497 U.S. at 886) (citing Clarke, 479 U.S. at 388). For example, when

28 the challenged statutory section operates as an enumerated exception to another

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1 section, the court may consider both sections when determining whether a plaintiff falls

2 within the zone of interests of the challenged section. Clarke, 479 U.S. at 401

3 (considering related statutory section to which challenged statute was an exception);

4 accord Air Courier Conference, 498 U.S. at 529 (recognizing the exception in Clarke as

5 limited: “This statement [that the court may look beyond the specific challenged section],

6 like all others in our opinions, must be taken in the context in which it was made. In the

7 next paragraph of the opinion, the Court pointed out that 12 U.S.C. § 36, which the

8 plaintiffs in that case claimed had been misinterpreted by the Comptroller, was itself ‘a

9 limited exception to the otherwise applicable requirement of [12 U.S.C.] § 81,’ . . . . Thus

10 the zone-of-interests test was to be applied not merely in the light of § 36, which was the

11 basis of the plaintiffs' claim on the merits, but also in the light of § 81, to which § 36 was

12 an exception.”).

13

i. The County and State Plaintiffs

14

The County and State plaintiffs’ interests are squarely within the challenged

15 statute’s zone of interests. For example, that statute allows the Attorney General to

16 consider an affidavit of support under 8 U.S. Code § 1183a when determining whether to

17 exclude an alien as a likely public charge. See 8 U.S.C. §§ 1182(a)(4)(B)(ii). Although

18 distinct, Section 1183a is specifically referred to and incorporated into the public charge

19 analysis set out in the challenged statute. As a result, § 1183a has an integral

20 relationship with § 1182(a)(4), such that it should be considered when determining

21 whether plaintiffs are within the zone of interests of the challenged statute.

22

Section 1183a explains that someone can sponsor an alien by guaranteeing to

23 financially support him, and thereby alleviate the concern that he may become a public

24 charge. That statute also provides that any such sponsorship can only be considered in

25 the public charge analysis if it is supported by an affidavit that is “legally enforceable

26 against the sponsor by . . . any State (or any political subdivision of such State), or by any

27 other entity that provides any means-tested public benefit[.]” § 1183a(a)(1)(B); see also

28 § 1183a(b)(1)(A) (“Upon notification that a sponsored alien has received any means-

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1 tested public benefit, the . . . appropriate entity of the Federal Government, a State, or

2 any political subdivision of a State shall request reimbursement by the sponsor in an

3 amount which is equal to the unreimbursed costs of such benefit.”). Moreover, the

4 sponsor must agree to submit to jurisdiction in state courts for actions to compel

5 reimbursement of benefits those states paid to the alien. §§ 1183a(a)(1)(C), (e)(2).

6

By recognizing that states (and political subdivisions of states) would be paying

7 means-tested public benefits to those subject to a public charge analysis, requiring that

8 states and their subdivisions have legally-enforceable rights to recover those expenses

9 when an alien is admitted based on consideration of an affidavit of support, and

10 guaranteeing state-court jurisdiction for such enforcement actions, Congress clearly

11 intended to protect states and their political subdivisions with the challenged statute.

12

Moreover, given the attention paid to states’ rights to recover payment of “any

13 means-tested public benefit” from affiants in § 1183a, it is also more than arguable that

14 Congress intended to protect states and their political subdivisions’ coffers when

15 providing for the exclusion of any alien “likely at any time to become a public charge” in

16 the first place. 8 U.S.C. §§ 1182(a)(4)(A). So, the State and County plaintiffs’ financial

17 interests are also at least arguably protected by the statute for this independent reason.

18

Therefore, the States’ and Counties’ interests are more than arguably related to

19 the challenged statute’s purpose, and they satisfy the zone-of-interests requirement.

20

ii. The Organizations

21

The Organizations move for an injunction based on one claim that the Rule

22 violates the APA because it is substantively contrary to the term “public charge” as used

23 in 8 U.S.C. § 1182(a)(4), and a related procedural APA claim based on the same

24 underlying statute. As such, the Organizations must be within that statute’s zone of

25 interest.

26

Their papers argue that they are within the statute’s zone of interests for three

27 reasons. First, the Rule itself counts health care providers and nonprofit organizations

28 among those who will be affected by it. Second, plaintiffs’ interests in serving low-

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1 income, immigrant communities by providing medical or legal services and advice are

2 related to and consistent with the statute’s purpose to provide procedures and policies for

3 immigration relief. Third, and relatedly, the Ninth Circuit has recently held that similar

4 plaintiffs are within the INA’s zone of interests.

5

First, the Organizations argue the Rule itself contemplates that organizations like

6 them will be adversely affected by it. But being negatively affected by a rule

7 implementing a statute is not sufficient to establish that the statute conferred a cause of

8 action encompassing that plaintiff’s claim. The Organizations’ argument that they will be

9 hurt by the Rule speaks to their standing to challenge it, rather than whether they are

10 within the statute’s zone of interest. See Air Courier Conference, 498 U.S. at 524 (“injury

11 in fact does not necessarily mean one is within the zone of interests to be protected by a

12 given statute”); see also Lujan, 497 U.S. at 883 (“for example, the failure of an agency to

13 comply with a statutory provision requiring ‘on the record’ hearings would assuredly have

14 an adverse effect upon the company that has the contract to record and transcribe the

15 agency's proceedings; but since the provision was obviously enacted to protect the

16 interests of the parties to the proceedings and not those of the reporters, that company

17 would not be ‘adversely affected within the meaning’ of the statute”).

18

Second, the Organizations argue that their interests align with the statute. Yet

19 their briefing failed to identify or explain what statutory provisions support their argument.

20 That failure is fatal given the Supreme Court’s direction that the zone of interests analysis

21 “requires us to determine, using traditional tools of statutory interpretation, whether a

22 legislatively conferred cause of action encompasses a particular plaintiff’s claim.”

23 Lexmark, 572 U.S. at 127. When asked at the hearing what specific statutory provisions

24 they are relying upon, the Organizations for the first time identified 8 U.S.C. § 1611. That

25 section outlines the federal public benefits for which aliens are eligible. But the

26 Organizations do not assert a challenge based on a violation of § 1611, and it is not at all

27 clear that § 1611 has “any integral relationship with” 8 U.S.C. § 1182(a)(4) such that it is

28 proper for the court to consider it in the zone of interests inquiry. See Air Courier

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1 Conference, 498 U.S. at 529 (without a particular reason to suggest otherwise, sections

2 within the same act are not sufficiently related); cf. Clarke, 479 U.S. at 401 (considering

3 related statutory section to which challenged statute was an exception).

4

Even if the court were to consider § 1611, the Organizations leave the court to

5 guess at what connection those statutory provisions share, much less how 8 U.S.C.

6 § 1182(a)(4) is related to the Organizations’ purposes in light of § 1611. Finally, the

7 Organizations do not even explain how their interests are more than marginally related to

8 § 1611 itself—which does not even “give institutions like the Organizations a role[.]” E.

9 Bay Sanctuary I, 932 F.3d at 769.

10

At this stage of litigation, the Organizations have not met their burden to

11 demonstrate that there are serious questions concerning whether they are within the

12 challenged statute’s zone of interest, and certainly they have failed to demonstrate a

13 likelihood that they are able to bring the APA actions underlying their present motion.

14

Taking a step back, the Organizations simply fail to explain how their interests

15 relate to § 1182(a)(4)’s purpose of excluding immigrants likely to become public charges.

16 This may be because the Organizations identify, without explanation, the statute’s

17 purpose as providing “procedures and policies for immigration relief.” That may be based

18 on an argument about the INA’s overall statutory purpose, untethered to the statutory

19 challenge underlying this motion. In support of that argument, the Organizations rely on

20 E. Bay Sanctuary I, 932 F.3d at 771. But the statute at issue in that action concerned

21 asylum seekers, and the very statute underlying that challenge contained a provision

22 requiring the Attorney General to refer asylum seekers to pro bono legal aid

23 organizations, such as the plaintiff entities in that action. The court identified specific

24 references to the role of pro bono legal organizations within the challenged statute itself,

25 and it found that was sufficient. That is very different from the facts presented here. See

26 E. Bay Sanctuary I, 932 F.3d at 768 (“Within the asylum statute [underlying the

27 preliminary injunction, 8 U.S.C. § 1158(a)(1)], Congress took steps to ensure that pro

28 bono legal services of the type that the Organizations provide are available to asylum

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1 seekers. See 8 U.S.C. § 1158(d)(4)(A)–(B)”).20

2

2. Plaintiffs are Likely to Suffer Irreparable Harm

3

The three distinct issues of (i) standing, (ii) ripeness, and (iii) irreparable harm in

4 the absence of an injunction are supported by the same factual analysis for each plaintiff.

5 Although each of the three requirements is independent for plaintiffs to succeed on this

6 motion, a finding that plaintiffs are likely to suffer irreparable harm in the absence of an

7 injunction here is sufficient to establish standing and ripeness. For the Organizations, the

8 court assesses only standing and ripeness.

9

The court first addresses the legal standards, and then assesses each plaintiff’s

10 demonstrated harms.

11

a. Legal Standards

12

i. Standing

13

Federal courts may adjudicate only actual cases or controversies, see U.S. Const.

14 Art. III, § 2, and may not render advisory opinions as to what the law ought to be or

15 affecting a dispute that has not yet arisen. Aetna Life Ins. Co. of Hartford, Conn. v.

16 Haworth, 300 U.S. 227, 240 (1937). Article III's “standing” requirements limit the court’s

17 subject matter jurisdiction. See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir.

18 2004). The burden of establishing standing rests on the party asserting the claim.

19 Renne v. Geary, 501 U.S. 312, 316 (1991).

20

The “irreducible constitutional minimum of standing contains three elements. First,

21 the plaintiff must have suffered an injury in fact—an invasion of a legally protected

22 interest which is (a) concrete and particularized, and (b) actual or imminent, not

23 conjectural or hypothetical. Second, there must be a causal connection between the

24 injury and the conduct complained of—the injury has to be fairly traceable to the

25

26

20 To the extent the Organizations argue that E. Bay Sanctuary I, 932 F.3d at 771 allows this court to look to unrelated provisions in the INA for a section justifying their interest in

27

the action, the court is at a loss as how to how reconcile that interpretation with Bennett, 520 U.S. at 175–76, Air Courier Conference, 498 U.S. at 529, and Pit River Tribe, 793

28

F.3d at 1157. Absent clarity from an en banc determination of this issue, the court hews to Supreme Court and prior panel authority on the question.

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1 challenged action of the defendant, and not the result of the independent action of some

2 third party not before the court. Third, it must be likely, as opposed to merely speculative,

3 that the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504

4 U.S. 555, 560–61 (1992) (citations and internal quotation marks omitted); see also

5 Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

6

“At least one plaintiff must have standing to seek each form of relief

7 requested, and that party bears the burden of establishing the elements of standing with

8 the manner and degree of evidence required at the successive stages of the litigation.”

9 E. Bay Sanctuary I, 932 F.3d at 763–64 (internal quotation marks and citations omitted).

10 At this preliminary stage, plaintiffs “may rely on the allegations in their Complaint and

11 whatever other evidence they submitted in support of their” motion to meet their

12 burden. Id. at 764. They “need only establish a risk or threat of injury to satisfy the

13 actual injury requirement.” Id.

14

Organizations can establish standing two different ways.

15

First, “Organizations can demonstrate organizational standing by showing that the

16 challenged ‘practices have perceptibly impaired [their] ability to provide the services [they

17 were] formed to provide.’” Id. at 765. “[A] diversion-of-resources injury is sufficient to

18 establish organizational standing for purposes of Article III if the organization shows that,

19 independent of the litigation, the challenged policy frustrates the organization's goals and

20 requires the organization to expend resources in representing clients they otherwise

21 would spend in other ways.” Id. (internal quotation marks and citations omitted) (citing

22 inter alia, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d

23 936, 943 (9th Cir. 2011) (en banc) (advocacy groups had organizational standing to

24 challenge an anti-solicitation ordinance that targeted day laborers based on the

25 resources spent by the groups in assisting day laborers during their arrests and meetings

26 with workers about the status of the ordinance); Nat'l Council of La Raza v. Cegavske,

27 800 F.3d 1032, 1039–40 (9th Cir. 2015) (civil rights groups had organizational standing to

28 challenge alleged voter registration violations where the groups had to “expend additional

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1 resources” to counteract those violations that “they would have spent on some other

2 aspect of their organizational purpose”); El Rescate Legal Servs., Inc. v. Exec. Office of

3 Immigration Review, 959 F.2d 742, 748 (9th Cir. 1991) (legal services groups had

4 organizational standing to challenge a policy of providing only partial interpretation of

5 immigration court proceedings, noting that the policy “frustrate[d]” the group's “efforts to

6 obtain asylum and withholding of deportation in immigration court proceedings” and

7 required them “to expend resources in representing clients they otherwise would spend in

8 other ways.”); Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (finding

9 organizational standing where the plaintiffs “had to divert resources to educational

10 programs to address its members’ and volunteers’ concerns about the [challenged] law's

11 effect”)).

12

In E. Bay Sanctuary I, the Ninth Circuit held that plaintiffs established

13 organizational standing by declaring that enforcement of a regulation “frustrated their

14 mission of providing legal aid” to asylum applicants by “significantly discourage[ing] a

15 large number of those individuals from seeking asylum given their ineligibility.” 932 F.3d

16 at 766. That regulation would require plaintiffs “to partially convert their affirmative

17 asylum practice into a removal defense program, an overhaul that would require

18 ‘developing new training materials’ and ‘significant training of existing staff.’” Id. “Finally,

19 the [plaintiff] Organizations have each undertaken, and will continue to undertake,

20 education and outreach initiatives regarding the new rule, efforts that require the

21 diversion of resources away from other efforts to provide legal services to their local

22 immigrant communities.” Id.

23

Second, “Organizations can demonstrate organizational standing by showing that

24 the Rule will cause them to lose a substantial amount of funding. For standing purposes,

25 a loss of even a small amount of money is ordinarily an ‘injury.’ We have held that an

26 organization that suffers a decreased amount of business and lost revenues due to a

27 government policy easily satisfies the ‘injury in fact’ standing requirement.” Id. at 766–67

28 (internal quotation marks and citations omitted).

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1

In E. Bay Sanctuary I, the Ninth Circuit held that plaintiffs established

2 organizational standing by declaring that they received a large portion of their funding

3 based on the number of asylum applications they pursue, and that if their prospective

4 clients “became categorically ineligible for asylum, East Bay would lose a significant

5 amount of business and suffer a concomitant loss of funding.” Id. at 767.

6

ii. Ripeness

7

“Ripeness is an Article III doctrine designed to ensure that courts adjudicate live

8 cases or controversies and do not ‘issue advisory opinions [or] declare rights in

9 hypothetical cases.’ A proper ripeness inquiry contains a constitutional and a prudential

10 component.” Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1153 (9th Cir. 2017)

11 (citations omitted).

12

“For a case to be ripe, it must present issues that are definite and concrete, not

13 hypothetical or abstract. Constitutional ripeness is often treated under the rubric of

14 standing because ripeness coincides squarely with standing’s injury in fact prong.” Id.

15 (internal quotation marks and citations omitted); Thomas v. Anchorage Equal Rights

16 Comm'n, 220 F.3d 1134, 1138–39 (9th Cir. 2000) (“Sorting out where standing ends and

17 ripeness begins is not an easy task. . . . . [I]n ‘measuring whether the litigant has

18 asserted an injury that is real and concrete rather than speculative and hypothetical, the

19 ripeness inquiry merges almost completely with standing.’”). Allegations that a “threat” to

20 a “concrete interest is actual and imminent” are sufficient to allege “an injury in fact that

21 meets the requirements of constitutional ripeness.” Bishop Paiute Tribe, 863 F.3d at

22 1154. Therefore, if plaintiffs satisfy the Article III standing requirements under Lujan v.

23 Defs. of Wildlife, addressed above, the action here is ripe. In this case, the analysis for

24 both requirements is the same. See, e.g., Thomas, 220 F.3d at 1139 (“Whether the

25 question is viewed as one of standing or ripeness, the Constitution mandates that prior to

26 our exercise of jurisdiction there exist a constitutional ‘case or controversy,’ that the

27 issues presented are ‘definite and concrete, not hypothetical or abstract.’ . . . We need

28 not delve into the nuances of the distinction between the injury in fact prong of standing

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1 and the constitutional component of ripeness: in this case, the analysis is the same.”).

2

“In evaluating the prudential aspects of ripeness, our analysis is guided by two

3 overarching considerations: ‘the fitness of the issues for judicial decision and the

4 hardship to the parties of withholding court consideration.’” Thomas, 220 F.3d at 1141.

5 When the question presented “is ‘a purely legal one’” that “constitutes ‘final agency

6 action’ within the meaning of § 10 of the APA,” that suggests the issue is fit for judicial

7 decision. Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 812 (2003). However,

8 an issue may not be ripe for review if “further factual development would ‘significantly

9 advance our ability to deal with the legal issues presented.’” Id.

10

iii. Irreparable Harm

11

“A plaintiff seeking preliminary relief must ‘demonstrate that irreparable injury is

12 likely in the absence of an injunction.’” California v. Azar, 911 F.3d 558, 581 (9th Cir.

13 2018) (quoting Winter, 555 U.S. at 22); Boardman v. Pac. Seafood Grp., 822 F.3d 1011,

14 1023 (9th Cir. 2016) (“A threat of irreparable harm is sufficiently immediate to warrant

15 preliminary injunctive relief if the plaintiff ‘is likely to suffer irreparable harm before a

16 decision on the merits can be rendered.’”) (quoting Winter, 555 U.S. at 22)).

17

“There must be a ‘sufficient causal connection’ between the alleged irreparable

18 harm and the activity to be enjoined, and showing that ‘the requested injunction would

19 forestall’ the irreparable harm qualifies as such a connection.” Nat'l Wildlife Fed'n v. Nat'l

20 Marine Fisheries Serv., 886 F.3d 803, 819 (9th Cir. 2018) (citing Perfect 10, Inc. v.

21 Google, Inc., 653 F.3d 976, 981–82 (9th Cir. 2011)). “However, a plaintiff ‘need not

22 further show that the action sought to be enjoined is the exclusive cause of the injury.’” Id.

23 (quoting M.R. v. Dreyfus, 697 F.3d 706, 728 (9th Cir. 2012)).

24

The irreparable harm “analysis focuses on irreparability, ‘irrespective of the

25 magnitude of the injury.’” Azar, 911 F.3d at 581 (quoting Simula, Inc. v. Autoliv, Inc., 175

26 F.3d 716, 725 (9th Cir. 1999)). “[T]he temporary loss of income, ultimately to be

27 recovered, does not usually constitute irreparable injury.” Sampson v. Murray, 415 U.S.

28 61, 90 (1974). But the general rule that “[e]conomic harm is not normally considered

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1 irreparable” does not apply where there is no adequate remedy to recover those

2 damages, such as in APA cases. Azar, 911 F.3d at 581 (citing 5 U.S.C. § 702).

3

b. The Plaintiffs’ Harms

4

First, the court assesses the Counties’ and States’ standing, the ripeness of their

5 claims, and whether they have demonstrated irreparable harm in absence of an

6 injunction. Second, the court assesses the Organizations’ standing and the ripeness of

7 their claims.

8

i. The States and Counties

9

The States and Counties argue that they will suffer five categories of irreparable

10 harm: (A) loss of federal funds, mostly in Medicaid reimbursement; (B) increased

11 operational costs; (C) increased costs to their own healthcare operations (D) public

12 health problems and resulting increased costs; and (E) reduced economic activity due to

13 a decrease in federal funds in the community.

14

A. Loss of Federal Funds

15

The Counties argue that they will lose millions of dollars in federal Medicaid

16 reimbursement funds. Each provides a broad array of health services to low-income

17 residents, many of which are at least partially reimbursed with federal Medicaid dollars.

18 DHS itself estimates that 2.5% of individuals in households with a noncitizen will disenroll

19 from Medicaid, which would translate to a roughly $7.5 million loss in Medicaid

20 reimbursement funds.

21

The States similarly argue that DHS itself estimates that the Rule will cause a

22 reduction in payments from the federal government due to disenrollment or foregone

23 enrollment by eligible individuals to be over $1.5 billion, nationwide. 83 Fed. Reg. at

24 51,267–69.

25

Defendants argue the harm is too speculative, caused only by third-party actions,

26 and not imminent because the merits can be resolved quickly on summary judgment.

27 Defendants argue that even assuming a 2.5% rate of disenrollment, plaintiffs fail to show

28 that the States and Counties will be harmed, rather than individuals residing within their

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1 boundaries. Defendants argue that harm individual citizens will suffer cannot support the

2 States and Counties claims of irreparable harm. Finally, defendants argue that any

3 financial harms the States and Counties identify are not sufficiently large to establish

4 irreparable harm.

5

First, regarding the speculative nature of the harm, defendants themselves predict

6 a 2.5% disenrollment rate when assessing the Rule, subject to the procedural

7 requirements of the APA. 84 Fed. Reg. at 41,463. The Rule itself also estimated that it

8 will cause a reduction in payments from the federal government due to disenrollment or

9 foregone enrollment by eligible individuals of over $1.5 billion. 83 Fed. Reg. at 51,267–

10 69; see also Cisneros Decl. A at 98-99, Table 18 (annual estimates of $1.46 billion to

11 $4.37 billion in reduced payments). Those figures, which underlie DHS’s analysis in

12 support of the Rule pursuant to the APA’s requirements, are not speculative conjectures

13 as to what might possibly occur. They are meant to be serious efforts by an agency to

14 assess the impact of a proposed rule, and it is difficult to fathom how defendants can

15 argue otherwise. And plaintiffs offer sufficient evidence to demonstrate that disenrollment

16 or non-enrollments will reach at least that level. See 84 Fed. Reg. at 41,463; Wong Decl.

17 ¶¶ 18-45; Shing Decl. ¶ 30; Weisberg Decl. ¶12; Ponce Decl. ¶¶ 4–11, 25. This type of

18 predictable result from a broad policy, although not precise to the level of the individual

19 actor, is sufficiently-specific to allege irreparable harm. See Dep’t of Commerce v. New

20 York, 139 S. Ct. 2551, 2565 (2019). Moreover, plaintiffs offer evidence showing that

21 disenrollment due to the public charge rulemaking has already begun. See, e.g., Cody

22 Decl. ¶ 8; Newstrom Decl. ¶ 43; Weisberg Decl. ¶¶ 12–14; Shing Decl. ¶¶ 23–24; Chawla

23 Decl. ¶ 13; Fanelli Decl. ¶ 38; Neville-Morgan Decl. ¶ 16; Ruiz Decl. ¶¶ 10, 12; Kofman

24 Decl. ¶ 6; Medina Decl. ¶¶ 18–22. Plaintiffs offer strong evidence that disenrollment is

25 likely to continue between now and the resolution of this issue on the merits, absent an

26 injunction.

27

Plaintiffs also adequately demonstrate that the loss of Medicaid reimbursement is

28 sure to be immediate, once individuals disenroll. That is apparent from the very

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1 mechanics of the harm. Today, the States and Counties are partially reimbursed by the

2 federal government for care provided to Medicaid enrollees. As individuals disenroll, the

3 plaintiffs will no longer be reimbursed for treating them. This will have obvious adverse

4 budgetary consequences. For one, there will indisputably be fewer individuals covered

5 by Medicaid seeking treatment. So, the States and Counties will not be reimbursed for

6 treating those disenrolled individuals (whether they treat them or not). The States and

7 Counties would experience this terminated revenue stream even if they turned away

8 patients without medical insurance (which they will not). Put differently, there will be

9 fewer people on Medicaid to treat and get reimbursed for.

10

To the extent defendants argue that the mechanics will work out as a budgetary

11 boon to plaintiffs, the argument is not plausible in the context of this preliminary injunction

12 motion. Although it could potentially work out as a total budgetary savings for the plaintiff

13 entities if they reconfigured their operations, reduced staff, reduced provision of services,

14 and undertook other cost-savings measures, such savings could not plausibly be realized

15 prior to the determination of this action’s merits. See, e.g., Lorenz Decl. ¶¶ 19–22.

16 Instead, the plaintiffs will be continuing to operate with most of the costs and expectations

17 associated with the status quo, with one change—no reimbursements.

18

Second, the States and Counties’ argument regarding loss of Medicaid funding

19 does not rely on harms to their citizens. Rather, the arguments concern the plaintiffs’

20 own loss of funds.

21

Third, plaintiffs must demonstrate that they are likely to suffer irreparable harm, but

22 they need not establish a particular quantum of harm to satisfy the requirement. Azar,

23 911 F.3d at 581 (irreparable harm “analysis focuses on irreparability, ‘irrespective of the

24 magnitude of the injury’”). Nor do defendants explain why San Francisco’s likely loss of

25 $7.5 million in Medicaid reimbursements (based on a 2.5% disenrollment rate) is not

26 sufficiently large even under their theory of the requirement. See Wagner Decl. ¶ 5.

27 Santa Clara similarly estimates $4.6 million in foregone Medicaid funds due to more

28 conservative 1.9% decline in enrollment. Shing Decl. ¶ 32 (estimating $4.6 million in

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1 Medicaid fund losses due to 1.9% decline in enrollment). The States similarly

2 demonstrate the harms they are likely to suffer from the loss of Medicaid

3 reimbursements. See Cantwell Decl. ¶¶ 6, 14 (2.5 million noncitizen Medicaid

4 beneficiaries in California); Ferrer Decl. ¶ 19 (predicted disenrollment figures in L.A.

5 County); Lucia Decl. ¶ 23 (estimates of $957 million in lost funding in California,

6 assuming 15% disenrollment rate); Buhrig I Decl. ¶¶ 4, 8, 10, 27 (330,000 Pennsylvania

7 Medicaid beneficiaries are part of a household with a noncitizen); Allen Decl. ¶¶ 10, 18,

8 36-40 (63,000 noncitizens participate in the Oregon Health Plan system, a federal/state

9 partnership program; other participants are citizen children part of a household with a

10 noncitizen); Byrd Decl. ¶¶ 18–20 & Ex. A at 2, 4 (16,000 children in the District of

11 Columbia receive Medicaid assistance, and 28% of the District’s children are part of a

12 household with a noncitizen; 9,800 immigrants enrolled in Medicaid reside in the District);

13 Probert Decl. ¶¶ 4–8, 15 (13,918 noncitizens enrolled in Medicaid in Maine).

14

B. Increased Operational Costs

15

The States argue that the Rule will impose burdens on their ongoing operations.

16 Defendants argue that such costs are self-imposed and not cognizable.

17

Governmental administrative costs caused by changes in federal policy are

18 cognizable injuries. See Cal. v. Trump, 267 F. Supp. 3d 1119, 1126 (N.D. Cal. 2017)

19 (states’ “administrative costs” caused by a disruption to healthcare exchanges they

20 administer were sufficient to demonstrate standing) (collecting cases); see also Azar, 911

21 F.3d at 573–74.21

22

The Counties have submitted evidence of cognizable, irreparable costs. Santa

23 Clara explains that they have already spent over 1,000 hours answering questions about

24 the Rule, processing disenrollment, analyzing the impact of the rule on their services and

25 undertaking community education and outreach—and these activities are likely to

26

27

21 The government relies on inapposite case law, most notably Crane v. Johnson, 783 F.3d 244, 253-54 (5th Cir. 2015), which addressed individual public employee claims (not

28

claims by the public entity itself) that they might have to change their job practices because of a policy change.

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1 continue to be necessary. E.g., Shing Decl. ¶¶ 8, 11–12; see also Lorenz Decl. ¶ 19;

2 Márquez Decl. ¶¶ 9–10. San Francisco has submitted evidence of similar measures it

3 has already taken and will continue to take in direct response to the Rule. See Pon Decl.

4 ¶¶ 13–16; Rhorer Decl. ¶ 11; Smith Decl. ¶¶ 4–9. California and Oregon have submitted

5 evidence showing they are likely to imminently suffer similar harms absent an injunction.

6 Ruiz Decl. ¶ 19 (California); Fernandez Decl. ¶¶ 34–36 (California); Fanelli Decl. ¶ 40

7 (California); Salazar Decl. ¶ 37 (Oregon). Other states submit declarations regarding

8 these issues, but they are too vague or speculative to support issuance of an injunction.

9 E.g., Byrd Decl. ¶¶ 22–23 (discussing past efforts in D.C., and stating the District will

10 generally “need to train staff” on the issue); Probert Decl. ¶ 16 (speculation concerning

11 costs Maine may face).

12

Additionally, certain plaintiff states use Medicaid and SNAP enrollment to

13 automatically certify children into school lunch programs, meaning that those states

14 would face higher administrative costs to certify student eligibility for free lunch following

15 disenrollment caused by the Rule. To the extent states’ administrative costs increase to

16 assess eligibility for free lunch as children disenroll from the federal programs (as

17 opposed to merely an increased burden on the applicants), that administrative cost

18 increase is cognizable harm. California and D.C. submit competent evidence

19 demonstrating that their costs in administering school lunch programs will increase. See

20 Palmer Decl. ¶ 16 (declaring D.C.’s costs would go up to process school lunch

21 applications); Fernandez Decl. ¶ 30 (declaring California’s “administrative streamlining

22 and efficiency” will suffer when enrolling students for free lunch); see generally Neville-

23 Morgan Decl. ¶ 22 (in California, “paperwork is more burdensome for those without an

24 automatic qualification through Medi-Cal or SNAP, and immigrant eligible families are

25 less likely to obtain school lunch benefits in this way”).

26

These costs that the States and Counties have identified are predictable, likely,

27 and imminent. In fact, DHS specifically contemplated certain of these costs when

28 formulating the Rule. E.g., 83 Fed. Reg. at 51,260 (“The primary sources of the

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1 consequences and indirect impacts of the proposed rule would be costs to various

2 entities that the rule does not directly regulate, such as hospital systems, state agencies,

3 and other organizations that provide public assistance to aliens and their households.

4 Indirect costs associated with this rule include familiarization with the rule for those

5 entities that are not directly regulated but still want to understand the changes in federal

6 and state transfer payments due to this rule.”) (emphasis added); see also 84 Fed. Reg.

7 at 41,389 (“DHS agrees that some entities, such as State and local governments or other

8 businesses and organizations would incur costs related to the changes commenters

9 identify.”).

10

Because the States and Counties have each demonstrated sufficient likely

11 irreparable injury in the form of loss of federal funds to support a preliminary injunction,

12 and the Counties, California, D.C., and Oregon have demonstrated additional irreparable

13 injury in the form of operational costs, the court need not address the remaining three

14 categories of irreparable harm plaintiffs argue they will imminently suffer.

15

ii. The Organizations

16

“[C]ourts have an ‘independent obligation’ to police their own subject matter

17 jurisdiction, including the parties' standing. Accordingly, we must assure ourselves that

18 Plaintiffs have alleged an injury in fact, fairly traceable to the defendant's conduct, and

19 likely to be redressed by a favorable judicial decision.” Animal Legal Def. Fund v. United

20 States Dep't of Agric., 935 F.3d 858, 866 (9th Cir. 2019) (citations omitted).

21

“[A] diversion-of-resources injury is sufficient to establish organizational standing

22 for purposes of Article III if the organization shows that, independent of the litigation, the

23 challenged policy frustrates the organization's goals and requires the organization to

24 expend resources in representing clients they otherwise would spend in other ways.” E.

25 Bay Sanctuary I, 932 F.3d at 765 (internal quotation marks and citations omitted).

26

Defendants argue that the Organizations fail to identify any injury they will suffer if

27 they do not divert resources towards addressing their concerns, apart from harm to the

28 health care they are able to provide to low income communities. For example, if they

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1 failed to divert resources, they would not face staff shortages or provide worse health

2 services.

3

In E. Bay Sanctuary I, the court found standing based on an organization partially

4 converting an asylum practice into a removal defense program, a prediction that

5 applications filed on behalf of the organizations’ clients would become more difficult and

6 reduce available funds for other activities, and education and outreach initiatives

7 regarding the new rule. 932 F.3d at 766; see also, e.g., El Rescate Legal Services, 959

8 F.2d at 748 (standing where legal services groups had expended “resources in

9 representing clients they otherwise would spend in other ways”); Fair Hous. Council of

10 San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012)

11 (finding organizational standing where the plaintiff responded to allegations of

12 discrimination by “start[ing] new education and outreach campaigns targeted at

13 discriminatory roommate advertising”).

14

The Healthcare Organizations’ missions are to provide high quality health care to

15 low-income and immigrant communities. Castellano-García Decl. ¶ 5; García Decl. ¶ 3,

16 7–10. La Clínica and California-Primary-Care-Association-member-organization Asian

17 Health Services have diverted resources from their core missions to address community

18 and individual patient concerns about the public charge determination. García Decl.

19 ¶¶ 13, 16, 21; Quach Decl. ¶¶ 26–29 (evidence of $1 million diversion to education

20 campaigns about the Rule). These education efforts take away from their ability to serve

21 their core organizational purposes. Moreover, they will have to lay off employees and

22 change or cancel programs in response to the Rule. García Decl. ¶ 18; see also Ku

23 Decl. ¶ 65 (estimating nationwide community health center staffing losses of 3,400 to

24 6,100 employees).

25

The Legal Organizations’ missions are to provide advocacy and/or legal services

26 to their clients and members, including obtaining immigration relief and helping to secure

27 public benefits. Kassa Decl. ¶¶ 3–7; Ayloush Decl. ¶¶ 4–7; Sharp Decl. ¶¶ 4–7;

28 Goldstein Decl. ¶¶ 4–5; Seon Decl. ¶¶ 3– 7; Nakamura Decl. ¶¶ 3–8; Kersey Decl. ¶¶ 6–

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1 7, 14–20.

2

Plaintiffs have adequately alleged frustration of their purpose because many of

3 their clients will no longer be eligible for immigration relief, or will choose to not enroll or

4 to disenroll from benefits to remain eligible for immigration relief. The Rule plainly

5 hinders their clients’ ability to obtain immigration relief and/or public benefits.

6

Plaintiffs have also adequately alleged that they will have to divert funding

7 because those who may still be eligible for relief or choose to apply for benefits will

8 require additional time and resources from plaintiffs to address the effects of the Rule,

9 and this additional time and rising ineligibility or disenrollment means that plaintiffs will be

10 able to file fewer cases and help fewer clients. See Kassa Decl. ¶¶ 10–13, 16; Ayloush

11 Decl. ¶¶ 11–14; Sharp Decl. ¶¶ 12–15, 18; Goldstein Decl. ¶ 8; Seon Decl. ¶¶ 10–14;

12 Nakamura Decl. ¶¶ 12, 14–15; Kersey Decl. ¶¶ 23–30. Kassa Decl. ¶¶ 10, 12–13;

13 Ayloush Decl. ¶¶ 11–12; Sharp Decl. ¶ 13; Seon Decl. ¶¶ 10–14; Nakamura Decl. ¶¶ 14–

14 16; Kersey Decl. ¶¶ 34, 36.

15

Some plaintiffs also have increased operational costs as they address the impact

16 of the Rule on their services, such as by hiring additional staff or adding new programs or

17 services. Ayloush Decl. ¶ 14; Seon Decl. ¶ 14; Nakamura Decl. ¶¶ 13–14, 16–17;

18 Kersey Decl. ¶¶ 21, 26–30, 35. Some plaintiffs have had to divert resources from other

19 core services and priorities to staffing, training, education, and public outreach

20 addressing the Rule. Kassa Decl. ¶¶ 11, 14–17; Ayloush Decl. ¶¶ 13, 15–16; Sharp

21 Decl. ¶¶ 14–16; Goldstein Decl. ¶ 7–12; Seon Decl. ¶ 16–19, 21; Nakamura Decl. ¶¶ 13–

22 14, 16–17; Kersey Decl. ¶¶ 26–29, 35–36.

23

Defendants would have this court require more than the Ninth Circuit does for

24 standing. Here, it is enough for plaintiffs to allege that their goals of providing healthcare

25 and legal services to low-income immigrants are frustrated, and that the challenged

26 policy has stimulated the organizations into spending money on things they would not

27 otherwise have spent money on. Plaintiffs’ public education efforts, changes to their

28 programs, increased costs of assisting clients, and other diversions of resources qualify

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1 under the Ninth Circuit’s requirements.22

2

3. The Balance of Equities and Hardships Tip Sharply in Plaintiffs’ Favor

3

“A court must ‘balance the interests of all parties and weigh the damage to each’ in

4 determining the balance of the equities.” CTIA - The Wireless Ass'n v. City of Berkeley,

5 928 F.3d 832, 852 (9th Cir. 2019) (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109,

6 1138 (9th Cir. 2009)).

7

There is little question that the balance of equities and hardships tip sharply in

8 favor of the States and Counties. Defendants have been operating under a consistent

9 definition of “public charge” since at least 1999, when the INS issued Field Guidance

10 specifying “that ‘public charge’ means an alien . . . who is likely to become (for

11 admission/adjustment purposes) ‘primarily dependent on the government for subsistence,

12 as demonstrated by either (i) the receipt of public cash assistance for income

13 maintenance or (ii) institutionalization for long-term care at government expense.’” 64

14 Fed. Reg. at 28,689. That standard is specific and workable, and defendants have been

15 administering it for decades. In fact, defendants conceded that do not argue that they

16 would suffer any hardship in the face of an injunction prohibiting them from replacing

17 those standards with the new Rule until resolution of this case on the merits. Defendants’

18 only argument with respect to the balance of equities or hardships and the public interest

19 is that Congress has made a policy judgment that aliens should be self-sufficient, and the

20 executive should not be prevented from implementing a rule that advances that policy.

21

On the other hand, implementing the change defendants propose would upend

22 state and local governments’ operations as they support immigrants while determining

23 how to adjust to the new Rule and provide services that the federal government once

24 predictably assisted with. To the extent this factor is merged with the public interest and

25 considers the effects on non-parties, the most severely affected individuals are the aliens

26

27 22 As the issue was not meaningfully addressed by the parties, the court does not decide

28

at this time whether California Primary Care Association satisfies the requirements for associational standing.

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1 seeking LPR status themselves, who would face uncertainty regarding their access to

2 healthcare and subsidized nutrition as they learn to adapt to and attempt to navigate the

3 Rule’s deterrents.

4

In short, implementing the Rule after decades of a consistent policy prior to a

5 determination of this action on the merits—which defendants argue will be accomplished

6 in short order—does little to advance the defendants’ interests, and it would entirely

7 upend the plaintiffs’ (and the non-party aliens’) interests.

8

4. An Injunction Is in the Public’s Interest

9

“When the government is a party, the last two factors merge.” Azar, 911 F.3d at

10 575. Therefore, the public interest analysis is subsumed in the balance of equities and

11 hardships, addressed above, and the public interest therefore favors and injunction.

12

Even though the public’s interest generally merges with the balance of equities, it

13 can be “appropriate to consider the factors separately,” for example when intervenors

14 present distinct interests. League of Wilderness Defs./Blue Mountains Biodiversity

15 Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). In those instances, “[t]he

16 public interest inquiry primarily addresses impact on non-parties rather than parties.” Id.

17

Here, the public interest cuts sharply in favor of an injunction. Specifically, the

18 public interest supports continuing the provision of medical services through Medicaid to

19 those who would predictably disenroll absent an injunction, for numerous reasons.

20 Although the court has not reached the issue as to whether plaintiffs’ arguments

21 regarding the impacts on public health support their argument for imminent harm, the

22 parties and numerous amici have explained that the predictable disenrollment from

23 Medicaid absent an injunction would have adverse health consequences not only to

24 those who disenroll, but to the entire populations of the plaintiff states, for example, in the

25 form of decreased vaccination rates. The public certainly has an interest in decreasing

26 the risk of preventable contagion.

27

As such, the public interest supports preserving the long-standing status quo

28 pending final, coherent resolution on the merits.

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1

5. Scope of the Injunction Necessary to Redress Plaintiffs’ Imminent

2

Harms

3

a. Legal Standard

4

When a plaintiff satisfies its burden to demonstrate that a preliminary injunction

5 should issue, “injunctive relief should be no more burdensome to the defendant than

6 necessary to provide complete relief to the plaintiffs.” Califano, 442 U.S. at 702; accord

7 L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (injunction

8 “should be no more burdensome to the defendant than necessary to provide complete

9 relief to the plaintiffs before the court”) (internal quotation mark omitted); Lamb-Weston,

10 Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (“Injunctive relief . . . must

11 be tailored to remedy the specific harm alleged.”). “‘The purpose of such interim

12 equitable relief is not to conclusively determine the rights of the parties but to balance the

13 equities as the litigation moves forward.’” Azar, 911 F.3d at 582.

14

But “[t]here is no general requirement that an injunction affect only the parties in

15 the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1987). “[A]n injunction is not

16 necessarily made over-broad by extending benefit or protection to persons other than

17 prevailing parties in the lawsuit—even if it is not a class action—if such breadth is

18 necessary to give prevailing parties the relief to which they are entitled.” Id. at 1170;

19 accord Regents of the Univ. of California v. U.S. Dep't of Homeland Sec., 908 F.3d 476,

20 511 (9th Cir. 2018), cert. granted sub nom. Dep't of Homeland Sec. v. Regents of the

21 Univ. of California, 139 S. Ct. 2779 (2019).

22

With respect to immigration matters in particular, the Ninth Circuit has “consistently

23 recognized the authority of district courts to enjoin unlawful policies on a universal basis.”

24 E. Bay Sanctuary I, 932 F.3d at 779 (citing Regents of the Univ. of Cal., 908 F.3d at

25 511; Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev'd on other grounds and

26 remanded, 138 S. Ct. 2392 (2018); Washington v. Trump, 847 F.3d 1151, 1166–67 (9th

27 Cir.), reconsideration en banc denied, 853 F.3d 933 & 858 F.3d 1168 (9th Cir. 2017), and

28 cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448 (2017)). “These are,

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1 however, ‘exceptional cases.’” E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029

2 (9th Cir. 2019) (“E. Bay Sanctuary II”) (quoting City & Cty. of San Francisco v. Trump,

3 897 F.3d 1225, 1244 (9th Cir. 2018)). That is because, even though courts have the

4 authority to issue nationwide preliminarily injunctions, doing so still requires “an

5 articulated connection to a plaintiff’s particular harm[.]” Id. (“nationwide injunction is [not]

6 appropriate simply because this case presents a rule that applies nationwide”); see also

7 Azar, 911 F.3d at 582–84. That requirement is not lifted in the immigration context. E.g.,

8 E. Bay Sanctuary II, 934 F.3d at 1029 (“Under our case law, however, all injunctions—

9 even ones involving national policies—must be ‘narrowly tailored to remedy the specific

10 harm shown.’”); E. Bay Sanctuary I, 932 F.3d at 779 (nationwide scope appropriate

11 where it “is necessary to provide the plaintiffs here with complete redress” and district

12 court could not “have crafted a narrower remedy that would have provided complete relief

13 to the [plaintiffs]”) (quoting Regents of the Univ. of Cal., 908 F.3d at 512) (internal

14 quotation mark omitted).23

15

The Ninth Circuit has emphasized that any preliminary injunction must be

16 supported by evidence in the record identifying the likely effect the enjoined conduct

17 would have on the particular plaintiffs. E.g., San Francisco v. Trump, 897 F.3d at 1244

18 (the “record is not sufficient to support a nationwide injunction” where “the Counties'

19 tendered evidence is limited to the effect of the Order on their governments and the State

20 of California. . . . However, the record is not sufficiently developed on the nationwide

21 impact of the Executive Order.”); Azar, 911 F.3d at 584 (“On the present record, an

22

23

23 The Ninth Circuit requires an articulated connection to a plaintiff’s particular harms notwithstanding “the need for uniformity in immigration policy.” See Regents of the Univ.

24

of Cal., 908 F.3d at 511 (“Allowing uneven application of nationwide immigration policy flies in the face of these requirements.”); Hawaii v. Trump, 878 F.3d at 701 (“Because this

25

case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”); see also San Francisco v. Trump, 897 F.3d at

26

1244 (“These exceptional cases are consistent with our general rule that ‘[w]here relief can be structured on an individual basis, it must be narrowly tailored to remedy the

27

specific harm shown’—'an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit ... if such

28

breadth is necessary to give prevailing parties the relief to which they are entitled.’”) (quoting Bresgal, 843 F.2d at 1170–71).

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1 injunction that applies only to the plaintiff states would provide complete relief to them. It

2 would prevent the economic harm extensively detailed in the record. Indeed, while the

3 record before the district court was voluminous on the harm to the plaintiffs, it was not

4 developed as to the economic impact on other states.”). “District judges must require a

5 showing of nationwide impact or sufficient similarity to the plaintiff states to foreclose

6 litigation in other districts, from Alaska to Puerto Rico to Maine to Guam.” Azar, 911 F.3d

7 at 584.

8

Finally, although the scope of the injunction in this action is governed by the

9 controlling Ninth Circuit law explained above, the court notes that the Ninth Circuit and

10 the Supreme Court have both credited prudential considerations supporting their

11 admonition that nationwide preliminary injunctions are appropriate only in “exceptional

12 cases.” See San Francisco v. Trump, 897 F.3d at 1244; E. Bay Sanctuary II, 934 F.3d at

13 1029. First, nationwide injunctions unconnected to a plaintiff’s particular harm

14 “unnecessarily ‘stymie novel legal challenges and robust debate’ arising in different

15 judicial districts.” E. Bay Sanctuary II, 934 F.3d at 1029; see also Azar, 911 F.3d at 583

16 (“The Supreme Court has repeatedly emphasized that nationwide injunctions have

17 detrimental consequences to the development of law and deprive appellate courts of a

18 wider range of perspectives.”). That consideration is relevant here, where actions raising

19 similar changes are also currently pending in district courts in New York, Maryland, and

20 Washington, and perhaps more. Second, nationwide injunctions may fail to adequately

21 recognize “the equities of non-parties who are deprived the right to litigate in other

22 forums,” who “are essentially deprived of their ability to participate[.]” Azar, 911 F.3d at

23 583. Third, “[n]ationwide injunctions are also associated with forum shopping, which

24 hinders the equitable administration of laws.” Id.

25

b. Analysis

26

Here, the Counties and the States have demonstrated a likelihood of irreparable

27 harm based on their loss of Medicaid funding from the federal government and increased

28 90

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1 operational costs they are likely to carry.24 Those harms stem directly from disenrollment

2 of individuals seeking medical care in their jurisdictions, residing in their jurisdictions, and

3 enrolling in certain other public benefits in their jurisdictions (for example, school lunch

4 programs). Those harms, and the supporting record, are discussed in detail above. In

5 order to preserve the status quo pending resolution on the merits and to prevent certain

6 of these irreparable harms, it is necessary to enjoin implementation of the Rule with

7 respect to those who reside in the States and Counties any time following the date of this

8 order, until this action is resolved on the merits. Moreover, defendants must be

9 additionally enjoined from applying the Rule to any individual who is part of a household

10 (as defined in the Rule, 8 C.F.R. § 212.21(d)) that includes a person who has resided in a

11 plaintiff State or County any time following the date of this order, until this action is

12 resolved on the merits.

13

Defendants may, of course, continue to process applications and otherwise

14 operate pursuant to the standards employed prior to October 15, 2019—that is, pursuant

15 to the status quo.

16

The plaintiffs request a nationwide injunction based primarily on what they argue

17 would be the inadministrability of an immigration policy that is not administered uniformly

18 nationally. But a nationwide injunction is not “appropriate simply because this case

19 presents a rule that applies nationwide.” E. Bay Sanctuary II, 934 F.3d at 1029; accord

20 San Francisco v. Trump, 897 F.3d at 1244 (record must also be independently

21 “developed on the nationwide impact” and the statewide impact).

22

Plaintiffs also argue that a nationwide injunction is necessary to provide certainty

23 to the public and quell confusion about the implementation of the Rule. They argue that

24 general, nationwide confusion will cause disenrollment even in the States and Counties,

25

26 24 Because the Organizations have not demonstrated a likelihood of success on—or

27

serious questions going to—the merits of their APA causes of action (the only claims underlying their motion for preliminary injunction), they have not demonstrated that an

28

injunction should issue to prevent the harms they are likely to suffer, so the court does not consider their alleged harms in determining the scope of the injunction.

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1 causing the above-discussed harms. Plaintiffs have certainly demonstrated that

2 confusion about the nation’s immigration policies is a cause of disenrollment, even for

3 those who will not be subject to the public charge assessment. However, plaintiffs have

4 not demonstrated the marginal effect a nationwide injunction would have on curing that

5 confusion for their residents over and above an injunction limited to their own borders.

6 Although it is conceivable that a nationwide injunction pending resolution on the merits

7 would lead to less disenrollment due to confusion within California than this injunction

8 covering all of California (and the other States), it is plaintiffs’ obligation to demonstrate

9 the necessity of such relief. This court does not suggest that no evidence could support

10 such an injunction. Nor does the court suggest that the record evidence is necessarily

11 insufficient. Rather plaintiffs, by devoting only a few cursory paragraphs in their briefs to

12 the scope the injunction, have failed to sufficiently tie that evidence to the need for an

13 injunction beyond their borders in order to remedy the specific harms alleged and

14 accepted by the court as likely, imminent, and irreparable.

15

CONCLUSION

16

For the foregoing reasons, the States and Counties’ motion for a preliminary

17 injunction is GRANTED, as explained above. The Organizations’ motion is DENIED,

18 because they do not fall within the zone of interests of the statute forming the basis of

19 their APA claims.

20

PRELIMINARY INJUNCTION

21

Defendants U.S. Citizenship and Immigration Services, Department of Homeland

22 Security, Kevin McAleenen as Acting Secretary of DHS, Kenneth T. Cuccinelli as Acting

23 Director of USCIS, and Donald J. Trump, as President of the United States, are hereby

24 enjoined from applying the Rule, in any manner, to any person residing (now or at any

25 time following the issuance of this order) in San Francisco City or County, Santa Clara

26 County, California, Oregon, the District of Columbia, Maine, or Pennsylvania, or to

27 anyone who is part of a household (as defined by the Rule, 8 C.F.R. § 212.21(d)) that

28 includes such a person. The injunction will remain in effect until a resolution of this action

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1 on the merits.

2

IT IS SO ORDERED.

3 Dated: October 11, 2019

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/s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON United States District Judge
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1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

LA CLINICA DE LA RAZA, et al.,

8

Plaintiffs,

Case No. 19-cv-04980-PJH

9

v.

10

DONALD J. TRUMP, et al.,

11

Defendants.

ORDER GRANTING MOTION FOR RECONSIDERATION
Re: Dkt. No. 183

12

13

14

Before the court is plaintiffs La Clínica De La Raza, California Primary Care

15 Association, Maternal and Child Health Access, Farmworker Justice, Council on

16 American Islamic Relations–California, African Communities Together, Legal Aid Society

17 of San Mateo County, Central American Resource Center, and Korean Resource

18 Center’s (collectively, “plaintiffs”) motion for reconsideration. The matter is fully briefed

19 and suitable for decision without oral argument. Having read the parties’ papers and

20 carefully considered their arguments and the relevant legal authority, and good cause

21 appearing, the court hereby rules as follows.

22

BACKGROUND

23

On May 20, 2020, plaintiffs filed a first amended complaint (“FAC”) asserting eight

24 causes of action: (1) Violation of the Administrative Procedure Act (“APA”), 5 U.S.C.

25 § 706—Contrary to Law; (2) Violation of APA, 5 U.S.C. § 706—Arbitrary and Capricious;

26 (3) Violation of APA, 5 U.S.C. § 706—Arbitrary and Capricious; (4) Violation of APA, 5

27 U.S.C. § 706—Arbitrary and Capricious or Not in Accordance with Law; (5) Violation of

28 the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345 et seq., and DHS Organic

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1 Statute, 6 U.S.C. § 113; (6) Violation of the FVRA, 5 U.S.C. § 3345 et seq.; (7) Violation

2 of the Fifth Amendment; and (8) Declaratory Judgment Act—Unlawfully Appointed

3 Agency Director. Dkt. 161. The FAC names as defendants Donald J. Trump, the

4 Department of Homeland Security (“DHS” or the “Department”), the U.S. Citizenship and

5 Immigration Service (“USCIS”), Chad Wolf, and Kenneth Cuccinelli (collectively

6 “defendants”) and challenges promulgation of DHS’s final rule entitled “Inadmissibility on

7 Public Charge Grounds,” published on August 14, 2019. See Inadmissibility on Public

8 Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“the Rule”).

9

The FAC alleges that former Acting Secretary of Homeland Security Kevin

10 McAleenan assumed the role in violation of the FVRA and DHS’s organic statute and

11 therefore the unlawful appointment renders the Rule invalid. See, e.g., FAC ¶ 138. On

12 August 7, 2020, this court granted in part, denied in part, and deferred ruling in part

13 defendants’ motion to dismiss the FAC and, as relevant here, granted defendants’ motion

14 to dismiss plaintiffs’ third, fifth, and eighth claims concerning McAleenan’s appointment

15 as Acting Secretary. Dkt. 177 at 26. Plaintiffs now move for reconsideration of the

16 court’s determination pursuant to Federal Rule of Civil Procedure 54(b).

17

DISCUSSION

18 A. Legal Standard

19

Federal Rule of Civil Procedure 54(b) provides in part that “any order . . . that

20 adjudicates fewer than all the claims or the rights and liabilities of fewer than all the

21 parties . . . may be revised at any time before the entry of a judgment adjudicating all the

22 claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b); Moses H. Cone

23 Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 & n.14 (1983) (“[E]very order short

24 of a final decree is subject to reopening at the discretion of the district judge.”).

25 “Reconsideration is appropriate if the district court (1) is presented with newly discovered

26 evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if

27 there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cty., Or.

28 v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation omitted); see Civ. L.R. 7-9(b).

2

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1 B. Analysis

2

1. Summary of Prior Order

3

Plaintiffs’ third, fifth, and eighth claims allege that former Acting Secretary

4 McAleenan assumed that role in violation of the Homeland Security Act of 2002 (“HSA”)

5 and the FVRA and therefore the Rule should be vacated pursuant to the APA, the FVRA,

6 and the Declaratory Judgment Act. FAC ¶¶ 203, 211–13, 230. Defendants moved to

7 dismiss these claims, arguing that former Secretary Kirstjen Nielsen established a new

8 order of succession pursuant to 6 U.S.C. § 113(g)(2) and under that revised order,

9 McAleenan validly assumed the role of Acting Secretary. Dkt. 166 at 18. In response,

10 plaintiffs argued that, when Secretary Nielsen resigned and McAleenan assumed the role

11 of Acting Secretary, DHS’s order of succession—Delegation No. 00106—explicitly

12 provided that in cases of resignation, Executive Order 13753 governed the orderly

13 succession of officials and Secretary Nielsen did not amend the order of succession in

14 cases of resignation. Dkt. 167 at 18. In turn, Executive Order 13753 provided a list of

15 eighteen officers and McAleenan was not next in line according to this list. Id. In reply,

16 defendants argued that in her April 2019 order, Secretary Nielsen exercised her authority

17 to designate the order of succession pursuant to 6 U.S.C. § 113(g)(2) and that order

18 superseded any prior order of succession. Dkt. 172 at 14.

19

This court determined that, contrary to defendants’ argument, Secretary Nielsen’s

20 April 9, 2019 order only amended the portion of Delegation No. 00106 that applied in

21 cases when the Secretary is unavailable to act during a disaster or catastrophic

22 emergency but did not apply in cases of death, resignation, or inability to perform the

23 functions of the office. Dkt. 177 at 25. The court agreed with plaintiffs that Executive

24 Order 13753 controlled the order of succession in cases of resignation and that

25 McAleenan, as the Commissioner of Customs and Border Patrol (“CBP”), was seventh in

26 line with two individuals ahead of him. Id. at 26. However, the court relied on

27 subsection (b)(ii) of Executive Order 13753, which states that “[n]otwithstanding the

28 provisions of this section, the President retains discretion, to the extent permitted by the

3

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1 Vacancies Act, to depart from this order in designating an acting Secretary.” Id. The

2 court reasoned that because plaintiffs did not allege that McAleenan failed to meet one of

3 the three options under the FVRA for the temporary appointment of officers, the

4 President had discretion to appoint McAleenan as Acting Secretary. Id. Thus, plaintiffs

5 failed to state a claim based on invalid appointment. Id.

6

2. New Evidence

7

In their motion for reconsideration, plaintiffs offer four pieces of evidence that

8 occurred after this court’s prior order that purportedly establish that McAleenan was not

9 appointed as acting secretary pursuant to the FVRA and the court should therefore

10 modify its prior order. First, on August 14, 2020, defendants DHS and Chad Wolf

11 appeared before the district court for the District of Maryland and at a hearing on a

12 motion for preliminary injunction, they repeatedly disavowed that the President appointed

13 McAleenan pursuant to the FVRA. Mtn. at 4. Second, also on August 14, 2020, the

14 Government Accountability Office (“GAO”) issued an opinion in which it determined that

15 McAleenan was not validly appointed to his position as Acting Secretary. Id. at 5–6.

16 Third, DHS submitted a letter to the GAO on August 17, 2020 demanding that GAO

17 withdraw its opinion and stated that GAO’s report did not concern an appointment under

18 the FVRA. Id. at 6. Fourth, Acting Secretary Wolf has publicly disagreed with the GAO

19 report and represented that the authority to appoint successors was governed by the

20 Homeland Security Act, not the FVRA. Id. at 7.

21

The court discusses this new evidence in the broader context of the FVRA, the

22 HSA, and the DHS’s order of succession. Article II, section 2 of the Constitution requires

23 that the President obtain “the Advice and Consent of the Senate” to appoint “Officers of

24 the United States.” U.S. Const., art. II, § 2, cl. 2.

25

Given this provision, the responsibilities of an office requiring

Presidential appointment and Senate confirmation—known as

26

a “PAS” office—may go unperformed if a vacancy arises and

the President and Senate cannot promptly agree on a

27

replacement. Congress has long accounted for this reality by

authorizing the President to direct certain officials to temporarily

28

carry out the duties of a vacant PAS office in an acting capacity,

4

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without Senate confirmation. 1

2 N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 934 (2017).

3

The FVRA is the current version of Congress’s authorization for the President to

4 temporarily appoint acting officers. 5 U.S.C. § 3345 et seq. Section 3345(a) outlines

5 three categories of individuals who may become acting officers. The first category, the

6 first assistant to the office, “automatically fills the vacancy as an acting officer unless

7 someone else is appointed.” Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550,

8 557 (9th Cir. 2016) (citing 5 U.S.C. § 3345(a)(1)).

9

Signaled by the phrase “notwithstanding paragraph (1),” the

statute goes on to provide two ways the President may override

10

the automatic operation of (a)(1). First, (a)(2) permits the

President to designate an acting officer from the second

11

category of eligible candidates—prior Senate-confirmed

officers. Alternatively, under (a)(3), the President may

12

designate a within-agency officer or employee, provided that

the individual served in the Executive agency for not less than

13

ninety days in the year preceding the date of the vacancy in a

position with a rate of pay equal to or greater than the minimum

14

GS–15 rate.

15 Id. Each of the three categories in § 3345(a)1 is subject to the time limit in section 3346,

16 which generally provides that “the person serving as an acting officer as described under

17 section 3345 may serve in the office—for no longer than 210 days beginning on the date

18 the vacancy occurs.” 5 U.S.C. § 3346(a)(1).

19

Next, section 3347, the exclusivity provision, states that sections 3345 and 3346

20 are the exclusive means for temporarily authorizing an acting officer to perform the

21 functions and duties of any office subject to Senate confirmation. 5 U.S.C. § 3347(a).

22 However, section 3347 carves out an exception to the exclusivity provision for “a

23 statutory provision” that either designates an officer or employee to perform the functions

24 and duties of an office or expressly authorizes the President, a court, or the head of an

25

26

1 The three categories in § 3345(a) are also subject to the limitations of § 3345(b). “Subsection (b)(1) . . . precludes someone from continuing to serve as an acting officer

27

after being nominated to the permanent position, unless he or she had been the first assistant for ninety days of the prior year.” Hooks, 816 F.3d at 558 (citing 5 U.S.C.

28

§ 3345(b)(1)). There is no allegation that the President nominated McAleenan for the permanent Secretary position and subsection (b)(1) does not appear to apply here.

5

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1 Executive department to designate such an officer or employee. 5 U.S.C. § 3347(a)(1).

2 “Accordingly, when such an agency-specific statute exists, the FVRA is no longer the

3 ‘exclusive’ means, but rather is ‘a means’ of selecting a person to serve in an acting

4 capacity for a vacant PAS office.” Casa de Md., Inc. v. Wolf, — F. Supp. 3d —, 2020 WL

5 5500165, at *16 (D. Md. Sept. 11, 2020) (citing Hooks, 816 F.3d at 556; Guedes v.

6 Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 143 (D.D.C.

7 2019) (“Agency-specific statutes like the AG Act were expected to operate alongside the

8 FVRA, not to displace it”), aff’d on other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per

9 curiam)).

10

On December 9, 2016, President Obama signed an executive order in which he

11 exercised his authority under the FVRA, 5 U.S.C. § 3345, to designate in advance the

12 order of succession to perform the functions and duties of the office of the Secretary of

13 Homeland Security. See Executive Order 13753, 81 Fed. Reg. 90667, 90667 (Dec. 14,

14 2016). On December 15, 2016, former DHS Secretary Jeh Johnson signed and issued

15 Revision 8 to DHS Delegation No. 00106 that implemented Executive Order 13753.

16 Revision 8 contained two relevant provisions. Section II.A provided for an order of

17 succession, stating “[i]n the case of the Secretary’s death, resignation, or inability to

18 perform the functions of the Office, the orderly succession of officials is governed by

19 Executive Order 13753, amended on December 9, 2016.” Immigrant Legal Res. Ctr. v.

20 Wolf, — F. Supp. 3d —, 2020 WL 5798269, at *5 (N.D. Cal. Sept. 29, 2020). Section II.B

21 authorized delegation of authority in certain situations: “I hereby delegate to the officials

22 occupying the identified positions in the order listed (Annex A), my authority to exercise

23 the powers and perform the functions and duties of my office, to the extent not otherwise

24 prohibited by law, in the event I am unavailable to act during a disaster or catastrophic

25 emergency.” Id.

26

At the time Secretary Johnson issued Revision 8 to Delegation No. 00106, the

27 FVRA provided the exclusive means to appoint an acting secretary. See Opp. at 4 n.2;

28 see also 5 U.S.C. § 3347. Under the FVRA, only the president had the authority to

6

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1 designate an order of succession. See 5 U.S.C. § 3345(a)(2)–(3) (“[T]he President (and

2 only the President) may direct a person . . . .”). Thus, Executive Order 13753 codified the

3 President’s designated order of succession and Delegation No. 00106 cross referenced

4 that order. Further, the HSA provided that the Deputy Secretary of Homeland Security

5 would be the Secretary’s first assistant for purposes of the FVRA and provided no

6 authority to the Secretary to designate an order of succession. See 6 U.S.C.

7 § 113(a)(1)(A) (2012).

8

On December 23, 2016, Congress amended the HSA in two relevant ways. See

9 National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1903,

10 130 Stat. 2000, 2672 (2016). First, the HSA established that the Under Secretary for

11 Management would “serve as the Acting Secretary if by reason of absence, disability or

12 vacancy in office, neither the Secretary nor the Deputy Secretary is available to exercise

13 the duties of the Office of Secretary.” 6 U.S.C. § 113(g)(1). Second, the Secretary has

14 the authority, notwithstanding the FVRA, “to designate such other officers of the

15 Department in further order of succession to serve as Acting Secretary.” 6 U.S.C.

16 § 113(g)(2). As both parties acknowledge, (FAC ¶ 148; Opp. at 4–5), Secretary Nielsen

17 could amend the order of succession; the question is whether she in fact did amend the

18 order of succession.

19

a. Whether Secretary Nielsen Amended the Order of Succession

20

Similar to their motion to dismiss, defendants’ opposition to the motion for

21 reconsideration asserts that, prior to her resignation in April 2019, Secretary Nielsen

22 issued an order of succession pursuant to her section 113(g)(2) authority that effectively

23 designated McAleenan as next in line to assume the role of acting secretary. Opp. at 2.

24 Before addressing the parties’ arguments on this issue, the court will detail the substance

25 of Secretary Nielsen’s order.

26

On April 9, 2019, Secretary Nielsen signed a memorandum prepared by John M.

27 Mitnick, the DHS General Counsel, that acknowledged the Secretary’s authority “set forth

28 in section 113 of title 6, United States Code” and summarized that Secretary Nielsen

7

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1 “expressed [her] desire to designate certain officers of the Department of Homeland

2 Security (DHS) in order of succession to serve as Acting Secretary.” Dkt. 166-3 at 2.2

3 The memo stated “[b]y approving the attached document, you will designate your desired

4 order of succession for the Secretary of Homeland Security in accordance with your

5 authority pursuant to Section 113(g)(2), of title 6, United States Code.” Id. The

6 attachment to the memorandum stated:

7

By the authority vested in me as Secretary of Homeland

Security, including the Homeland Security Act of 2002, 6 U.S.C.

8

§ 113(g)(2), I hereby designate the order of succession for the

Secretary of Homeland Security as follows: Annex A of DHS

9

Orders of Succession and Delegations of Authorities for Named

Positions, Delegation No. 00106, is hereby amended by striking

10

the text of such Annex in its entirety and inserting the following

in lieu thereof:

11

12 Id. at 3. The attachment then describes the replacement text for Annex A: “Annex A.

13 Order for Delegation of Authority by the Secretary of the Department of Homeland

14 Security” and includes a list of eighteen positions. Id.

15

On April 10, 2020, DHS updated Delegation No. 00106 to reflect Secretary

16 Nielsen’s order. This update, Revision 8.5, did not change the text of section II.A

17 (pertaining to order of succession) or section II.B (pertaining to delegation of authority).

18 Revision 8.5 did, however, include the updated Annex A that was attached to Secretary

19 Nielsen’s April 9th order. See Dkt. 167-1 at 2, 6. When Secretary Nielsen resigned, the

20 office of the Deputy Secretary was vacant, and the Under Secretary of Management

21 resigned the same day as Nielsen. See Dkt. 183-3 at 8. At the time, McAleenan was

22 serving in the Senate-confirmed role of CBP Commissioner and assumed the role of DHS

23 Acting Secretary. According to Annex A of Revision 8.5 to Delegation No. 00106, the

24 CBP Commissioner was third in line, but according to Executive Order 13753, the CBP

25 Commissioner was seventh in line of succession. The divergence between Annex A’s

26

27

2 Pin citations to Secretary Nielsen’s order, (Dkt. 166-3), Revision 8.5 to Delegation No. 00106, (Dkt. 167-1), the GAO Opinion, (Dkt. 183-3), and Acting Secretary Wolf’s memo,

28

(Dkt. 186), refer to the electronically stamped ECF page numbers at the top of each page.

8

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1 order and the order established by Executive Order 13753 is the focus of the parties’

2 arguments here.

3

Defendants urge the court to reconsider its prior determination that Secretary

4 Nielsen’s order did not alter the order of succession. Defendants’ argument relies on the

5 distinction between the terms “order of succession” and “delegation of authority.”

6 Defendants explain that section 113(g)(2) empowers the Secretary to designate an order

7 of succession, while section 112(b)(1) empowers the Secretary to delegate his or her

8 authority to other officials, even when the Secretary continues to occupy his or her office.

9 Opp. at 3. According to defendants, Secretary Nielsen’s April 9th order sets forth an

10 order of succession because the document only refers to amending DHS’s “order of

11 succession,” not a delegation of authority. Id. Defendants also rely on the fact that the

12 order references section 113(g)(2), which empowers the Secretary to designate an order

13 of succession, in three separate locations demonstrating that the April 9th order intended

14 to establish a new order of succession pursuant to section 113(g)(2). Id. at 3–4.

15

Defendants also advance other arguments. They assert that Annex A performed

16 two separate functions; it designated the order of succession and it amended the list of

17 officials for delegation of authority. Id. at 4. Next, they contend that Secretary Nielsen

18 “designate[d] the order of succession” and the use of the term “designation”—rather than

19 the term “delegation”—confirms that the amended Annex A was a designation of the

20 order of succession. Id. at 5. Finally, defendants argue that the court should defer to

21 DHS’s interpretation of Secretary Nielsen’s order. Id. at 6.

22

In reply, plaintiffs first contend that defendants’ opposition is essentially a motion

23 for reconsideration filed by defendants without requesting the court’s permission to file

24 such a motion in violation of Civil Local Rule 7-9(a). Reply at 4–5. With respect to the

25 substance of defendants’ opposition, plaintiffs argue that the plain text of Secretary

26 Nielsen’s order only changed Annex A but did not amend the portion of Delegation No.

27 00106 providing for succession according to Executive Order 13753. Id. at 7. Plaintiffs

28 characterize defendants’ argument as premised on disregarding the plain text of the

9

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1 order and relying instead on out-of-context prefatory language or surrounding

2 circumstances to divine what Secretary Nielsen intended. Id. at 8. They also cite two

3 district court opinions that have likewise determined that Secretary Nielsen did not alter

4 the order of succession. Id. at 9–10. Plaintiffs also point out that section 113(g)(2) does

5 not necessarily apply only in cases of succession due to vacancy and, when read with

6 section 113(g)(1), also applies to circumstances where the Secretary is not available to

7 exercise the duties of the office due to absence or disability. Id. at 12.

8

The court rejects defendants’ arguments for several reasons. First, the court

9 agrees with plaintiffs that defendants’ opposition is a de facto motion for reconsideration

10 for which defendants did not request the court’s permission to file. Moreover, defendants

11 are not relying on new evidence, arguing the court committed clear error, or that there

12 was a change in law to support their arguments; rather, they take issue with the court’s

13 prior ruling, putting forward similar arguments as those previously advanced. As a

14 general rule, a motion for reconsideration “may not be used to raise arguments or present

15 evidence for the first time when they could reasonably have been raised earlier in the

16 litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)

17 (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). That rule

18 applies here as defendants’ arguments could have been raised in their motion to dismiss.

19 Defendants’ failure to request leave to file a motion for reconsideration, combined with

20 the fact that defendants have not presented a basis to grant such reconsideration, is

21 sufficient grounds to reject their arguments. Given the importance of the issues and the

22 fact that the ultimate disposition of this motion does not prejudice plaintiffs, the court

23 briefly addresses the substance of defendants’ arguments.

24

Second, as discussed in the court’s prior order, the plain language of Nielsen’s

25 order is clear and unambiguous. As a general rule of interpretation, “[w]here the

26 language is plain and admits of no more than one meaning the duty of interpretation does

27 not arise, and the rules which are to aid doubtful meanings need no discussion.” Carson

28 Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 878 (9th Cir. 2001) (en banc) (quoting

10

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1 Caminetti v. United States, 242 U.S. 470, 485 (1917)); see also Safe Air for Everyone v.

2 U.S. EPA, 488 F.3d 1088, 1097 (9th Cir. 2007) (applying plain meaning rule to

3 regulations).3 Secretary Nielsen’s order amended Annex A by stating, “I hereby

4 designate the order of succession for the Secretary of Homeland Security as follows:

5 Annex A of . . . Delegation No. 00106, is hereby amended by striking the text of such

6 Annex in its entirety and inserting the following in lieu thereof.” Dkt. 166-3 at 3 (emphasis

7 added). The specific change made by the order was to strike the prior version Annex A

8 in its entirety and replace it with an amended Annex A. The order did not amend the

9 circumstances that would trigger Annex A’s application; that is, it did not modify section

10 II.A or II. B of Delegation No. 00106. Revision 8.5 to Delegation No. 00106, released

11 after Secretary Nielsen’s order, is persuasive contemporaneous evidence that the

12 replacement of Annex A was the only such change effectuated by the order.

13

In light of the plain meaning, defendants’ arguments concerning the surrounding

14 references to order of succession are unpersuasive. As a general principle, “prefatory

15 clauses or preambles cannot change the plain meaning of the operative clause.”

16 Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1978 (2016) (citing Yazoo &

17 Miss. Valley R. Co. v. Thomas, 132 U.S. 174, 188 (1889)). As the district court in Casa

18 de Maryland recognized, the memo prepared by the DHS general counsel constitutes

19 such a prefatory clause or preamble and the memo does not detract from the operative

20 language that altered only Annex A. See Casa de Md., 2020 WL 5500165, at *22.

21 Further, as noted in the prior order, the fact that on November 8, 2019, McAleenan

22 purported to revise Delegation No. 00106 by amending Section II.A to explicitly reference

23 Annex A in cases of resignation, instead of Executive Order 13753, confirms that

24 Nielsen’s revision did not do so. See Dkt. 177 at 25–26; see also Casa de Md., 2020 WL

25

26 3 The court notes that neither Secretary Nielsen’s order nor Delegation No. 00106 are

27

statutes or regulations. Yet, as defendants pointed out in their reply in support of the motion to dismiss, it is appropriate to apply rules of statutory construction to

28

administrative orders delegating authority. See Dkt. 172 at 14 & n.7 (citing Crowell v. IRS (In re Crowell), 258 B.R. 885, 889 (E.D. Tenn. 2001)).

11

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1 5500165, at *21 (“McAleenan next amended Delegation Order 00106 on November 8,

2 2019. But unlike Nielsen’s amendment, McAleenan actually changed the order of

3 succession applicable in the event of vacancy . . . .”).

4

Third, subsequent to this court’s prior order, three district courts have examined

5 this precise question and have also concluded that Secretary Nielsen’s April 9th

6 amendment only changed Annex A but did not amend the order of succession in cases of

7 resignation. See Batalla Vidal v. Wolf, — F. Supp. 3d —, 2020 WL 6695076, at *9

8 (E.D.N.Y. Nov. 14, 2020); Immigrant Legal Res. Ctr., 2020 WL 5798269, at *7–8; Casa

9 de Md., 2020 WL 5500165, at *22–23. On August 14, 2020, the GAO issued an opinion

10 that examined whether Acting Secretary Wolf had validly assumed the title of Acting

11 Secretary. Dkt. 183-3 at 2. As a necessary predicate to determining whether Wolf was

12 validly appointed, the GAO examined whether McAleenan was validly appointed as

13 Acting Secretary following the resignation of then Secretary Nielsen. Similar to this

14 court’s prior order, the GAO concluded that Secretary Nielsen’s April 9th order only

15 amended Annex A but did not amend the order of succession established in Executive

16 Order 13753. Id. at 8. These opinions are persuasive and support the court’s

17 interpretation.

18

Fourth, the court need not defer to defendants’ interpretation of the April 9th order.

19 While courts have sometimes “deferred to ‘official staff memoranda’ that were ‘published

20 in the Federal Register[,]’ . . . . [that] interpretation must at least emanate from those

21 actors, using those vehicles, understood to make authoritative policy in the relevant

22 context.” Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019). In this case, the court assumes

23 the Secretary’s order and the memo attached to the order are authoritative. Yet,

24 defendants are asking the court to defer to their interpretation of the order offered in the

25 context of this litigation, not the Department’s contemporaneous explanation. See Dep’t

26 of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1909 (2020) (“The

27 functional reasons for requiring contemporaneous explanations apply with equal force

28 regardless whether post hoc justifications are raised in court by those appearing on

12

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1 behalf of the agency or by agency officials themselves.” (citations omitted)). In other

2 words, DHS has not issued an interpretation of Secretary Nielsen’s order, rather the

3 interpretation is a litigation position to which the court owes no deference. See United

4 States v. Trident Seafoods Corp., 60 F.3d 556, 559 (9th Cir. 1995) (“No deference is

5 owed when an agency has not formulated an official interpretation of its regulation, but is

6 merely advancing a litigation position.”).

7

Therefore, the court reaffirms its prior findings that former Secretary Nielsen’s April

8 9th order did not alter the Department’s order of succession in cases of resignation and

9 that Executive Order 13753 continued to govern the order of succession at the time of

10 Secretary Nielsen’s resignation.

11

b. Whether McAleenan’s Appointment Was Valid Under the FVRA

12

Assuming Executive Order 13753 governed the order of succession, the court next

13 examines whether McAleenan validly assumed the role of Acting Secretary pursuant to

14 that executive order and the FVRA. In its prior order, the court determined that, despite

15 the order of succession established in section (a) of Executive Order 13753, subsection

16 (b)(ii) reserved to the President the discretion to depart from subsection (a) as long as the

17 FVRA permitted McAleenan’s appointment. Dkt. 177 at 26. Because plaintiffs did not

18 allege that McAleenan’s appointment was invalid under the FVRA, they failed to state a

19 claim. Id. Plaintiffs move for reconsideration of this finding.

20

Plaintiffs contend that, subsequent to this court’s finding, new evidence

21 demonstrates that defendants have taken the position that the President did not appoint

22 McAleenan as Acting Secretary pursuant to his FVRA authority. Mtn. at 7. According to

23 plaintiffs, the court’s prior legal conclusion relied on a factual premise that defendant did

24 not advance before the court and have now admitted was incorrect. Id. For their part,

25 defendants state that plaintiffs are correct that the President did not appoint Secretary

26 McAleenan under the FVRA. Opp. at 2. They offer no further argument on this point.

27

As stated previously, President Obama issued Executive Order 13753 as an

28 advance exercise of his FVRA authority. See Executive Order 13753 (“By the authority

13

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1 vested in me as President by the Constitution and the laws of the United States of

2 America, including the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et

3 seq., . . . .”). Section (a) establishes the President’s designated order of succession and

4 subsection (b)(ii) reserves to the President discretion to depart from section (a) so long

5 as that departure meets the requirements of the FVRA. The relevant inquiry here is

6 therefore whether the President exercised that discretion under section (b)(ii) because

7 there is no dispute that under the order of succession in section (a), there was one

8 individual ahead of McAleenan at the time of Secretary Nielsen’s resignation.4

9

As described in plaintiffs’ new evidence and in defendants’ opposition to the

10 motion for reconsideration, defendants have repeatedly represented that McAleenan was

11 appointed pursuant to the HSA and not the FVRA. See, e.g., Dkt. 183-2 at 40:5–9; Opp.

12 at 2 (“Plaintiffs are correct that the President did not designate Mr. McAleenan as Acting

13 Secretary under the [FVRA] . . . .”). Other opinions have arrived at a similar outcome,

14 though no opinion appears to have considered the implications of subsection (b)(ii). For

15 example, the district court in Casa de Maryland determined that the order of succession

16 in section (a) of Executive Order 13753 dictated the order of succession. See Casa de

17 Md., 2020 WL 5500165, at *18 (“McAleenan’s leapfrogging over Director Krebs therefore

18 violated the agency’s own order of succession. From this record, the Court cannot help

19 but conclude that McAleenan assumed the role of Acting Secretary without lawful

20 authority.”). The GAO Report also applies section (a) without any discussion of the

21 President’s reserved discretion in subsection (b)(ii). See Dkt. 183-3 at 9 (“The first

22 previously confirmed official in the order of succession in E.O. 13753 was the Director of

23 CISA. However, instead of following the order of succession in E.O. 13753, DHS applied

24 the one in Annex A.” (footnote omitted)).

25

26 4 As the GAO Opinion states, Christopher Krebs was serving in the Senate-confirmed

27

role of Director of the Cybersecurity and Infrastructure Security Agency, which was previously known as the Under Secretary for Protection and Programs. Dkt. 183-3 at 7

28

n.8, 9 n.11. The Under Secretary for Protection and Programs was fourth in the order of succession in Executive Order 13753.

14

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1

That said, it is not clear that the President failed to designate McAleenan as Acting

2 Secretary. In the FAC, plaintiffs allege that on April 7, 2019, President Trump tweeted

3 that McAleenan would assume the role of Acting Secretary. FAC ¶ 145. Indeed, the

4 President sent two tweets on April 7, 2019, stating:

5

Secretary of Homeland Security Kirstjen Nielsen will be leaving

her position, and I would like to thank her for her service. . . . I

6

am pleased to announce that Kevin McAleenan, the current

U.S. Customs and Border Protection Commissioner, will

7

become Acting Secretary for @DHS.gov. I have confidence

that Kevin will do a great job!

8

9 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 7, 2019),

10 https://twitter.com/realDonaldTrump/status/1115011884154064896?s=20,

11 https://twitter.com/realDonaldTrump/status/1115011885303312386?s=20.5

12

Of course, these tweets lack the formality of an executive order, but in other

13 instances, courts have noted that the President’s tweets are akin to official statements

14 and government speech. See Knight First Amendment Inst. at Columbia Univ. v. Trump,

15 928 F.3d 226, 231 (2d Cir. 2019) (“The public presentation of the Account and the

16 webpage associated with it bear all the trappings of an official, state–run account. . . .

17 The President and multiple members of his administration have described his use of the

18 Account as official.”); see also id. at 239 (“Everyone concedes that the President’s initial

19 tweets (meaning those that he produces himself) are government speech.”).

20

At the very least then, there appears to be a factual conflict whether the

21 President’s tweets constituted a designation under section 3345(a)(2) or whether, as both

22 parties maintain, the President did not appoint Acting Secretary McAleenan under the

23 FVRA. That factual conflict cannot be resolved on a Rule 12(b)(6) motion and therefore

24 necessitates reconsideration of the court’s prior order granting defendants’ motion to

25 dismiss the third, fifth, and eighth claims. Further, if plaintiffs are correct that the

26

27

5 The Ninth Circuit has recognized that the President’s tweets are judicially noticeable pursuant to Federal Rule of Evidence 201 and, additionally, plaintiffs referred to the

28

tweets in their FAC. See Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir.), vacated and remanded on other grounds, 138 S. Ct. 377 (2017).

15

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1 President did not designate McAleenan as Acting Secretary, then they state a claim that

2 McAleenan’s appointment violated the FVRA, which again requires reconsideration of the

3 court’s prior order. Accordingly, the court will grant plaintiffs’ motion for reconsideration.

4

One final matter bears mention. On October 8, 2020, defendants filed a notice in

5 which they include a memorandum signed by Acting Secretary Wolf on October 7, 2020.

6 Dkt. 186. Defendants then filed a second notice on November 23, 2020 that includes a

7 second memorandum signed by Acting Secretary Wolf on November 16, 2020. Dkt. 187.

8 Both versions of the memo purport to affirm and ratify certain actions taken by former

9 Acting Secretary McAleenan, including the Rule. The court does not consider the notices

10 or attached memoranda for two reasons. First, Civil Local Rule 7-3(d) prohibits the filing

11 of “additional memoranda, papers or letters” once the reply brief is filed unless a party

12 receives the court’s approval. No such approval was sought here, and defendants’ filings

13 violate the Civil Local Rules. Second, whether Acting Secretary Wolf validly ratified the

14 Rule has no bearing on the narrow issue raised by plaintiffs’ motion for reconsideration,

15 that is, whether their new evidence warrants reconsideration of the court’s prior order

16 granting defendants’ motion to dismiss.

17

CONCLUSION

18

For the foregoing reasons, plaintiffs’ motion for reconsideration is GRANTED and

19 defendants’ motion to dismiss plaintiffs’ third, fifth, and eighth claims pertaining to

20 McAleenan’s appointment as Acting Secretary of Homeland Security is now DENIED.

21 The court’s prior order on the motion to dismiss will be amended accordingly.

22

IT IS SO ORDERED.

23 Dated: November 25, 2020

24

/s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

25

United States District Judge

26

27

28 16

 
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1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

LA CLINICA DE LA RAZA, et al.,

8

Plaintiffs,

Case No. 19-cv-04980-PJH

9

v.

10

DONALD J. TRUMP, et al.,

11

Defendants.

12

AMENDED ORDER GRANTING IN PART, DENYING IN PART, AND DEFERRING RULING IN PART ON MOTION TO DISMISS
Re: Dkt. No. 166

13

14

Before the court is defendants Donald J. Trump, the Department of Homeland

15 Security (“DHS”), the U.S. Citizenship and Immigration Service (“USCIS”), Chad Wolf,1

16 and Kenneth Cuccinelli’s (collectively “defendants”) motion to dismiss. The matter is fully

17 briefed and suitable for decision without oral argument. Having read the parties’ papers

18 and carefully considered their arguments and the relevant legal authority, and good

19 cause appearing, the court hereby rules as follows.

20

BACKGROUND

21

This case involves a challenge to the implementation of the final rule entitled

22 “Inadmissibility on Public Charge Grounds,” published by DHS on August 14, 2019. See

23 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“the

24 Rule”). On October 10, 2018, DHS began the rulemaking process to create a new

25 framework for the public charge assessment by publishing a Notice of Proposed

26

27 1 Kevin McAleenen was originally named in the complaint, (Dkt. 1, ¶ 48); however, the

28

FAC reflects the fact that Chad Wolf has replaced McAleenan as acting Secretary of Homeland Security.

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1 Rulemaking (“NPRM”). See Inadmissibility on Public Charge Grounds, 83 Fed. Reg.

2 51,114 (Oct. 10, 2018). The Rule was originally set to become effective on October 15,

3 2019.

4

Publication of the Rule resulted in several complaints filed in federal district courts

5 across the nation. Three such complaints were filed in the Northern District of California

6 and related before this court. Dkt. 24. The present motion involves one of the three

7 cases: La Clínica de la Raza, et al. v. Donald J. Trump, et al., Case No. 19-cv-04980-

8 PJH, wherein the La Clínica De La Raza and California Primary Care Association (the

9 two together are the “healthcare organizations”), Maternal and Child Health Access,

10 Farmworker Justice, Council on American Islamic Relations–California, African

11 Communities Together, Legal Aid Society of San Mateo County, Central American

12 Resource Center, and Korean Resource Center (the “legal organizations” and, together

13 with the healthcare organizations, the “organizational plaintiffs” or “plaintiffs”) filed a first

14 amended complaint (“FAC”) asserting eight causes of action: (1) Violation of the

15 Administrative Procedure Act (“APA”), 5 U.S.C. § 706—Contrary to Law; (2) Violation of

16 APA, 5 U.S.C. § 706—Arbitrary and Capricious; (3) Violation of APA, 5 U.S.C. § 706—

17 Arbitrary and Capricious; (4) Violation of APA, 5 U.S.C. § 706—Arbitrary and Capricious;

18 (5) Violation of the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345 et seq., and

19 DHS Organic Statute, 6 U.S.C. § 113; (6) Violation of the Federal Vacancies Reform Act,

20 5 U.S.C. § 3345 et seq.; (7) Violation of the Fifth Amendment; and (8) Declaratory

21 Judgment Act—Unlawfully Appointed Agency Director. Dkt. 161.

22

On October 11, 2019, this court issued a preliminary injunction enjoining

23 defendants from applying the Rule to any person residing in the City and County of San

24 Francisco, Santa Clara County, the States of California, Oregon, or Maine, the

25 Commonwealth of Pennsylvania, or the District of Columbia. Dkt. 131 at 92. Defendants

26 appealed the preliminary injunction on October 30, 2019. Dkt. 129. A three-judge panel

27

28 2

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1 of the Ninth Circuit stayed the preliminary injunction on December 5, 2019.2 Dkt. 141;

2 see City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 944 F.3d 773

3 (9th Cir. 2019). On February 18, 2020, the Ninth Circuit panel voted to deny plaintiffs-

4 appellees’ motions for reconsideration and for rehearing en banc. Dkt. 153. Other

5 district courts also issued preliminary injunctions prohibiting enforcement of the Rule, but

6 these were ultimately stayed by the Supreme Court. See Dep’t of Homeland Security v.

7 New York, 140 S. Ct. 599 (2020); Wolf v. Cook Cty., Illinois, 140 S. Ct. 681 (2020).

8 Accordingly, the Rule went into effect on February 24, 2020. Most recently, the district

9 court for the Southern District of New York enjoined the Rule as long as the government

10 has declared a public health emergency related to COVID-19. See New York v. Dep’t of

11 Homeland Sec., — F. Supp. 3d —, Nos. 19 Civ. 7777 (GBD), 19 Civ. 7993 (GBD), 2020

12 WL 4347264, at *14 (S.D.N.Y. July 29, 2020).

13

A broader summary of the relevant statutory framework and the changes

14 implemented by the Rule may be found in the court’s preliminary injunction order. Dkt.

15 131 at 6–10. To briefly summarize here, DHS promulgated the Rule pursuant to its

16 authority under the INA, 8 U.S.C. § 1101, et seq., which requires that all noncitizens

17 seeking to be lawfully admitted into the United States or to become lawful permanent

18 residents prove they are not inadmissible. 8 U.S.C. §§ 1361, 1225(a). A noncitizen may

19 be deemed inadmissible on any number of grounds, including that they are “likely at any

20 time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). The statute directs

21 immigration officials to form an opinion as to whether the applicant “is likely at any time to

22 become a public charge.” Id. In forming that opinion, immigration officers must consider

23 “at a minimum” five statutorily-defined factors: (1) age; (2) health; (3) family status; (4)

24 assets, resources, and financial status; (5) education and skills. 8 U.S.C.

25

26 2 The panel consolidated the three related cases before this court with a similar case

27

from the Eastern District of Washington. That court issued a nationwide injunction of the Rule on the same day as this court’s geographically limited preliminary injunction order.

28

Washington v. U.S. Dep’t of Homeland Security, 408 F. Supp. 3d 1191, 1224 (E.D. Wash. 2019).

3

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1 § 1182(a)(4)(B)(i). The Rule would define the term “public charge” and set out various

2 criteria for government officials as part of their totality of the circumstances determination.

3

DISCUSSION

4 A. Legal Standard

5

1. Rule 12(b)(1)

6

A federal court may dismiss an action under Federal Rule of Civil Procedure

7 12(b)(1) for lack of federal subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule

8 12(h)(3) similarly provides that a court “must dismiss the action” if it “determines at any

9 time that it lacks subject-matter jurisdiction.” Fed. R. Civ. P. 12(h)(3). “Federal courts are

10 courts of limited jurisdiction” and the burden of establishing subject matter jurisdiction

11 “rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

12 511 U.S. 375, 377 (1994) (citations omitted).

13

A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer,

14 373 F.3d 1035, 1039 (9th Cir. 2004). When the attack is facial, the court determines

15 whether the allegations contained in the complaint are sufficient on their face to invoke

16 federal jurisdiction. Id. Where the attack is factual, however, “the court need not

17 presume the truthfulness of the plaintiff’s allegations.” Id.

18

When resolving a factual dispute about its federal subject matter jurisdiction, a

19 court may review extrinsic evidence beyond the complaint without converting a motion to

20 dismiss into one for summary judgment. McCarthy v. United States, 850 F.2d 558, 560

21 (9th Cir. 1988) (holding that a court “may review any evidence, such as affidavits and

22 testimony, to resolve factual disputes concerning the existence of jurisdiction”); see also

23 Land v. Dollar, 330 U.S. 731, 735 n.4 (1947) (“[W]hen a question of the District Court’s

24 jurisdiction is raised . . . the court may inquire by affidavits or otherwise, into the facts as

25 they exist.”). “Once the moving party has converted the motion to dismiss into a factual

26 motion by presenting affidavits or other evidence properly brought before the court, the

27 party opposing the motion must furnish affidavits or other evidence necessary to satisfy

28 its burden of establishing subject matter jurisdiction.” Safe Air for Everyone, 373 F.3d at

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1 1039.

2

The Ninth Circuit has noted that “jurisdictional dismissals in cases premised on

3 federal-question jurisdiction are exceptional, and must satisfy the requirements specified

4 in Bell v. Hood, 327 U.S. 678 (1946).” Safe Air for Everyone, 373 F.3d at 1039 (quoting

5 Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983)). “In Bell, the

6 Supreme Court determined that jurisdictional dismissals are warranted ‘where the alleged

7 claim under the constitution or federal statutes clearly appears to be immaterial and

8 made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly

9 insubstantial and frivolous.’” Id. (quoting Bell, 327 U.S. at 682–83).

10

2. Rule 12(b)(6)

11

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the

12 legal sufficiency of the claims alleged in the complaint. Ileto v. Glock Inc., 349 F.3d 1191,

13 1199–1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that

14 a complaint include a “short and plain statement of the claim showing that the pleader is

15 entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule

16 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient

17 facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th

18 Cir. 2013).

19

While the court is to accept as true all the factual allegations in the complaint,

20 legally conclusory statements, not supported by actual factual allegations, need not be

21 accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The complaint must proffer

22 sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v.

23 Twombly, 550 U.S. 544, 555, 558–59 (2007).

24

“A claim has facial plausibility when the plaintiff pleads factual content that allows

25 the court to draw the reasonable inference that the defendant is liable for the misconduct

26 alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court

27 to infer more than the mere possibility of misconduct, the complaint has alleged—but it

28 has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ.

5

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1 P. 8(a)(2)). Where dismissal is warranted, it is generally without prejudice, unless it is

2 clear the complaint cannot be saved by any amendment. In re Daou Sys., Inc., 411 F.3d

3 1006, 1013 (9th Cir. 2005).

4

Review is generally limited to the contents of the complaint, although the court can

5 also consider documents “whose contents are alleged in a complaint and whose

6 authenticity no party questions, but which are not physically attached to the plaintiff’s

7 pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon

8 Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999), superseded by statute on

9 other grounds as stated in In re Quality Sys., Inc. Sec. Litig., 865 F.3d 1130 (9th Cir.

10 2017)); see also Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007) (“[A] court can

11 consider a document on which the complaint relies if the document is central to the

12 plaintiff’s claim, and no party questions the authenticity of the document.” (citation

13 omitted)). The court may also consider matters that are properly the subject of judicial

14 notice (Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001)), and exhibits

15 attached to the complaint (Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

16 1542, 1555 n.19 (9th Cir. 1989)).

17 B. Analysis

18

1. Standing

19

Federal courts may adjudicate only actual cases or controversies, U.S. Const.

20 art. III, § 2, and may not render advisory opinions as to what the law ought to be or

21 affecting a dispute that has not yet arisen. Aetna Life Ins. Co. of Hartford, Conn. v.

22 Haworth, 300 U.S. 227, 240 (1937). Article III’s “standing” requirements limit the court’s

23 subject matter jurisdiction. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004)

24 (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998)). The

25 burden of establishing standing rests on the party asserting the claim. Renne v. Geary,

26 501 U.S. 312, 316 (1991) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

27 546 n.8 (1986)). “In order to establish Article III standing, a plaintiff must have (1)

28 suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the

6

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1 defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

2 California v. Trump, 963 F.3d 926, 935 (9th Cir. 2020) (citing Lujan v. Defs. of Wildlife,

3 504 U.S. 555, 560–61 (1992)). “[A]t the pleading stage, the plaintiff must ‘clearly . . .

4 allege facts demonstrating’ each element.” Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1547

5 (2016) (second alteration in original) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).

6

“At least one plaintiff must have standing to seek each form of relief requested,

7 and that party bears the burden of establishing the elements of standing with the manner

8 and degree of evidence required at the successive stages of the litigation.” E. Bay

9 Sanctuary Covenant v. Trump (“E. Bay Sanctuary I”), 932 F.3d 742, 763–64 (9th Cir.

10 2018) (internal quotation marks and citations omitted). They “need only establish a risk

11 or threat of injury to satisfy the actual injury requirement.” Id.; see also Dep’t of

12 Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (noting that future injuries to

13 states “may suffice if the threatened injury is certainly impending, or there is a substantial

14 risk that the harm will occur” (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149,

15 158 (2014))).

16

Organizations can demonstrate standing in two ways. First, they can show “that

17 the challenged ‘practices have perceptibly impaired [their] ability to provide the services

18 [they were] formed to provide.’” E. Bay Sanctuary I, 932 F.3d at 765 (alterations in

19 original) (quoting El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review,

20 959 F.2d 742, 748 (9th Cir. 1991)). “[A] diversion-of-resources injury is sufficient to

21 establish organizational standing for purposes of Article III if the organization shows that,

22 independent of the litigation, the challenged policy frustrates the organization’s goals and

23 requires the organization to expend resources in representing clients they otherwise

24 would spend in other ways.” Id. (internal quotation marks and citations omitted).

25 Second, organizations can also demonstrate that a government policy “will cause them to

26 lose a substantial amount of funding. ‘For standing purposes, a loss of even a small

27 amount of money is ordinarily an injury.’” Id. at 766–67 (internal quotation marks omitted)

28 (quoting Czyzewski v. Jevic Holding Corp., 137 U.S. 973, 983 (2017)).

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1

In the preliminary injunction order, the court found that the harm alleged by

2 plaintiffs was sufficient to create standing. Dkt. 131 at 85. The court noted evidence

3 from both the healthcare organizations and the legal organizations that the Rule would

4 cause them to either divert resources from their core missions or would frustrate the

5 purpose of the organization. Id. at 84–85. The court also found persuasive evidence that

6 plaintiffs would have to divert funding because clients who may still be eligible for relief

7 would require additional time and resources from plaintiffs thereby depleting funds that

8 would be used elsewhere. Id. at 85. Some plaintiffs would have increased operational

9 costs in order to address the impact of the Rule on their services. Id.

10

In their present motion, defendants assert that plaintiffs have not demonstrated

11 that they would have suffered some other injury if they had not diverted resources to

12 counteracting the problem caused by the government action. Mtn. at 6. More

13 specifically, while plaintiffs allege that they have expended or will expend additional

14 resources, defendants contend that plaintiffs have not identified some other injury they

15 will suffer if they do not divert resources towards addressing their concerns. Id. Plaintiffs

16 argue that they have sufficiently alleged that they have diverted and will divert resources

17 to counteract the effects of the Rule. Opp. at 4. They also contend that they will face

18 direct financial consequences from the Rule because a decrease in the use of benefits

19 and plaintiffs’ services will reduce funding streams connected to provision of services. Id.

20

Defendants’ renewed standing argument does not alter this court’s prior findings.

21 Defendants cite La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest,

22 624 F.3d 1083, 1088 (9th Cir. 2010), for the proposition that an organization “must . . .

23 show that it would have suffered some other injury if it had not diverted resources to

24 counteracting the problem.” Organizations “cannot manufacture the injury by incurring

25 litigation costs or simply choosing to spending money fixing a problem that otherwise

26 would not affect the organization at all.” Id. (citation omitted). Plaintiffs have adequately

27 alleged that the Rule will cause them to divert resources that would otherwise be spent

28 helping some clients and providing other core services and redirecting those resources to

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1 help clients who choose to apply for benefits and may be subject to the Rule. First,

2 plaintiffs demonstrate that they will be injured by the Rule if they do nothing. For

3 example, La Clínica produced evidence that the Rule would increase the organization’s

4 no-show rate due to a decrease in patients seeking care. Dkt. 35-5, ¶ 16. La Clínica

5 went on to explain that it receives a large portion of its revenue from Medi-Cal such that

6 disenrollment or non-enrollment in Medi-Cal would negatively affect La Clínica’s revenue.

7 This harm is and will continue to occur regardless of whether plaintiffs divert resources to

8 respond to the Rule.

9

Next, in response to the pending loss of resources, plaintiffs demonstrate that they

10 diverted and will continue to divert resources. For example, La Clínica presented

11 evidence that it would have to retrain staff on a new enrollment process in response to

12 the Rule, staff that would otherwise be treating patients. Id. ¶ 21. One of plaintiff

13 California Primary Care Association’s (“CPCA”)3 members, Asian Health Services,

14 presented evidence that at the time of the Rule’s promulgation, it had spent $500,000

15 developing a national education campaign and expected to spend an additional $500,000

16 once the Rule was released. Dkt. 35-11, ¶¶ 26–29. This money would have been used

17 to advance other community organizing priorities. Accordingly, plaintiffs have sufficiently

18 demonstrated standing under a diversion of resources theory.

19

Separately, plaintiffs have also alleged that they will suffer direct financial

20 consequences as a result of the Rule because the Rule will cause a decrease in the use

21 of plaintiffs’ services and a corresponding reduction in funding streams connected to

22 provision of those services. See FAC ¶¶ 17, 21, 25, 33, 38, 40; Dkt. 35-5, ¶ 18 (La

23 Clínica’s CEO stating “La Clínica expects to lose a significant amount of funding and

24

25

3 Defendants challenge CPCA’s associational standing on the grounds that CPCA has neither alleged nor provided evidence of associational standing. Mtn. at 5 n.2. CPCA is

26

an association of various organizations and is bringing suit on behalf of its members. FAC ¶ 18. In its prior order, the court determined that La Clínica and CPCA’s member,

27

Asian Health Services, had diverted resources such that they had standing. Dkt. 131 at 84. Other than citing a case for the requirements for associational standing, defendants

28

put forward no further argument explaining why the court’s prior finding should not apply here.

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1 revenue if the Rule is implemented”). As cited above, organizations “can demonstrate

2 organizational standing by showing that the Rule will cause them to lose a substantial

3 amount of funding.” E. Bay Sanctuary I, 932 F.3d at 766–67. Defendants make no effort

4 to challenge plaintiffs’ allegations or evidence that plaintiffs will suffer a loss in funding.

5

Instead, defendants only argue that any loss in funding would be commensurate

6 with a decrease in the quantity of services provided such that plaintiffs have not suffered

7 any net financial harm. Reply at 1–2. Defendants’ argument contorts the injury-in-fact

8 requirement beyond what is required by plaintiffs and cite no authority that a plaintiff not

9 only has to show injury but also a “net” injury. The Ninth Circuit rejected a similar

10 argument that a hospice provider could only have standing to challenge a regulation if the

11 provider suffered a net increase in its overpayment liability. See L.A. Haven Hospice,

12 Inc. v. Sebelius, 638 F.3d 644, 657 (9th Cir. 2011); see also Aluminum Co. of Am. v.

13 Bonneville Power Admin., 903 F.2d 585, 590 (9th Cir. 1989) (“There is harm in paying

14 rates that may be excessive, no what the California utilities may have saved.”). Simply

15 put, defendants’ argument is not the test for standing. “[A]n organization that suffers a

16 decreased ‘amount of business’ and ‘lost revenue’ due to a government policy ‘easily

17 satisf[ies] the injury in fact standing requirement.’” E. Bay Sanctuary I, 932 F.3d at 767

18 (second alteration in original) (internal quotation marks omitted) (quoting Constr. Indus.

19 Ass’n Sonoma Cty. v. City of Petaluma, 522 F.2d 897, 903 (9th Cir. 1975)). By

20 demonstrating a reduction in funding, plaintiffs have sufficiently alleged the Rule has and

21 will continue to harm them.

22

For the foregoing reasons, the court DENIES defendants’ motion with respect to

23 standing.

24

2. Ripeness

25

“Ripeness is an Article III doctrine designed to ensure that courts adjudicate live

26 cases or controversies and do not ‘issue advisory opinions [or] declare rights in

27 hypothetical cases.’ A proper ripeness inquiry contains a constitutional and a prudential

28 component.” Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1153 (9th Cir. 2017)

10

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1 (alteration in original) (quoting Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d

2 1134, 1138 (9th Cir. 2000) (en banc)).

3

“For a case to be ripe, it must present issues that are definite and concrete, not

4 hypothetical or abstract. Constitutional ripeness is often treated under the rubric of

5 standing because ripeness coincides squarely with standing’s injury in fact prong.” Id.

6 (internal quotation marks and citation omitted); see Thomas, 220 F.3d at 1138–39

7 (“Sorting out where standing ends and ripeness begins is not an easy task. . . . [I]n

8 ‘measuring whether the litigant has asserted an injury that is real and concrete rather

9 than speculative and hypothetical, the ripeness inquiry merges almost completely with

10 standing.’” (citation omitted)). Allegations that a “threat” to a “concrete interest is actual

11 and imminent” are sufficient to allege “an injury in fact that meets the requirements of

12 constitutional ripeness.” Bishop Paiute Tribe, 863 F.3d at 1154. Therefore, if plaintiffs

13 satisfy the Article III standing requirements under Lujan v. Defenders of Wildlife,

14 addressed above, the action here is ripe. See, e.g., Thomas, 220 F.3d at 1139

15 (“Whether the question is viewed as one of standing or ripeness, the Constitution

16 mandates that prior to our exercise of jurisdiction there exist a constitutional ‘case or

17 controversy,’ that the issues presented are ‘definite and concrete, not hypothetical or

18 abstract.’ . . . We need not delve into the nuances of the distinction between the injury in

19 fact prong of standing and the constitutional component of ripeness: in this case, the

20 analysis is the same.” (citations omitted)).

21

“In evaluating the prudential aspects of ripeness, our analysis is guided by two

22 overarching considerations: ‘the fitness of the issues for judicial decision and the

23 hardship to the parties of withholding court consideration.’” Id. at 1141 (quoting Abbott

24 Labs. v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v.

25 Sanders, 430 U.S. 99 (1977)). When the question presented “is ‘a purely legal one’” that

26 “constitutes ‘final agency action’ within the meaning of § 10 of the APA,” that suggests

27 the issue is fit for judicial decision. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S.

28 803, 812 (2003). However, an issue may not be ripe for review if “further factual

11

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1 development would ‘significantly advance our ability to deal with the legal issues

2 presented.’” Id. (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59,

3 82 (1978)).

4

In this case, the court has determined that plaintiffs have standing, therefore, it

5 follows that the case is constitutionally ripe for adjudication. See Thomas, 220 F.3d at

6 1139. The court has not previously addressed prudential ripeness. Defendants contend

7 that plaintiffs’ claims fail the prudential ripeness standard because the claims are

8 premised on speculation about the Rule’s operation in practice and further factual

9 development is required. Mtn. at 7–8. Plaintiffs assert that the prudential ripeness

10 standard is met because the Rule is final and they are suffering injuries. Opp. at 4.

11

“Determining whether administrative action is ripe for judicial review requires [a

12 court] to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to

13 the parties of withholding court consideration.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808

14 (citing Abbott Labs., 387 U.S. at 149). When considering whether issues are fit for

15 review, the question should be a “purely legal one” and the agency action in question

16 should constitute a “‘final agency action’ within the meaning of § 10 of the APA.” Id. at

17 812 (quoting Abbott Labs., 387 U.S. at 149).

18

The second factor examines “the hardship to the parties of withholding court

19 consideration.” Id. at 808. Generally, a showing of hardship requires demonstrating that

20 the regulation in question creates “adverse effects of a strictly legal kind.” Id. at 809

21 (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)). Such

22 adverse effects do not arise if the regulation in question “do[es] not command anyone to

23 do anything or to refrain from doing anything; [it] do[es] not grant, withhold, or modify any

24 formal legal license, power, or authority; [it] do[es] not subject anyone to any civil or

25 criminal liability; [and it] create[s] no legal rights or obligations.” Id. (alterations in original)

26 (quoting Ohio Forestry Ass’n, 523 U.S. at 733).

27

Here, the challenge to the Rule in this case “is a purely legal one,” i.e., whether the

28 INA was properly construed and implemented by DHS. See Abbott Labs., 387 U.S. at

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1 149 (noting that “whether the statute was properly construed by the Commissioner” to be

2 a purely legal challenge). Next, the Rule constitutes a “rule” as defined by the APA. See

3 5 U.S.C. § 551(4), (13) (defining “agency action” and “rule”). The text of the Rule

4 confirms that its promulgation was an agency action. See 84 Fed. Reg. at 41,294 (“This

5 rule changes how the Department of Homeland Security (DHS) interprets and

6 implements the public charge ground of inadmissibility.”). This factor indicates the Rule

7 is ripe for review.

8

With respect to hardship, the Rule imposes potential adverse effects of a strictly

9 legal kind. If an alien falls within the Rule’s definition of a public charge as determined by

10 an immigration officer, then he or she is inadmissible. In other words, the Rule defines a

11 legal right—admissibility to the United States. Concurrently, it also defines the legal

12 powers and authorities of federal government officials in evaluating whether an alien is

13 admissible. The Rule does not define the legal rights of plaintiffs or create any legal

14 obligations directly impacting them. However, the potential adverse effects on individuals

15 cause a direct harm to plaintiffs, as discussed above with regard to plaintiffs’ standing.

16 For example, fewer individuals using plaintiffs’ services results in a corresponding

17 reduction in funding to plaintiffs.

18

Defendants argue that plaintiffs’ claims are all premised on speculation about the

19 potential future effects of the Rule and disagreement with DHS’s predictions based on

20 available evidence. Mtn. at 7–8. The Rule went into effect on February 24, 2020 after

21 the Supreme Court stayed the final remaining preliminary injunction enjoining the Rule.

22 Plaintiffs’ FAC was filed May 20, 2020. Thus, they have had a period of approximately

23 three months to assess the impact of the Rule. The FAC alleges current harms

24 stemming from the Rule. For example, plaintiff Farmworker Justice (“FJ”) alleges that

25 “[b]eginning in March 2020, FJ has been addressing concerns that farmworkers have

26 about the implications of the public charge Regulation when seeking to take action to

27 prevent or treat COVID-19.” FAC ¶ 31. Plaintiff Maternal and Child Health Access

28 (“MCHA”) alleges the “Regulation is frustrating MCHA’s mission by reducing access to

13

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1 nutrition, medical care, and adequate housing. Immigrant families who MCHA serves are

2 already disenrolling from public benefit programs, such as SNAP and Medicaid, based on

3 fears that using those programs will affect their future immigration relief options.” Id. ¶ 27

4 (emphasis added).

5

Plaintiffs’ challenge is not speculative and further factual development of the

6 Rule’s impact is not needed for purposes of ripeness. Accordingly, the court DENIES

7 defendants’ motion with respect to ripeness.

8

3. Zone of Interests

9

In order to succeed on the merits, plaintiffs must be within the zone of interests of

10 the statute that forms the basis of their challenge. The zone of interests analysis asks

11 “whether Congress created a private cause of action in legislation,” Organized Vill. of

12 Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 964 (9th Cir. 2015) (en banc), such that “this

13 particular class of persons has a right to sue under this substantive statute,” Lexmark

14 Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). It is “not a

15 question of Article III standing” and “this inquiry . . . ‘does not implicate subject-matter

16 jurisdiction . . . .’” Organized Vill. of Kake, 795 F.3d at 964 (quoting Lexmark, 572 U.S. at

17 128 & n.4). “[I]n the APA context, . . . the [zone of interests] test is not ‘especially

18 demanding.’” Lexmark, 572 U.S. at 130 (quoting Match-E-Be-Nash-She-Wish Band of

19 Pottawatomi Indians v. Patchak, 567 U.S. 209, 225–26 (2012)).

20

“Whether a plaintiff’s interest is ‘arguably . . . protected . . . by the statute’ within

21 the meaning of the zone-of-interests test is to be determined not by reference to the

22 overall purpose of the Act in question[,] . . . but by reference to the particular provision of

23 law upon which the plaintiff relies.” Bennett v. Spear, 520 U.S. 154, 175–76 (1997) (first

24 and second alterations in original) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v.

25 Camp, 397 U.S. 150, 153 (1970)). Put differently, “the plaintiff must establish that the

26 injury he complains of . . . falls within the ‘zone of interests’ sought to be protected by the

27 statutory provision whose violation forms the legal basis for his complaint.” Id. at 176

28 (alteration in original) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990); and

14

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1 citing Air Courier Conf. v. Postal Workers, 498 U.S. 517, 523–24 (1991)); see also E. Bay

2 Sanctuary I, 932 F.3d at 768 n.9 (“‘[W]e are not limited to considering the [specific]

3 statute under which [plaintiffs] sued, but may consider any provision that helps us to

4 understand Congress’[s] overall purposes in the [INA].’” (alterations in original) (quoting

5 Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 401 (1987))). “[F]or APA challenges, a plaintiff

6 can satisfy the test in either one of two ways: (1) ‘if it is among those [who] Congress

7 expressly or directly indicated were the intended beneficiaries of a statute,’ or (2) ‘if it is a

8 suitable challenger to enforce the statute—that is, if its interests are sufficiently congruent

9 with those of the intended beneficiaries that the litigants are not more likely to frustrate

10 than to further . . . statutory objectives.’” California, 963 F.3d at 941–42 (second and third

11 alterations in original) (quoting Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Def., 87

12 F.3d 1356, 1359 (D.C. Cir. 1996)).

13

i.

APA Zone of Interests

14

In the preliminary injunction order, this court determined that the organizational

15 plaintiffs did not fall within the zone of interests for three reasons. First, the court

16 reasoned that simply being negatively affected by the Rule does not establish that the

17 organizational plaintiffs fell within the INA’s zone of interest. Dkt. 131 at 71. Second, the

18 organizational plaintiffs’ briefing failed to identify or explain what statutory provisions

19 supported their argument. When plaintiffs later identified a statutory section at the

20 hearing, 8 U.S.C. § 1611, they did not demonstrate how that section had any integral

21 relationship with 8 U.S.C. § 1182(a)(4) or explain how § 1611 was related to the

22 organizational plaintiffs’ role. Id. at 71–72. Third, the court explained that the

23 organizational plaintiffs “simply fail[ed] to explain how their interests related to

24 § 1182(a)(4)’s purpose of excluding immigrants likely to become public charges. Id. at

25 72.

26

Defendants argue that the court should now dismiss plaintiffs’ claims because they

27 do not fall within the zone of interests of the INA. Mtn. at 8. In particular, they argue that

28 the INA’s zone of interest extends to aliens improperly determined to be inadmissible, not

15

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1 organizations seeking to assist those aliens. Id. at 8–9. In response, plaintiffs advance

2 three reasons why they fall within the zone of interest of the INA. First, one set of

3 interests implicated by the public charge provision is to accurately identify which

4 immigrants are likely to become a public charge and deny them admission. Opp. at 7.

5 Plaintiffs allege that several of the legal organization plaintiffs represent individuals who

6 fit their description. Id. (citing FAC ¶¶ 33–37, 39–40, 42–43). Second, a second set of

7 interests implicated by the public charge provision concerns the health and economic

8 status of immigrants who are granted admission to the United States. Id. at 9. Plaintiffs

9 allege that their missions, either in whole or in part, is to protect and improve the health

10 and economic status of immigrant communities and they help immigrants avoid becoming

11 public charges. Id. Third, the Rule itself presupposes impact on and the involvement of

12 the organizational plaintiffs. Id. at 9–10.

13

The court begins with the three appellate opinions discussing the Rule.4 The Ninth

14 Circuit’s opinion staying this court’s preliminary injunction noted that the organizational

15 plaintiffs were not parties to the appeal and did not express any opinion on zone of

16 interests more generally. See City & Cty. of San Francisco, 944 F.3d at 784 n.7 & 786

17 n.8. In its order affirming a preliminary injunction staying the Rule, the Seventh Circuit

18 succinctly framed the zone of interest issue concerning an immigrant aid organization

19 plaintiff:

20

we accept that [the aid organization] helps immigrants navigate

the INA’s various requirements, including the public-charge

21

rule, and it has an interest in ensuring that immigrants are not

improperly denied adjustment of status or removed from the

22

country because of confusion over DHS’s Rule. But the link

23

24

4 The Fourth Circuit recently issued an opinion reversing a preliminary injunction enjoining the Rule. Casa de Md., Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020). The court

25

found that the organization plaintiff in that case did not have standing and, therefore, did not address the zone of interests test. The Fourth Circuit’s holding with regard to

26

standing does not compel a different result here. There, the court reasoned that the organization’s voluntary “budgetary choice[]” like spending money on legal action is not a

27

cognizable Article III injury. Id. at 238. Here, plaintiffs have demonstrated loss in revenue due to disenrollment or non-utilization of services for which they are reimbursed.

28

In other words, because plaintiffs are harmed regardless of their voluntary budgetary choices, they have standing.

16

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between these injuries and the purpose of the public-charge

1

part of the statute is more attenuated, and thus it is harder to

say that the injury [the organization] has asserted meets the

2

“zone-of-interests” test.

3 Cook Cty., Illinois v. Wolf, 962 F.3d 208, 221 (7th Cir. 2020). The court declined to

4 resolve the organization’s status since only one plaintiff was required to demonstrate it

5 fell within the zone of interests and a different plaintiff, Cook County, met that criteria. Id.

6 at 220. Most recently, the Second Circuit, in an opinion affirming a preliminary injunction

7 enjoining the Rule, held that aid organizations were within the zone of interests. New

8 York v. Dep’t of Homeland Sec., 969 F.3d 42, 63 (2d Cir. 2020). The court reasoned that

9 the organizations’

10 11 12 13 14 Id.

interests stem from their assorted missions to increase noncitizen well-being and status, which they express in their work to provide legal and social services to non-citizens. An overbroad interpretation of the public charge ground, tipping the balance too far in the direction of exclusion at the expense of admission in the interest of family unity and economic vitality, imperils both these interests.

15

As an initial observation, the INA’s public charge provision does not directly

16 regulate the conduct of or benefit plaintiffs. The observation is not dispositive because in

17 East Bay Sanctuary I, the Ninth Circuit noted that aid organizations’ purpose in aiding

18 immigrants seeking asylum was consistent with the INA’s purpose to establish the

19 statutory procedure for granting asylum to refugees. 932 F.3d at 768. In support of that

20 statement, the court cited statutory sections in which “Congress took steps to ensure that

21 pro bono legal services of the type that the [aid organizations] provide are available to

22 asylum seekers.” Id. (citing 8 U.S.C. § 1158(d)(4)(A)–(B)). The court also cited other

23 statutory provisions in the INA which “give institutions like the [aid organizations] a role in

24 helping immigrants navigate the immigration process.” Id. (citing, e.g., 8 U.S.C.

25 § 1101(i)(1)). While plaintiffs here do not cite a mandate similar to § 1158(d)(4), they cite

26 the same sections as in East Bay Sanctuary I as evidence of Congress’s intent that

27 organizations have a role in helping immigrants navigate the immigration process.

28

Unlike the preliminary injunction briefing and hearing, plaintiffs have now identified

17

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1 statutory provisions that bring them within the zone of interest. Notably, the public charge

2 provision excludes from its ambit any person who “is an applicant for, or is granted,

3 nonimmigrant status under section 1101(a)(15)(U). 8 U.S.C. § 1182(a)(4)(E)(ii). In turn,

4 8 U.S.C. § 1101(a)(15)(U) cross references § 1184(p) and § 1184(p)(3)(A) requires the

5 Attorney General and other government officials, where appropriate, to refer potential U

6 visa applicants to nongovernmental organizations. Similarly, the public charge provision

7 excludes persons who are “a qualified alien described in section 1641(c).” 8 U.S.C.

8 § 1182(a)(4)(E)(iii). In turn, 8 U.S.C. § 1641(c)(4) includes “an alien who has been

9 granted nonimmigrant status under section 1101(a)(15)(T)” and § 1101(i)(1) requires “the

10 Secretary of Homeland Security, the Attorney General, and other Government officials,

11 where appropriate, [to] provide the alien with a referral to a nongovernmental

12 organization” for nonimmigrant aliens described in 8 U.S.C. § 1101(a)(15)(T)(i). Thus,

13 “[t]hese statutes, which directly rely on institutions like [plaintiffs] to aid immigrants, are a

14 sufficient ‘indicator that the plaintiff[s] [are] peculiarly suitable challenger[s] of

15 administrative neglect . . . support[ing] an inference that Congress would have intended

16 eligibility’ to bring suit.” E. Bay Sanctuary I, 932 F.3d at 769 (third through seventh

17 alterations in original) (quoting Hazardous Waste Treatment Council v. EPA, 861 F.2d

18 277, 283 (D.C. Cir. 1988)).

19

Moreover, the injury that plaintiffs complain of is within the zone of interests.

20 Plaintiffs allege they have been harmed and will be harmed by a decrease in utilization of

21 their services by aliens who are or believe they are subject to the Rule. As discussed,

22 the public charge provision references other statutory sections that require, where

23 appropriate, government officials to refer aliens to nongovernmental organizations.

24

Additionally, plaintiffs can show they are suitable challengers if their “interests are

25 sufficiently congruent with those of the intended beneficiaries that the litigants are not

26 more likely to frustrate than to further . . . statutory objectives.” California, 963 F.3d at

27 942. “The test forecloses suit only when a plaintiff’s interests are so marginally related to

28 or inconsistent with the purposes implicit in the statute that it cannot reasonably be

18

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1 assumed that Congress intended to permit the suit.” Id. (internal quotation marks

2 omitted) (quoting Match-E-Be-Nash-She-Wish, 567 U.S. at 225). In considering this

3 prong of the zone of interests test, the court finds persuasive the Second Circuit’s opinion

4 that determined the organizations there were among “‘those who in practice can be

5 expected to police the interests that the statute protects[,]’ namely, the admission of non-

6 citizens who will be self-sufficient and the exclusion of those who will not.” New York,

7 2020 WL 4457951, at *12 (alteration in original) (quoting Fed. Defs. of N.Y., Inc. v. Fed.

8 Bureau of Prisons, 954 F.3d 118, 131 (2d Cir. 2020); and citing Bank of Am. Corp. v. City

9 of Miami, 137 S. Ct. 1296, 1304 (2017)).

10

Defendants quote an in chambers opinion issued by Justice O’Connor that

11 determined that aid organizations were outside the zone of interests of the Immigration

12 Reform and Control Act of 1986 (“IRCA”). I.N.S. v. Legalization Assistance Proj. of L.A.

13 Cty. Fed’n of Labor, 510 U.S. 1301, 1302, 1305 (1993) (O’Connor, J., in chambers).

14 Justice O’Connor wrote “IRCA was clearly meant to protect the interests of

15 undocumented aliens, not the interests of organizations such as respondents.” Id. at

16 1305. Other district courts have distinguished this statement on the grounds that Justice

17 O’Connor’s opinion was non-precedential and predates the Court’s opinions in Match-E-

18 Be-Nash-She-Wish Band and Lexmark. Cook Cty., Illinois v. McAleenan, 417 F. Supp.

19 3d 1008, 1021 (N.D. Ill. 2019); see Capital Area Immigrants’ Rights Coal. v. Trump, — F.

20 Supp. 3d —, No. CV 19-2117 (TJK), 2020 WL 3542481, at *11 (D.D.C. June 30, 2020)

21 (same). While these reasons might be valid, more persuasive is the fact that Legalization

22 Assistance Project dealt with IRCA, 8 U.S.C. § 1255a, and not the public charge

23 provision. As discussed above, the public charge provision incorporates other statutory

24 sections providing for referrals by government officials to nongovernmental organizations

25 thereby implicating their interests. Legalization Assistance Project also reasoned “[t]he

26 fact that the INS regulation may affect the way an organization allocates its resources . . .

27 does not give standing to an entity which is not within the zone of interests the statute

28 meant to protect.” 510 U.S. at 1305 (citation omitted). Here, the injury is not just

19

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1 diversion of resources but also a loss of resources tied to decreased utilization of

2 plaintiffs’ services. This factual difference is such that, even if Legalization Assistance

3 Project were precedential, it would not apply in this case.

4

In sum, plaintiffs have put forward a more convincing argument than the one

5 advanced at the preliminary injunction stage. Critically, the Supreme Court “has

6 repeatedly emphasized that the zone of interests test is ‘not especially demanding’ in the

7 APA context.” California, 963 F.3d at 941 (quoting Lexmark, 572 U.S. at 130).

8 Accordingly, the court cannot say as a matter of law that plaintiffs fall outside the zone of

9 interests with regard to their APA claims.

10

ii.

Whether Zone of Interests Applies to Constitutional Claims

11

Next, defendants contend that plaintiffs’ Fifth Amendment claims fail the zone of

12 interests test because the Supreme Court has suggested that there is a heightened zone

13 of interests requirement for implied causes of action such as plaintiffs’ constitutional

14 claim. Mtn. at 8 n.2. Yet, in the very case that defendants cite for this proposition, Clarke

15 v. Securities Industry Association, 479 U.S. at 396, 400 n.16, the Court cautioned that

16 “[w]hile inquiries into reviewability or prudential standing in other [non-APA] contexts may

17 bear some resemblance to a ‘zone of interest’ inquiry under the APA, it is not a test of

18 universal application.” The Court went on to distinguish earlier dicta suggesting a zone of

19 interest inquiry was applicable to constitutional claims, stating “[w]e doubt, however, that

20 it is possible to formulate a single inquiry that governs all statutory and constitutional

21 claims.” Id. (citing Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,

22 153 (1970)). As plaintiffs point out, the Ninth Circuit has also questioned whether a zone

23 of interests test can be applied in light of the Court’s decision in Lexmark, which focused

24 on Congress’s intent in creating statutory causes of action as opposed to causes of

25 action that arise under the Constitution. See Sierra Club v. Trump, 929 F.3d 670, 701–02

26 (9th Cir. 2019) (“[W]e doubt that any zone of interests test applies to Plaintiffs’ equitable

27 cause of action.”). Accordingly, the court declines to apply a zone of interest test to

28 plaintiffs’ constitutional claims.

20

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1

In sum, the zone of interests test is not “especially demanding,” Lexmark, 572 U.S.

2 at 130, and, “at the very least, the [states’] interests are ‘marginally related to’ and

3 ‘arguably within’ the scope of the statute.” E. Bay Sanctuary Covenant v. Trump, 950

4 F.3d 1242, 1270 (9th Cir. 2020) (quoting Match-E-Be-Nash-She-Wish Band, 520 U.S. at

5 175–76). The court, therefore, DENIES defendants’ motion with respect to zone of

6 interests.

7

4. First and Second Claims—Contrary to Law and Arbitrary and

8

Capricious

9

Turning to defendants’ motion with regard to the individual claims, the court

10 addresses plaintiffs’ first and second claims together as they present a related issue. In

11 its preliminary injunction order, the court determined that plaintiffs were likely to succeed

12 on the merits of their claim that the Rule was not in accordance with the INA. Dkt. 131 at

13 48. After a lengthy review of the prior legislative, regulatory, and judicial history of the

14 term “public charge,” the court determined that DHS’s interpretation of the term “public

15 charge” was not reasonable at Chevron step two. In its order staying the injunction, the

16 Ninth Circuit determined that, at Chevron step one, the term “public charge” is not a term

17 of art and not self-defining—thus, it was ambiguous. City & Cty. of San Francisco, 944

18 F.3d at 792. At step two, the court also reviewed the lengthy legislative history and case

19 law surrounding the term “public charge” and concluded that there has not been “one

20 fixed understanding of ‘public charge’ that has endured since 1882.” Id. at 796. Instead,

21 “[i]f anything has been consistent, it is the idea that a totality-of-the-circumstances test

22 governs public-charge determinations. But different factors have been weighted more or

23 less heavily at different times, reflecting changes in the way in which we provide

24 assistance to the needy.” Id. In resolving the step two analysis, the Ninth Circuit

25 determined that the Rule was a reasonable interpretation of the INA. Id. at 799.

26

Also in its prior order, this court determined that plaintiffs were likely to succeed on

27 the merits that the Rule is arbitrary and capricious because DHS failed to consider costs

28 and benefits, including costs to state governments and health effects on state

21

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1 populations. Dkt. 131 at 53. On appeal, the Ninth Circuit motions panel discussed both

2 the cost-benefit issue and the public health effect issue. With regard to the former, the

3 court observed that DHS “addressed at length the costs and benefits associated with the

4 Final Rule.” City & Cty. of San Francisco, 944 F.3d at 801. With respect to public health

5 effects, the Ninth Circuit noted that “DHS not only addressed these concerns directly, it

6 changed its Final Rule in response to the comments.” Id. The court determined that

7 DHS could change its policy as long as DHS acknowledged the change and explained

8 the reasons for it. Id. at 805. In sum, the court held that DHS demonstrated that it was

9 likely to succeed on the merits of the arbitrary and capricious claim.

10

As discussed more thoroughly in this court’s order in State of California, et al., v.

11 U.S. Department of Homeland Security, et al., No. 19-cv-04975-PJH, Dkt. 180, the

12 procedural posture of this case presents several issues. For example, applying the

13 motions panel’s opinion would require the court to determine the extent to which the

14 opinion is binding (or persuasive) as to each of plaintiffs’ claims that defendants now

15 seek to dismiss. Further, because the court has deferred ruling on defendants’ motion to

16 dismiss in the related case, it is therefore appropriate to follow a similar course of action

17 here as plaintiffs’ substantive claims largely overlap with the related case.

18

Accordingly, the court DEFERS RULING ON defendants’ motion to dismiss

19 plaintiffs’ first and second causes of action until the Ninth Circuit issues an opinion on the

20 preliminary injunction or otherwise disposes of the case.

21

5. Third, Fifth & Eighth Claims—McAleenan’s Appointment

22

Plaintiffs’ third claim alleges that the Rule is arbitrary and capricious because then

23 Acting Secretary of Homeland Security McAleenan was serving in that role in violation of

24 DHS’s organic statute and the APA. FAC ¶ 203. Similarly, plaintiffs’ fifth claim alleges

25 that McAleenan was not lawfully appointed under the FVRA and DHS’s organic statute.

26 Id. ¶¶ 211–13. Plaintiffs’ eighth claim alleges that McAleenan’s appointment violates the

27 Appointments Clause, the FVRA, and DHS’s organic statute and, therefore, seek relief

28 under the Declaratory Judgment Act. Id. ¶ 230.

22

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1

Defendants argue that McAleenan was lawfully appointed as Acting Secretary

2 because, after enactment of the FVRA, Congress permitted DHS to set its order of

3 succession. Mtn. at 17. On April 9, 2019, then Secretary Kirstjen Nielsen established a

4 new succession order that placed the Customs and Border Patrol (“CBP”) Commissioner

5 third in the line of succession. Id. at 18. McAleenan was CBP Commissioner at the time,

6 the positions above him were vacant, and, therefore, he was lawfully appointed. Id.

7 Plaintiffs respond that then Secretary Nielsen’s amended order of succession only

8 applied when the Secretary is “unavailable to act during a disaster or catastrophic

9 emergency.” Opp. at 18. Instead, plaintiffs contend that relevant DHS order required

10 that, following the resignation of the Secretary, Executive Order 13753 governed the

11 order of succession and provided an order of succession different than Nielsen’s order.

12 Id. Under Executive Order 13753, McAleenan was seventh, not third, in line and there

13 were two Senate-confirmed appointees in front of him. Id. Defendants reply that

14 Secretary Nielsen’s order expressly “designate[d] the order of succession for the

15 Secretary of Homeland Security[.]” Reply at 14. This order clearly defined the order of

16 succession and controls over any previous version of the order of succession. Id.

17

Resolving this issue requires examination of the FVRA, DHS’s organic statute, and

18 the orders issued pursuant to the organic statute. “Congress broadly designated the

19 [FVRA] to be the ‘exclusive means for temporarily authorizing an acting official to perform

20 the functions and duties of any’ Executive office that would otherwise require Senate

21 confirmation.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d

22 1, 11 (D.C. Cir. 2019) (per curiam) (quoting 5 U.S.C. § 3347(a)). “But there is an

23 ‘unless’—Congress crafted exceptions to that exclusivity.” Id. DHS’s organic statute has

24 two such exceptions that apply notwithstanding the FVRA. First, 6 U.S.C. § 113(g)(1)

25 requires the Under Secretary for Management to serve as Acting Secretary if the

26 Secretary or Deputy Secretary is unavailable to perform the duties of Secretary. Second,

27 § 113(g)(2) permits the Secretary to “designate such other officers of the Department in

28 further order of succession to serve as Acting Secretary.”

23

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1

In December 2016, then Secretary of Homeland Security Jeh Johnson issued an

2 order of succession, entitled DHS Delegation No. 00106, that stated in relevant part:

3

II. Succession Order/Delegation

4

A. In case of the Secretary’s death, resignation, or

inability to perform the functions of the Office, the orderly

5

succession of officials is governed by Executive Order 13753,

amended on December 9, 2016. 6

B. I hereby delegate to the officials occupying the

7

identified positions in the order listed (Annex A), my authority

to exercise the powers and perform the functions and duties of

8

my office, to the extent not otherwise prohibited by law, in the

event I am unavailable to act during a disaster or catastrophic

9

emergency.

10 Dkt. 167-1, at 2.5 On April 9, 2019, Secretary Nielsen signed an order that approved an

11 amendment to Delegation No. 00106. That amendment invoked 6 U.S.C. § 113(g)(2)

12 and stated: “I hereby designate the order of succession for the Secretary of Homeland

13 Security as follows: Annex A of DHS Orders of Succession and Delegations of Authorities

14 for Named Positions, Delegation No. 00106, is hereby amended by striking the text of

15 such Annex in its entirety and inserting the following in lieu thereof: . . . .” Dkt. 166-3, at

16 3. The amendment then listed the order of succession with the CBP Commissioner third

17 in line. Id.

18

Thus far, the parties are in general agreement about the relevant authorities and

19 documents. Where they depart is the effect of the April 9th order. Defendants argue that

20 the amendment designated the order of succession in all cases, regardless of whether it

21 involved section II, subparagraph A of Delegation No. 00106 (i.e., in case of the

22 Secretary’s death, resignation, or inability to perform the functions of the Office), or

23 subparagraph B (i.e., when the Secretary is unavailable to act during a disaster or

24

25 5 Plaintiffs attach a copy of Delegation No. 00106, dated as of April 10, 2019, to their

26

opposition. Additionally, defendants attach a copy of Secretary Nielsen’s order amending Delegation No. 00106 to their motion. Dkt. 166-3. While neither document was attached

27

to the pleading, the court can consider documents “whose contents are alleged in a complaint and whose authenticity no party questions . . . .” Knievel, 393 F.3d at 1076.

28

The FAC references both documents and neither party challenges the authenticity of the documents in question. FAC ¶¶ 149–50.

24

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1 catastrophic emergency). In support of their argument, defendants quote the text of the

2 April 9th order: “I hereby designate the order of succession for the Secretary of

3 Homeland Security as follows . . . .” Mtn. at 18; Reply at 14 (“Secretary Nielsen’s order,

4 in no uncertain terms, expressly ‘designate[d] the order of succession for the Secretary of

5 Homeland Security[.]’”). This is an instance where the omitted material, signified by the

6 ellipses in defendants’ motion and the bracket in their reply, is critical to understanding

7 what exactly Secretary Nielsen ordered. The order states, “I hereby designate the order

8 of succession for the Secretary of Homeland Security as follows:” Dkt. 166-3 at 3

9 (emphasis added). Here is what followed: “Annex A of DHS Orders of Succession and

10 Delegations of Authorities for Named Positions, Delegation No. 00106, is hereby

11 amended by striking the text of such Annex in its entirety and inserting the following in

12 lieu thereof: Annex A. Order for Delegation of Authority by the Secretary of the

13 Department of Homeland Security.” Id. The order of succession is then laid out in the

14 amended Annex A. In other words, the April 9th order only replaced Annex A and made

15 no other changes to Delegation No. 00106. Thus, when Secretary Nielsen resigned “the

16 orderly succession of officials [was] governed by Executive Order 13753, amended on

17 December 9, 2016,” but not the amended Annex A, which only applied when the

18 Secretary was unavailable due to disaster or catastrophic emergency. Dkt. 167-1.

19

Had Secretary Nielsen intended to modify the order of succession applicable in

20 case of the Secretary’s death, resignation, or inability to perform the functions of the

21 Office, then her order could have so stated. In fact, plaintiffs cite a later amendment of

22 Delegation No. 00106 by Acting Secretary McAleenan, which stated “Section II.A of DHS

23 Delegation No. 00106, DHS Orders of Succession and Delegations of Authorities for

24 Named Positions, is amended hereby to state as follows: ‘In case of the Secretary’s

25 death, resignation, or inability to perform the functions of the Office, the order of

26 succession of officials is governed by Annex A.’” Dkt. 167-2 at 2 (emphasis added). The

27 fact that McAleenan amended Delegation No. 00106 to modify section II.A to cross-

28 reference Annex A but Nielsen did not, reinforces the conclusion that at the time of

25

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1 Nielsen’s resignation, Executive Order 13753 governed the order of succession.

2

In turn, Executive Order 13753, amended December 9, 2016, provided:

3

Subject to the provisions of subsection (b) of this section, the

officers named in subsection (a) of this section, in the order

4

listed, shall act as, and perform the functions and duties of the

office of, the Secretary of Homeland Security (Secretary), if

5

they are eligible to act as Secretary under the provisions of the

Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq.

6

(Vacancies Act), during any period in which the Secretary has

died, resigned, or otherwise become unable to perform the

7

functions and duties of the office of Secretary.

8 81 Fed. Reg. 90,667, 90,667. The Executive Order then lists the order of succession and

9 the CBP Commissioner is seventh in line. Id. Plaintiffs allege that, at the time of

10 McAleenan’s elevation to Acting Secretary, the roles of both the Under Secretary for

11 National Protection and Programs and the Under Secretary for Intelligence and Analysis

12 were filled by Senate-confirmed appointees such that McAleenan’s appointment was

13 invalid and any action by him was ultra vires. FAC ¶¶ 152–53.

14

This is not the end of the inquiry, however. As quoted above, subsection (a) is

15 “[s]ubject to the provisions of subsection (b).” 81 Fed. Reg. at 90,667. Subsection (b)

16 provides: “Notwithstanding the provisions of this section, the President retains discretion,

17 to the extent permitted by the Vacancies Act, to depart from this order in designating an

18 acting Secretary.” Id. at 90,668. Thus, as long as McAleenan’s appointment was

19 permitted by the FVRA, the President had the discretion to appoint him as Acting

20 Secretary. Despite this discretion, defendants aver that the President did not appoint

21 McAleenan pursuant to the FVRA. Dkt. 184 at 2. If the President did not exercise his

22 authority6 under the FVRA to depart from the order of succession outlined in section (a)

23 of Executive Order 13753, then that Executive Order controlled the order of succession.

24 Plaintiffs allege McAleenan assumed the position of Acting Secretary when there were

25

26

6 As discussed in this court’s order granting plaintiffs’ motion for reconsideration, (Dkt. 188), the FAC alleges that President Trump tweeted on April 7, 2019, that McAleenan

27

would assume the rule of Acting Secretary. FAC ¶ 145. It is an open question, therefore, whether the President’s tweet constituted a designation sufficient to depart from the order

28

of succession outlined in Executive Order 13753. This question is a factual one not suitable for resolution on a Rule 12(b)(6) motion to dismiss.

26

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1 other officers above him in the order of succession and McAleenan was ineligible to

2 assume the role of Acting Secretary. FAC ¶¶ 152–53. This plausibly states a claim that

3 McAleenan was unlawfully appointed as Acting Secretary and his approval of the Rule

4 was unlawful.

5

For the foregoing reasons, defendants’ motion to dismiss plaintiffs’ third, fifth, and

6 eighth (pertaining to McAleenan) causes of action is DENIED.

7

6. Fourth, Sixth & Eighth Claims—Cuccinelli’s Appointment

8

Plaintiffs’ fourth claim alleges that the Rule is arbitrary and capricious because

9 then Acting Director of USCIS Cuccinelli was serving in that role in violation of the FVRA

10 and the APA. FAC ¶ 206. Their sixth claim alleges that Cuccinelli was not eligible to be

11 appointed as Acting Director of USCIS under the FVRA and, therefore, his actions have

12 no force or effect. Id. ¶¶ 216–18. Plaintiffs’ eighth claim alleges that Cuccinelli’s

13 appointment violates the Appointments Clause, the FVRA, and DHS’s organic statute

14 and, therefore, seek relief under the Declaratory Judgment Act.

15

Defendants argue that both claims against Cuccinelli should be dismissed

16 because the Rule was promulgated under the authority and signature of Acting Secretary

17 McAleenan and not Cuccinelli. Mtn. at 18. Plaintiffs respond that they allege that

18 Cuccinelli’s pre-promulgation involvement likely entailed taking FVRA-defined action.

19 Opp. at 19. They also argue that because Cuccinelli’s appointment violated FVRA, his

20 substantial involvement in the promulgation of the Rule renders it not in accordance with

21 law. Id. at 20.

22

Plaintiffs advance two separate theories regarding Cuccinelli’s appointment. Both

23 theories advance from the same predicate, Cuccinelli’s appointment violated section

24 3345 of the FVRA. The first theory is that because of the predicate FVRA violation, the

25 Rule was arbitrary and capricious under the APA. The second theory is that because of

26 the predicate violation, the Rule is rendered void by a separate FVRA provision.

27

Under the APA, “an agency action” that is “not in accordance with law” must be

28 held “unlawful and set aside.” 5 U.S.C. § 706(2). “The FVRA renders any action taken in

27

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1 violation of the statute void ab initio: section 3348(d) declares that ‘[a]n action taken by

2 any person who is not acting [in compliance with the FVRA] shall have no force or effect’

3 and ‘may not be ratified.’” SW Gen., Inc. v. N.L.R.B., 796 F.3d 67, 78 (D.C. Cir. 2015)

4 (alterations in original) (quoting 5 U.S.C. § 3348(d)(1)–(2)). Assuming for the sake of

5 argument that plaintiffs are correct regarding their predicate FVRA violation,—i.e.,

6 Cuccinelli’s appointment violated FVRA—it does not follow that he took an action that can

7 be remedied under either the APA or the FVRA.

8

Title 8 U.S.C. § 1103(a) prescribes the powers and duties of the Secretary of

9 Homeland Security including charging him or her “with the administration and

10 enforcement” of immigration laws and establishing regulation as he or she deems

11 necessary for carrying out his or her authority under the provisions of the INA. 8 U.S.C.

12 § 1103(a)(1), (3). Pursuant to that authority, DHS issued both the NPRM and the Rule.

13 83 Fed. Reg. at 51,116; 84 Fed. Reg. at 41,295 (“DHS’s authority for making public

14 charge inadmissibility determinations and related decisions is found in several statutory

15 provisions.”). The Rule was issued pursuant to then Acting Secretary McAleenan’s

16 authority, 84 Fed. Reg. at 41,295–96, and under his signature, id. at 41,508. The NPRM

17 was issued pursuant to then Secretary Nielsen’s authority, 83 Fed. Reg. at 51,124, and

18 signature, id. at 51,296. Plaintiffs challenge the promulgation of that Rule, which was not

19 issued pursuant to Cuccinelli’s authority (or even under USCIS’s authority). For that

20 reason, this case is unlike the only district court that determined Cuccinelli to be

21 unlawfully appointed and, as a remedy, set aside asylum directives there were issued by

22 Cuccinelli. L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 11, 37 (D.D.C. 2020). Even if

23 plaintiffs were able to demonstrate that Cuccinelli was unlawfully appointed, they cannot

24 state a claim for violation under the FVRA or the APA with regard to promulgation of the

25 Rule.

26

For the foregoing reasons, defendants’ motion to dismiss plaintiffs’ fourth, sixth,

27 and eighth (pertaining to Cuccinelli) causes of action is GRANTED. Because the Rule

28 was promulgated under the acting DHS Secretary’s authority, no additional factual

28

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1 allegations could state a claim and further amendment of these claims would be futile.

2

7. Seventh Claim—Equal Protection

3

Defendants move to dismiss plaintiffs’ seventh claim for violation of the Equal

4 Protection component of the Fifth Amendment. The Equal Protection Clause of the

5 Fourteenth Amendment commands that no state shall “deny to any person within its

6 jurisdiction the equal protection of the laws,” U.S. Const. amend. XIV, § 1, which amounts

7 to a direction that all persons who are similarly situated should be treated alike. City of

8 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The equal protection

9 component of the Fifth Amendment’s Due Process Clause imposes a similar obligation

10 on the federal government. See Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954); see

11 also I.N.S. v. Pangilinan, 486 U.S. 875, 886 (1988) (considering “the possibility of a

12 violation of the equal protection component of the Fifth Amendment’s Due Process

13 Clause”).

14

Defendants argue that plaintiffs’ Equal Protection claims should be dismissed

15 because the Rule is facially neutral, and plaintiffs cannot establish discriminatory intent.

16 Mtn. at 19. Defendants contend that the court should apply a narrow standard of review,

17 as required by Trump v. Hawaii, 138 S. Ct. 2418 (2018), because this case implicates the

18 Executive Branch’s authority over the admission and exclusion of foreign nationals. Mtn.

19 at 20. According to defendants, the FAC contains no allegations suggesting that the Rule

20 is not at least plausibly related to DHS’s stated objectives. Id. Defendants also contend

21 that the public statements by government officials upon which plaintiffs rely were not

22 made by DHS officials and have no express connection to the Rule. Id. at 21.

23

Plaintiffs respond that they have alleged sufficient facts to plausibly demonstrate

24 defendants acted with a discriminatory purpose. Opp. at 21. These allegations include:

25 the Rule will bear more heavily on non-white immigrants, which DHS acknowledged in

26 the Rule, (id.); statements by administration officials indicate that the Administration was

27 motivated in part by racial animus (id. at 22–23); and the sequence of events leading to

28 the promulgation of the Rule indicate a substantive departure from the normal decision-

29

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1 making process, (id. at 23). Plaintiffs next argue that Trump v. Hawaii is not applicable

2 where, as here, DHS’s regulated activity applies to people already residing in the United

3 States and national security concerns are not present. Id. at 23–24.

4

In its order on defendants’ motion to dismiss in California, et al. v. Department of

5 Homeland Security, et al., No. 19-cv-4975-PJH, Dkt. 180, the court discussed at length

6 the Supreme Court’s jurisprudence regarding initial entry cases and whether plaintiffs in

7 that case could state a claim for an Equal Protection violation. Rather than recapitulate

8 that discussion in its entirety, the court summarizes a few main points. To begin, the

9 Court has long recognized that Congress’s power concerning the initial entry of aliens

10 into the country is plenary. See Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“This Court has

11 repeatedly emphasized that ‘over no conceivable subject is the legislative power of

12 Congress more complete than it is over’ the admission of aliens.” (quoting Oceanic

13 Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). However, once an alien arrives

14 in the United States and begins establishing ties to the country, the Court has recognized

15 certain constitutional protections extend to those persons, even if their presence is

16 “unlawful, involuntary, or transitory.” Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“There

17 are literally millions of aliens within the jurisdiction of the United States. The Fifth

18 Amendment, as well as the Fourteenth Amendment, protects every one of these persons

19 from deprivation of life, liberty, or property without due process of law.” (citations

20 omitted)). It is therefore necessary to distinguish whether a government action involves

21 an initial entry into the United States or whether an alien has begun to establish ties with

22 the United States such that his or her constitutional status changes accordingly. See

23 Landon v. Plasencia, 459 U.S. 21, 32 (1982).

24

Trump v. Hawaii is best viewed as an initial entry case where Congress’s power is

25 at its height. In that case, the Supreme Court examined an Equal Protection challenge to

26 an executive order issued by the President that restricted entry into the United States by

27 foreign nationals of select countries, nearly all majority-Muslim countries. Hawaii, 138 S.

28 Ct. at 2403–04. The Court considered but ultimately did not apply the highly deferential

30

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1 standard of review articulated in Kleindienst v. Mandel, 408 U.S. 753, 756–57 (1972),

2 noting that stating “Mandel’s narrow standard of review ‘has particular force’ in admission

3 and immigration cases that overlap with ‘the area of national security.’” Hawaii, 138 S.

4 Ct. at 2419 (quoting Kerry v. Din, 576 U.S. 86, 104 (2015) (Kennedy, J., concurring)).

5 Instead, the Court applied rational basis review and upheld the proclamation on those

6 grounds. Id. at 2420–21.

7

Similar to Hawaii, the Rule applies to immigrants and nonimmigrants seeking initial

8 admission to the United States. 84 Fed. Reg. at 41,295. Unlike Hawaii, it also applies to

9 aliens who are already physically present in the United States and seeking adjustment of

10 status. Id. Because the Rules applies in part to aliens who are already in the United

11 States, defendants cannot entirely rely on cases based on Congress’s plenary power

12 over initial entry cases to uphold the Rule. Moreover, aliens who are physically present

13 in the United States can state a claim for violation of the Equal Protection component of

14 the Fifth Amendment. See Kwai Fun Wong v. United States, 373 F.3d 952, 970–73 (9th

15 Cir. 2004); see also Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Indeed, we have clearly

16 held that the Fifth Amendment protects aliens whose presence in this country is unlawful

17 from invidious discrimination by the Federal Government.” (citing Mathews, 426 U.S. at

18 77)).

19

In Department of Homeland Security v. Regents of the University of California,

20 writing for a plurality with regard to an Equal Protection challenge to the Administration’s

21 revocation of the Deferred Action for Childhood Arrivals (“DACA”) program, Chief Justice

22 Roberts stated that “[t]o plead animus, a plaintiff must raise a plausible inference that an

23 ‘invidious discriminatory purpose was a motivating factor’ in the relevant decision.

24 Possible evidence includes disparate impact on a particular group, ‘[d]epartures from the

25 normal procedural sequence,’ and ‘contemporary statements by members of the

26 decisionmaking body.’” 140 S. Ct. at 1915 (second alteration in original) (quoting

27 Arlington Heights, 429 U.S. at 266–68). At no point did the plurality cite or apply Hawaii’s

28 deferential standard of review. This indicates that application of the Arlington Heights

31

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1 framework is appropriate to evaluate whether plaintiffs plead discriminatory animus.

2 Because this court has likewise determined that Trump v. Hawaii (and the plenary power

3 doctrine more generally) does not apply to the Rule in its entirety, similar to Regents, it is

4 appropriate to apply Arlington Heights to plaintiffs’ claim.

5

Defendants cite a Board of Immigration Appeals (“BIA”) opinion for the proposition

6 that “[i]t is a well established fact that an applicant for adjustment of status under Section

7 245 of the Act is in the same posture as though he were an applicant before an American

8 consular officer abroad seeking issuance of an immigrant visa for the purpose of gaining

9 admission to the United States as a lawfully permanent resident.” Reply at 17 (quoting

10 Matter of Harutunian, 14 I.&N. Dec. 583, 589 (B.I.A. Feb. 28, 1974)). The BIA’s opinion

11 could be construed as stating that Congress’s plenary power applies even if an individual

12 is inside the United States because an adjustment of status is formally the same as an

13 overseas application for admission.

14

A few points are worth considering with regard to Matter of Harutunian. First, the

15 BIA did not cite a case for its proposition, which makes evaluating its statement of the law

16 difficult. Second, the statement appears to conflict with the proposition that “[a]liens,

17 even aliens whose presence in this country is unlawful, have long been recognized as

18 ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”

19 Plyler, 457 U.S. at 210 (citations omitted). Even assuming the BIA’s statement is true,

20 the court is persuaded by the Court’s plurality opinion in Regents which did not apply

21 Hawaii to the DACA program, a program applicable to persons who were physically

22 present in the United States but otherwise had no lawful status under the immigration

23 laws. See Regents, 140 S. Ct. at 1901.

24

“Under Arlington Heights, a plaintiff must ‘simply produce direct or circumstantial

25 evidence demonstrating that a discriminatory reason more likely that [sic] not motivated

26 the defendant and that the defendant’s actions adversely affected the plaintiff in some

27 way.’” Ave. 6E Invs., LLC v. City of Yuma, Ariz., 818 F.3d 493, 504 (9th Cir. 2016)

28 (internal quotation marks omitted) (quoting Pac. Shores Props., LLC v. City of Newport

32

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1 Beach, 730 F.3d 1142, 1158 (9th Cir. 2013)); see also Regents, 140 S. Ct. at 1915. “A

2 plaintiff does not have to prove that the discriminatory purpose was the sole purpose of

3 the challenged action, but only that it was a ‘motivating factor.’” Ave. 6E Invs., (quoting

4 Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015)). While Arlington Heights describes

5 an evidentiary framework rather than a pleading standard, the Ninth Circuit has used its

6 factors in evaluating a district court’s dismissal of a complaint pursuant to Rule 12(b)(6).7

7 See id.

8

In Arlington Heights, the Court described a series of non-exhaustive factors that

9 guides the inquiry into whether a defendant’s actions were motivated by a discriminatory

10 purpose “by examining (1) statistics demonstrating a ‘clear pattern unexplainable on

11 grounds other than’ discriminatory ones, (2) ‘[t]he historical background of the decision,’

12 (3) ‘[t]he specific sequence of events leading up to the challenged decision,’ (4) the

13 defendant’s departures from its normal procedures or substantive conclusions, and (5)

14 relevant ‘legislative or administrative history.’” Pac. Shores Props., 730 F.3d at 1158–59

15 (alterations in original) (quoting Arlington Heights, 429 U.S. at 266–68; and citing Comm.

16 Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 2009));

17 see also Avenue 6E Invs., 818 F.3d at 504 (applying Arlington Heights factors to an

18 Equal Protection claim dismissed pursuant to Rule 12(b)(6)).

19

i. Disparate Impact

20

Here, plaintiffs allege that the Rule’s “negatively weighted factors

21 disproportionately and detrimentally affect communities of color.” FAC ¶ 120. The

22

23 7 While not directly applicable to Equal Protection claims, the Supreme Court and the

24

Ninth Circuit have held that, for employment discrimination cases, the McDonnell Douglas evidentiary framework is a useful touchstone to evaluate whether a claim

25

survives a motion to dismiss; however, a plaintiff “is not required to plead a prima facie case of discrimination in order to survive a motion to dismiss.” Sheppard v. David Evans

26

& Assoc., 694 F.3d 1045, 1050 (9th Cir. 2012) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508–11 (2002)). Similar to McDonnell Douglas, the Arlington Heights

27

framework is an evidentiary burden-shifting regime. A Rule 12(b)(6) motion only requires plaintiffs to meet the requirements of Rule 8 and Twombly/Iqbal. See Kwai Fun Wong,

28

373 F.3d at 968 (applying Swierkiewicz to Equal Protection claim that immigration officials discriminated against the plaintiff on the basis of her race).

33

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1 complaint also cites the Rule, where DHS stated that it “recognizes that it is possible that

2 the inclusion of benefits such as SNAP and Medicaid may impact in greater numbers

3 communities of color, including Latinos and [Asian-American, Pacific Islanders], as well

4 as those with particular medical conditions that require public benefits for treatment, and

5 therefore may impact the overall composition of immigration with respect to these

6 groups.” 84 Fed. Reg. at 41,369. Plaintiffs have plausibly alleged that the Rule will

7 impact certain racial groups more heavily than others.

8

However, the court notes that the plurality opinion in Regents found that the

9 disparate impact of the DACA rescission on Latinos was not sufficient to state a claim.

10 Writing for himself and three other justices, Chief Justice Roberts stated “because

11 Latinos make up a large share of the unauthorized alien population, one would expect

12 them to make up an outsized share of recipients of any cross-cutting immigration relief

13 program. . . . Were this fact sufficient to state a claim, virtually any generally applicable

14 immigration policy could be challenged on equal protection grounds.” Regents, 140 S.

15 Ct. at 1915. This reasoning is persuasive and the Rule’s disparate impact, while notable,

16 is not dispositive.

17

ii. Statements by Decisionmakers

18

Next, plaintiffs cite evidence of potential bias exemplified by actions and

19 statements of the President and his advisors. With regard to the administration generally,

20 plaintiffs cite numerous immigration-related executive actions that they characterize as

21 either exclusively or disproportionately harming immigrants from non-white majority

22 nations. These actions include separating young children from their parents at the

23 southern U.S. border, ending DACA and temporary protected status for El Salvador,

24 Honduras, Haiti, Nepal, Sudan, and Nicaragua, and excluding nationals from majority-

25 Muslim countries. FAC ¶ 124. With respect to the President, plaintiffs allege that, as a

26 candidate, the President ran a campaign replete with racist aspersions about people of

27 Mexican descent and Muslim faith. Id. ¶ 125. After his inauguration, the President stated

28 that Haitians “all have AIDS,” that America should not be a haven for “people from

34

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1 shithole countries,” and that he preferred immigrants coming from places like Norway. Id.

2 They also allege that on July 14, 2019, the President claimed that four congresswomen

3 of color “originally came from countries whose government are a complete and total

4 catastrophe, the worst, most corrupt and inept anywhere in the world . . .” and asked

5 “Why don’t they go back and help fix the totally broken and crime infested places from

6 which they came . . . .” Id. ¶ 129 (second alteration in original).

7

With respect to administration officials, plaintiffs allege that other senior

8 administration officials made statements indicative of racial bias. They cite statements at

9 a press conference by then Acting Director of USCIS Cuccinelli who said that “President

10 Trump has once again delivered on his promise” regarding immigration. Id. ¶ 133. When

11 asked about how the Rule would target Latinos, Cuccinelli stated “if we had been having

12 this conversation 100 years ago, it would’ve applied to more Italians.” Id. Cuccinelli also

13 “rewrote” the words to Emma Lazarus’s sonnet on the Statue of Liberty “Give me your

14 tired and your poor” by adding “who can stand on their own two feet and who will not

15 become a public charge.” Id. ¶ 134. Cuccinelli explained that the poem was referring

16 back to people coming from Europe where they had class-based societies. Id. Plaintiffs

17 also cite a statement by the prior acting director of Immigration and Customs

18 Enforcement Mark Morgan who said of unaccompanied children in detention centers,

19 “I’ve looked at them and I’ve looked at their eyes . . . and I’ve said that is a soon-to-be

20 MS-13 gang member. It’s unequivocal.” Id. ¶ 137 (alteration in original).

21

In Regents, 140 S. Ct. at 1916, Chief Justice Roberts’ plurality opinion found the

22 President’s statements to be “unilluminating” and instead noted that “relevant actors were

23 most directly [the] Acting Secretary [of Homeland Security] and the Attorney General.”

24 The opinion stated that “respondents did not ‘identif[y] statements by [either] that would

25 give rise to an inference of discriminatory motive.’” Id. (alterations in original) (citation

26 omitted). Next, Chief Justice Roberts found the President’s statements were “remote in

27 time and made in unrelated contexts” and did not “qualify as ‘contemporary statements’

28 probative of the decision at issue.” Id. (quoting Arlington Heights, 429 U.S. at 268).

35

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1 While a plurality opinion, this reasoning suggests that the President’s statements, which

2 have no direct connection to the Rule are not relevant to the Equal Protection analysis.

3

Applying here, plaintiffs allege both pre- and post-inauguration statements by the

4 President. The pre-inauguration statements, FAC ¶ 125, are similar to those in Regents

5 that are more remote in time and not applicable to the agency action at issue. The post-

6 inaugurations statements pertain to the same time period as the beginning of the

7 rulemaking process but are not connected to the Rule. With regard to statements by

8 other administration officials, plaintiffs cite statements by Cuccinelli that were made at a

9 press conference discussing the Rule. As discussed above, Cuccinelli was appointed

10 two months before DHS promulgated the Rule and plaintiffs have not alleged Cuccinelli

11 was involved in the rulemaking process. Even assuming his statements plausibly

12 demonstrate discriminatory intent, plaintiffs have not alleged he was a relevant actor in

13 the rulemaking process. This reasoning also applies to the statement by acting director

14 Morgan, who has no apparent connection to the Rule. Finally, plaintiffs’ citation of

15 various executive actions is similar to their disparate impact argument. It may be true

16 that this administration’s action falls more heavily on immigrants and non-immigrants

17 from non-White, non-European countries, but disparate impact by itself is insufficient to

18 state a claim for an Equal Protection violation.

19

In sum, plaintiffs have identified a few statements made in unrelated contexts by

20 the President and comments from a DHS official who is not alleged to have any

21 connection to the rulemaking process, other than defending it after it was promulgated.

22 They have not alleged sufficient factual matter concerning statements by decisionmakers.

23

iii. Departure from Normal Procedures

24

Plaintiffs also contend that the Rule departed from normal procedures as

25 evidenced by the efforts of White House advisor Stephen Miller’s comments to fast-track

26 the Rule to completion. Id. ¶ 131 (“[T]he timing on public charge is unacceptable . . . I

27 don’t care what you need to do to finish it on time.”); see also id. ¶ 132. Plaintiffs’

28 allegations barely raise an inference of an improper departure from the norm. Cf.

36

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1 Regents, 908 F.3d at 519 (“DACA received reaffirmation by the agency as recently as

2 three months before the rescission, only to be hurriedly cast aside on what seems to

3 have been a contrived excuse (its purported illegality). This strange about-face, done at

4 lightning speed, suggests that the normal care and consideration within the agency was

5 bypassed.”). Plaintiffs’ allegations that the Rule was fast tracked do not raise an

6 inference of discriminatory intent. This rulemaking process was not a 3-month about-

7 face; the NPRM began a year before the final Rule was published, received hundreds of

8 thousands of comments, which prompted some changes to the Rule. At most, they

9 plausibly allege that defendants wanted to implement the Rule sooner rather than later.

10

In light of the foregoing, plaintiffs have not alleged sufficient factual matter to state

11 a claim for an Equal Protection violation. The court GRANTS defendants’ motion to

12 dismiss plaintiffs’ fifth cause of action. Because plaintiffs could allege additional factual

13 matter, the dismissal is with leave to amend.8

14

8. Whether the President is a Proper Defendant

15

Defendants also argue that the court should dismiss the President as a defendant

16 because plaintiffs lack an express or implied equitable cause of action to sue the

17 President. Mtn. at 22. Plaintiffs respond that courts routinely issue relief enjoining the

18 official actions of a sitting President. Opp. at 24.

19

Generally, courts lack “jurisdiction of a bill to enjoin the President in the

20 performance of his official duties.” Franklin v. Massachusetts, 505 U.S. 788, 802–03

21 (1992) (plurality opinion) (quoting Mississippi v. Johnson, 71 U.S. (4 Wall. ) 475, 501

22 (1866)). In narrow circumstances, the Supreme Court has held that the President might

23 be subject to a judicial injunction. For example, United States v. Nixon, 418 U.S. 683

24 (1974), held that the President may be subject to a subpoena to provide information

25

26 8 Other district courts have found that plaintiffs in those cases have alleged sufficient

27

factual allegations to state a claim for violation of the Equal Protection component of the Fifth Amendment. See New York, 2020 WL 4347264, at *6; Cook Cty., Ill., 2020 WL

28

2542155, at *3–5. These other cases suggest that plaintiffs could allege additional facts such that amendment of their complaint is not futile.

37

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1 relevant to an ongoing criminal prosecution. Plaintiffs have not cited a specific case that

2 would authorize the court to depart from the general rule against enjoining the President.

3

It does not follow, however, that the court should therefore dismiss the President

4 as a defendant. Franklin noted that “the President’s actions may still be reviewed for

5 constitutionality,” though not under the APA because the President is not an “agency” for

6 purposes of the APA. 505 U.S. at 800–01 (citing Youngstown Sheet & Tube Co. v.

7 Sawyer, 343 U.S. 579 (1952); and Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)).

8 At this stage, the court declines to decide whether the President should be dismissed.

9 Defendants have not presented authority for the proposition that the President should

10 dismissed from this action, as opposed to enjoined from taking a specific action. At the

11 same time, plaintiffs have not cited any authority authorizing the court to enjoin the

12 President, assuming they are able to state a claim outside of the APA. See also id. at

13 828 (Scalia, J., concurring in part and concurring in the judgment) (“Review of the legality

14 of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers

15 who attempt to enforce the President’s directive . . . .” (citations omitted)). Because this

16 order dismisses all non-APA claims against defendants, the court need not opine further

17 on this issue.

18

CONCLUSION

19

For the foregoing reasons, the court DENIES defendants’ motion to dismiss with

20 respect to their standing, ripeness, and zone of interest challenges and with respect to

21 plaintiffs’ third, fifth, and eighth causes of action pertaining to McAleenan’s appointment.

22 Defendants’ motion to dismiss plaintiffs’ fourth, sixth, and eighth causes of action

23 pertaining to Cuccinelli’s appointment in violation of the APA, FVRA, and Declaratory

24 Judgment Act is GRANTED, and the claims are DISMISSED WITHOUT LEAVE TO

25 AMEND; and defendants’ motion to dismiss plaintiffs’ seventh cause of action for

26 violation of the Fifth Amendment is GRANTED, and the claim is DISMISSED WITH

27 LEAVE TO AMEND. Further, the court DEFERS RULING ON defendants’ motion to

28 38

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1 dismiss plaintiffs’ first and second causes of action.9 Plaintiffs will be permitted to file an

2 amended complaint after resolution of the deferred claims.

3

IT IS SO ORDERED.

4 Dated: November 25, 2020

5

/s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

6

United States District Judge

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

9 On April 1, 2020, the court granted in part and denied in part plaintiffs’ motion to compel discovery. Dkt. 157. The court also stayed discovery “until resolution of defendants’

28

forthcoming motion to dismiss.” Id. at 31. Because this order defers ruling on two of plaintiffs’ claims, the court’s prior stay order remains in effect.

39

 
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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

LA CLINICA DE LA RAZA, et al.,

8

Plaintiffs,

Case No. 19-cv-04980-PJH

9

v.

10

DONALD J. TRUMP, et al.,

11

Defendants.

12

ORDER GRANTING IN PART, DENYING IN PART, AND DEFERRING RULING IN PART ON MOTION TO DISMISS
Re: Dkt. No. 166

13

14

Before the court is defendants Donald J. Trump, the Department of Homeland

15 Security (“DHS”), the U.S. Citizenship and Immigration Service (“USCIS”), Chad Wolf,1

16 and Kenneth Cuccinelli’s (collectively “defendants”) motion to dismiss. The matter is fully

17 briefed and suitable for decision without oral argument. Having read the parties’ papers

18 and carefully considered their arguments and the relevant legal authority, and good

19 cause appearing, the court hereby rules as follows.

20

BACKGROUND

21

This case involves a challenge to the implementation of the final rule entitled

22 “Inadmissibility on Public Charge Grounds,” published by DHS on August 14, 2019. See

23 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“the

24 Rule”). On October 10, 2018, DHS began the rulemaking process to create a new

25 framework for the public charge assessment by publishing a Notice of Proposed

26

27 1 Kevin McAleenen was originally named in the complaint, (Dkt. 1, ¶ 48); however, the

28

FAC reflects the fact that Chad Wolf has replaced McAleenan as acting Secretary of Homeland Security.

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1 Rulemaking (“NPRM”). See Inadmissibility on Public Charge Grounds, 83 Fed. Reg.

2 51,114 (Oct. 10, 2018). The Rule was originally set to become effective on October 15,

3 2019.

4

Publication of the Rule resulted in several complaints filed in federal district courts

5 across the nation. Three such complaints were filed in the Northern District of California

6 and related before this court. Dkt. 24. The present motion involves one of the three

7 cases: La Clínica de la Raza, et al. v. Donald J. Trump, et al., Case No. 19-cv-04980-

8 PJH, wherein the La Clínica De La Raza and California Primary Care Association (the

9 two together are the “healthcare organizations”), Maternal and Child Health Access,

10 Farmworker Justice, Council on American Islamic Relations–California, African

11 Communities Together, Legal Aid Society of San Mateo County, Central American

12 Resource Center, and Korean Resource Center (the “legal organizations” and, together

13 with the healthcare organizations, the “organizational plaintiffs” or “plaintiffs”) filed a first

14 amended complaint (“FAC”) asserting eight causes of action: (1) Violation of the

15 Administrative Procedure Act (“APA”), 5 U.S.C. § 706—Contrary to Law; (2) Violation of

16 APA, 5 U.S.C. § 706—Arbitrary and Capricious; (3) Violation of APA, 5 U.S.C. § 706—

17 Arbitrary and Capricious; (4) Violation of APA, 5 U.S.C. § 706—Arbitrary and Capricious;

18 (5) Violation of the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345 et seq., and

19 DHS Organic Statute, 6 U.S.C. § 113; (6) Violation of the Federal Vacancies Reform Act,

20 5 U.S.C. § 3345 et seq.; (7) Violation of the Fifth Amendment; and (8) Declaratory

21 Judgment Act—Unlawfully Appointed Agency Director. Dkt. 161.

22

On October 11, 2019, this court issued a preliminary injunction enjoining

23 defendants from applying the Rule to any person residing in the City and County of San

24 Francisco, Santa Clara County, the States of California, Oregon, or Maine, the

25 Commonwealth of Pennsylvania, or the District of Columbia. Dkt. 131 at 92. Defendants

26 appealed the preliminary injunction on October 30, 2019. Dkt. 129. A three-judge panel

27

28 2

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1 of the Ninth Circuit stayed the preliminary injunction on December 5, 2019.2 Dkt. 141;

2 see City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 944 F.3d 773

3 (9th Cir. 2019). On February 18, 2020, the Ninth Circuit panel voted to deny plaintiffs-

4 appellees’ motions for reconsideration and for rehearing en banc. Dkt. 153. Other

5 district courts also issued preliminary injunctions prohibiting enforcement of the Rule, but

6 these were ultimately stayed by the Supreme Court. See Dep’t of Homeland Security v.

7 New York, 140 S. Ct. 599 (2020); Wolf v. Cook Cty., Illinois, 140 S. Ct. 681 (2020).

8 Accordingly, the Rule went into effect on February 24, 2020. Most recently, the district

9 court for the Southern District of New York enjoined the Rule as long as the government

10 has declared a public health emergency related to COVID-19. See New York v. Dep’t of

11 Homeland Sec., — F. Supp. 3d —, Nos. 19 Civ. 7777 (GBD), 19 Civ. 7993 (GBD), 2020

12 WL 4347264, at *14 (S.D.N.Y. July 29, 2020).

13

A broader summary of the relevant statutory framework and the changes

14 implemented by the Rule may be found in the court’s preliminary injunction order. Dkt.

15 131 at 6–10. To briefly summarize here, DHS promulgated the Rule pursuant to its

16 authority under the INA, 8 U.S.C. § 1101, et seq., which requires that all noncitizens

17 seeking to be lawfully admitted into the United States or to become lawful permanent

18 residents prove they are not inadmissible. 8 U.S.C. §§ 1361, 1225(a). A noncitizen may

19 be deemed inadmissible on any number of grounds, including that they are “likely at any

20 time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). The statute directs

21 immigration officials to form an opinion as to whether the applicant “is likely at any time to

22 become a public charge.” Id. In forming that opinion, immigration officers must consider

23 “at a minimum” five statutorily-defined factors: (1) age; (2) health; (3) family status; (4)

24 assets, resources, and financial status; (5) education and skills. 8 U.S.C.

25

26 2 The panel consolidated the three related cases before this court with a similar case

27

from the Eastern District of Washington. That court issued a nationwide injunction of the Rule on the same day as this court’s geographically limited preliminary injunction order.

28

Washington v. U.S. Dep’t of Homeland Security, 408 F. Supp. 3d 1191, 1224 (E.D. Wash. 2019).

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1 § 1182(a)(4)(B)(i). The Rule would define the term “public charge” and set out various

2 criteria for government officials as part of their totality of the circumstances determination.

3

DISCUSSION

4 A. Legal Standard

5

1. Rule 12(b)(1)

6

A federal court may dismiss an action under Federal Rule of Civil Procedure

7 12(b)(1) for lack of federal subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule

8 12(h)(3) similarly provides that a court “must dismiss the action” if it “determines at any

9 time that it lacks subject-matter jurisdiction.” Fed. R. Civ. P. 12(h)(3). “Federal courts are

10 courts of limited jurisdiction” and the burden of establishing subject matter jurisdiction

11 “rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

12 511 U.S. 375, 377 (1994) (citations omitted).

13

A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer,

14 373 F.3d 1035, 1039 (9th Cir. 2004). When the attack is facial, the court determines

15 whether the allegations contained in the complaint are sufficient on their face to invoke

16 federal jurisdiction. Id. Where the attack is factual, however, “the court need not

17 presume the truthfulness of the plaintiff’s allegations.” Id.

18

When resolving a factual dispute about its federal subject matter jurisdiction, a

19 court may review extrinsic evidence beyond the complaint without converting a motion to

20 dismiss into one for summary judgment. McCarthy v. United States, 850 F.2d 558, 560

21 (9th Cir. 1988) (holding that a court “may review any evidence, such as affidavits and

22 testimony, to resolve factual disputes concerning the existence of jurisdiction”); see also

23 Land v. Dollar, 330 U.S. 731, 735 n.4 (1947) (“[W]hen a question of the District Court’s

24 jurisdiction is raised . . . the court may inquire by affidavits or otherwise, into the facts as

25 they exist.”). “Once the moving party has converted the motion to dismiss into a factual

26 motion by presenting affidavits or other evidence properly brought before the court, the

27 party opposing the motion must furnish affidavits or other evidence necessary to satisfy

28 its burden of establishing subject matter jurisdiction.” Safe Air for Everyone, 373 F.3d at

4

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1 1039.

2

The Ninth Circuit has noted that “jurisdictional dismissals in cases premised on

3 federal-question jurisdiction are exceptional, and must satisfy the requirements specified

4 in Bell v. Hood, 327 U.S. 678 (1946).” Safe Air for Everyone, 373 F.3d at 1039 (quoting

5 Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983)). “In Bell, the

6 Supreme Court determined that jurisdictional dismissals are warranted ‘where the alleged

7 claim under the constitution or federal statutes clearly appears to be immaterial and

8 made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly

9 insubstantial and frivolous.’” Id. (quoting Bell, 327 U.S. at 682–83).

10

2. Rule 12(b)(6)

11

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the

12 legal sufficiency of the claims alleged in the complaint. Ileto v. Glock Inc., 349 F.3d 1191,

13 1199–1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that

14 a complaint include a “short and plain statement of the claim showing that the pleader is

15 entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule

16 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient

17 facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th

18 Cir. 2013).

19

While the court is to accept as true all the factual allegations in the complaint,

20 legally conclusory statements, not supported by actual factual allegations, need not be

21 accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The complaint must proffer

22 sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v.

23 Twombly, 550 U.S. 544, 555, 558–59 (2007).

24

“A claim has facial plausibility when the plaintiff pleads factual content that allows

25 the court to draw the reasonable inference that the defendant is liable for the misconduct

26 alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court

27 to infer more than the mere possibility of misconduct, the complaint has alleged—but it

28 has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ.

5

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1 P. 8(a)(2)). Where dismissal is warranted, it is generally without prejudice, unless it is

2 clear the complaint cannot be saved by any amendment. In re Daou Sys., Inc., 411 F.3d

3 1006, 1013 (9th Cir. 2005).

4

Review is generally limited to the contents of the complaint, although the court can

5 also consider documents “whose contents are alleged in a complaint and whose

6 authenticity no party questions, but which are not physically attached to the plaintiff’s

7 pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon

8 Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999), superseded by statute on

9 other grounds as stated in In re Quality Sys., Inc. Sec. Litig., 865 F.3d 1130 (9th Cir.

10 2017)); see also Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007) (“[A] court can

11 consider a document on which the complaint relies if the document is central to the

12 plaintiff’s claim, and no party questions the authenticity of the document.” (citation

13 omitted)). The court may also consider matters that are properly the subject of judicial

14 notice (Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001)), and exhibits

15 attached to the complaint (Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

16 1542, 1555 n.19 (9th Cir. 1989)).

17 B. Analysis

18

1. Standing

19

Federal courts may adjudicate only actual cases or controversies, U.S. Const.

20 art. III, § 2, and may not render advisory opinions as to what the law ought to be or

21 affecting a dispute that has not yet arisen. Aetna Life Ins. Co. of Hartford, Conn. v.

22 Haworth, 300 U.S. 227, 240 (1937). Article III’s “standing” requirements limit the court’s

23 subject matter jurisdiction. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004)

24 (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998)). The

25 burden of establishing standing rests on the party asserting the claim. Renne v. Geary,

26 501 U.S. 312, 316 (1991) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

27 546 n.8 (1986)). “In order to establish Article III standing, a plaintiff must have (1)

28 suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the

6

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1 defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

2 California v. Trump, 963 F.3d 926, 935 (9th Cir. 2020) (citing Lujan v. Defs. of Wildlife,

3 504 U.S. 555, 560–61 (1992)). “[A]t the pleading stage, the plaintiff must ‘clearly . . .

4 allege facts demonstrating’ each element.” Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1547

5 (2016) (second alteration in original) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).

6

“At least one plaintiff must have standing to seek each form of relief requested,

7 and that party bears the burden of establishing the elements of standing with the manner

8 and degree of evidence required at the successive stages of the litigation.” E. Bay

9 Sanctuary Covenant v. Trump (“E. Bay Sanctuary I”), 932 F.3d 742, 763–64 (9th Cir.

10 2018) (internal quotation marks and citations omitted). They “need only establish a risk

11 or threat of injury to satisfy the actual injury requirement.” Id.; see also Dep’t of

12 Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (noting that future injuries to

13 states “may suffice if the threatened injury is certainly impending, or there is a substantial

14 risk that the harm will occur” (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149,

15 158 (2014))).

16

Organizations can demonstrate standing in two ways. First, they can show “that

17 the challenged ‘practices have perceptibly impaired [their] ability to provide the services

18 [they were] formed to provide.’” E. Bay Sanctuary I, 932 F.3d at 765 (alterations in

19 original) (quoting El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review,

20 959 F.2d 742, 748 (9th Cir. 1991)). “[A] diversion-of-resources injury is sufficient to

21 establish organizational standing for purposes of Article III if the organization shows that,

22 independent of the litigation, the challenged policy frustrates the organization’s goals and

23 requires the organization to expend resources in representing clients they otherwise

24 would spend in other ways.” Id. (internal quotation marks and citations omitted).

25 Second, organizations can also demonstrate that a government policy “will cause them to

26 lose a substantial amount of funding. ‘For standing purposes, a loss of even a small

27 amount of money is ordinarily an injury.’” Id. at 766–67 (internal quotation marks omitted)

28 (quoting Czyzewski v. Jevic Holding Corp., 137 U.S. 973, 983 (2017)).

7

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1

In the preliminary injunction order, the court found that the harm alleged by

2 plaintiffs was sufficient to create standing. Dkt. 131 at 85. The court noted evidence

3 from both the healthcare organizations and the legal organizations that the Rule would

4 cause them to either divert resources from their core missions or would frustrate the

5 purpose of the organization. Id. at 84–85. The court also found persuasive evidence that

6 plaintiffs would have to divert funding because clients who may still be eligible for relief

7 would require additional time and resources from plaintiffs thereby depleting funds that

8 would be used elsewhere. Id. at 85. Some plaintiffs would have increased operational

9 costs in order to address the impact of the Rule on their services. Id.

10

In their present motion, defendants assert that plaintiffs have not demonstrated

11 that they would have suffered some other injury if they had not diverted resources to

12 counteracting the problem caused by the government action. Mtn. at 6. More

13 specifically, while plaintiffs allege that they have expended or will expend additional

14 resources, defendants contend that plaintiffs have not identified some other injury they

15 will suffer if they do not divert resources towards addressing their concerns. Id. Plaintiffs

16 argue that they have sufficiently alleged that they have diverted and will divert resources

17 to counteract the effects of the Rule. Opp. at 4. They also contend that they will face

18 direct financial consequences from the Rule because a decrease in the use of benefits

19 and plaintiffs’ services will reduce funding streams connected to provision of services. Id.

20

Defendants’ renewed standing argument does not alter this court’s prior findings.

21 Defendants cite La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest,

22 624 F.3d 1083, 1088 (9th Cir. 2010), for the proposition that an organization “must . . .

23 show that it would have suffered some other injury if it had not diverted resources to

24 counteracting the problem.” Organizations “cannot manufacture the injury by incurring

25 litigation costs or simply choosing to spending money fixing a problem that otherwise

26 would not affect the organization at all.” Id. (citation omitted). Plaintiffs have adequately

27 alleged that the Rule will cause them to divert resources that would otherwise be spent

28 helping some clients and providing other core services and redirecting those resources to

8

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1 help clients who choose to apply for benefits and may be subject to the Rule. First,

2 plaintiffs demonstrate that they will be injured by the Rule if they do nothing. For

3 example, La Clínica produced evidence that the Rule would increase the organization’s

4 no-show rate due to a decrease in patients seeking care. Dkt. 35-5, ¶ 16. La Clínica

5 went on to explain that it receives a large portion of its revenue from Medi-Cal such that

6 disenrollment or non-enrollment in Medi-Cal would negatively affect La Clínica’s revenue.

7 This harm is and will continue to occur regardless of whether plaintiffs divert resources to

8 respond to the Rule.

9

Next, in response to the pending loss of resources, plaintiffs demonstrate that they

10 diverted and will continue to divert resources. For example, La Clínica presented

11 evidence that it would have to retrain staff on a new enrollment process in response to

12 the Rule, staff that would otherwise be treating patients. Id. ¶ 21. One of plaintiff

13 California Primary Care Association’s (“CPCA”)3 members, Asian Health Services,

14 presented evidence that at the time of the Rule’s promulgation, it had spent $500,000

15 developing a national education campaign and expected to spend an additional $500,000

16 once the Rule was released. Dkt. 35-11, ¶¶ 26–29. This money would have been used

17 to advance other community organizing priorities. Accordingly, plaintiffs have sufficiently

18 demonstrated standing under a diversion of resources theory.

19

Separately, plaintiffs have also alleged that they will suffer direct financial

20 consequences as a result of the Rule because the Rule will cause a decrease in the use

21 of plaintiffs’ services and a corresponding reduction in funding streams connected to

22 provision of those services. See FAC ¶¶ 17, 21, 25, 33, 38, 40; Dkt. 35-5, ¶ 18 (La

23 Clínica’s CEO stating “La Clínica expects to lose a significant amount of funding and

24

25

3 Defendants challenge CPCA’s associational standing on the grounds that CPCA has neither alleged nor provided evidence of associational standing. Mtn. at 5 n.2. CPCA is

26

an association of various organizations and is bringing suit on behalf of its members. FAC ¶ 18. In its prior order, the court determined that La Clínica and CPCA’s member,

27

Asian Health Services, had diverted resources such that they had standing. Dkt. 131 at 84. Other than citing a case for the requirements for associational standing, defendants

28

put forward no further argument explaining why the court’s prior finding should not apply here.

9

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1 revenue if the Rule is implemented”). As cited above, organizations “can demonstrate

2 organizational standing by showing that the Rule will cause them to lose a substantial

3 amount of funding.” E. Bay Sanctuary I, 932 F.3d at 766–67. Defendants make no effort

4 to challenge plaintiffs’ allegations or evidence that plaintiffs will suffer a loss in funding.

5

Instead, defendants only argue that any loss in funding would be commensurate

6 with a decrease in the quantity of services provided such that plaintiffs have not suffered

7 any net financial harm. Reply at 1–2. Defendants’ argument contorts the injury-in-fact

8 requirement beyond what is required by plaintiffs and cite no authority that a plaintiff not

9 only has to show injury but also a “net” injury. The Ninth Circuit rejected a similar

10 argument that a hospice provider could only have standing to challenge a regulation if the

11 provider suffered a net increase in its overpayment liability. See L.A. Haven Hospice,

12 Inc. v. Sebelius, 638 F.3d 644, 657 (9th Cir. 2011); see also Aluminum Co. of Am. v.

13 Bonneville Power Admin., 903 F.2d 585, 590 (9th Cir. 1989) (“There is harm in paying

14 rates that may be excessive, no what the California utilities may have saved.”). Simply

15 put, defendants’ argument is not the test for standing. “[A]n organization that suffers a

16 decreased ‘amount of business’ and ‘lost revenue’ due to a government policy ‘easily

17 satisf[ies] the injury in fact standing requirement.’” E. Bay Sanctuary I, 932 F.3d at 767

18 (second alteration in original) (internal quotation marks omitted) (quoting Constr. Indus.

19 Ass’n Sonoma Cty. v. City of Petaluma, 522 F.2d 897, 903 (9th Cir. 1975)). By

20 demonstrating a reduction in funding, plaintiffs have sufficiently alleged the Rule has and

21 will continue to harm them.

22

For the foregoing reasons, the court DENIES defendants’ motion with respect to

23 standing.

24

2. Ripeness

25

“Ripeness is an Article III doctrine designed to ensure that courts adjudicate live

26 cases or controversies and do not ‘issue advisory opinions [or] declare rights in

27 hypothetical cases.’ A proper ripeness inquiry contains a constitutional and a prudential

28 component.” Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1153 (9th Cir. 2017)

10

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1 (alteration in original) (quoting Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d

2 1134, 1138 (9th Cir. 2000) (en banc)).

3

“For a case to be ripe, it must present issues that are definite and concrete, not

4 hypothetical or abstract. Constitutional ripeness is often treated under the rubric of

5 standing because ripeness coincides squarely with standing’s injury in fact prong.” Id.

6 (internal quotation marks and citation omitted); see Thomas, 220 F.3d at 1138–39

7 (“Sorting out where standing ends and ripeness begins is not an easy task. . . . [I]n

8 ‘measuring whether the litigant has asserted an injury that is real and concrete rather

9 than speculative and hypothetical, the ripeness inquiry merges almost completely with

10 standing.’” (citation omitted)). Allegations that a “threat” to a “concrete interest is actual

11 and imminent” are sufficient to allege “an injury in fact that meets the requirements of

12 constitutional ripeness.” Bishop Paiute Tribe, 863 F.3d at 1154. Therefore, if plaintiffs

13 satisfy the Article III standing requirements under Lujan v. Defenders of Wildlife,

14 addressed above, the action here is ripe. See, e.g., Thomas, 220 F.3d at 1139

15 (“Whether the question is viewed as one of standing or ripeness, the Constitution

16 mandates that prior to our exercise of jurisdiction there exist a constitutional ‘case or

17 controversy,’ that the issues presented are ‘definite and concrete, not hypothetical or

18 abstract.’ . . . We need not delve into the nuances of the distinction between the injury in

19 fact prong of standing and the constitutional component of ripeness: in this case, the

20 analysis is the same.” (citations omitted)).

21

“In evaluating the prudential aspects of ripeness, our analysis is guided by two

22 overarching considerations: ‘the fitness of the issues for judicial decision and the

23 hardship to the parties of withholding court consideration.’” Id. at 1141 (quoting Abbott

24 Labs. v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v.

25 Sanders, 430 U.S. 99 (1977)). When the question presented “is ‘a purely legal one’” that

26 “constitutes ‘final agency action’ within the meaning of § 10 of the APA,” that suggests

27 the issue is fit for judicial decision. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S.

28 803, 812 (2003). However, an issue may not be ripe for review if “further factual

11

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1 development would ‘significantly advance our ability to deal with the legal issues

2 presented.’” Id. (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59,

3 82 (1978)).

4

In this case, the court has determined that plaintiffs have standing, therefore, it

5 follows that the case is constitutionally ripe for adjudication. See Thomas, 220 F.3d at

6 1139. The court has not previously addressed prudential ripeness. Defendants contend

7 that plaintiffs’ claims fail the prudential ripeness standard because the claims are

8 premised on speculation about the Rule’s operation in practice and further factual

9 development is required. Mtn. at 7–8. Plaintiffs assert that the prudential ripeness

10 standard is met because the Rule is final and they are suffering injuries. Opp. at 4.

11

“Determining whether administrative action is ripe for judicial review requires [a

12 court] to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to

13 the parties of withholding court consideration.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808

14 (citing Abbott Labs., 387 U.S. at 149). When considering whether issues are fit for

15 review, the question should be a “purely legal one” and the agency action in question

16 should constitute a “‘final agency action’ within the meaning of § 10 of the APA.” Id. at

17 812 (quoting Abbott Labs., 387 U.S. at 149).

18

The second factor examines “the hardship to the parties of withholding court

19 consideration.” Id. at 808. Generally, a showing of hardship requires demonstrating that

20 the regulation in question creates “adverse effects of a strictly legal kind.” Id. at 809

21 (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)). Such

22 adverse effects do not arise if the regulation in question “do[es] not command anyone to

23 do anything or to refrain from doing anything; [it] do[es] not grant, withhold, or modify any

24 formal legal license, power, or authority; [it] do[es] not subject anyone to any civil or

25 criminal liability; [and it] create[s] no legal rights or obligations.” Id. (alterations in original)

26 (quoting Ohio Forestry Ass’n, 523 U.S. at 733).

27

Here, the challenge to the Rule in this case “is a purely legal one,” i.e., whether the

28 INA was properly construed and implemented by DHS. See Abbott Labs., 387 U.S. at

12

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1 149 (noting that “whether the statute was properly construed by the Commissioner” to be

2 a purely legal challenge). Next, the Rule constitutes a “rule” as defined by the APA. See

3 5 U.S.C. § 551(4), (13) (defining “agency action” and “rule”). The text of the Rule

4 confirms that its promulgation was an agency action. See 84 Fed. Reg. at 41,294 (“This

5 rule changes how the Department of Homeland Security (DHS) interprets and

6 implements the public charge ground of inadmissibility.”). This factor indicates the Rule

7 is ripe for review.

8

With respect to hardship, the Rule imposes potential adverse effects of a strictly

9 legal kind. If an alien falls within the Rule’s definition of a public charge as determined by

10 an immigration officer, then he or she is inadmissible. In other words, the Rule defines a

11 legal right—admissibility to the United States. Concurrently, it also defines the legal

12 powers and authorities of federal government officials in evaluating whether an alien is

13 admissible. The Rule does not define the legal rights of plaintiffs or create any legal

14 obligations directly impacting them. However, the potential adverse effects on individuals

15 cause a direct harm to plaintiffs, as discussed above with regard to plaintiffs’ standing.

16 For example, fewer individuals using plaintiffs’ services results in a corresponding

17 reduction in funding to plaintiffs.

18

Defendants argue that plaintiffs’ claims are all premised on speculation about the

19 potential future effects of the Rule and disagreement with DHS’s predictions based on

20 available evidence. Mtn. at 7–8. The Rule went into effect on February 24, 2020 after

21 the Supreme Court stayed the final remaining preliminary injunction enjoining the Rule.

22 Plaintiffs’ FAC was filed May 20, 2020. Thus, they have had a period of approximately

23 three months to assess the impact of the Rule. The FAC alleges current harms

24 stemming from the Rule. For example, plaintiff Farmworker Justice (“FJ”) alleges that

25 “[b]eginning in March 2020, FJ has been addressing concerns that farmworkers have

26 about the implications of the public charge Regulation when seeking to take action to

27 prevent or treat COVID-19.” FAC ¶ 31. Plaintiff Maternal and Child Health Access

28 (“MCHA”) alleges the “Regulation is frustrating MCHA’s mission by reducing access to

13

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1 nutrition, medical care, and adequate housing. Immigrant families who MCHA serves are

2 already disenrolling from public benefit programs, such as SNAP and Medicaid, based on

3 fears that using those programs will affect their future immigration relief options.” Id. ¶ 27

4 (emphasis added).

5

Plaintiffs’ challenge is not speculative and further factual development of the

6 Rule’s impact is not needed for purposes of ripeness. Accordingly, the court DENIES

7 defendants’ motion with respect to ripeness.

8

3. Zone of Interests

9

In order to succeed on the merits, plaintiffs must be within the zone of interests of

10 the statute that forms the basis of their challenge. The zone of interests analysis asks

11 “whether Congress created a private cause of action in legislation,” Organized Vill. of

12 Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 964 (9th Cir. 2015) (en banc), such that “this

13 particular class of persons has a right to sue under this substantive statute,” Lexmark

14 Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). It is “not a

15 question of Article III standing” and “this inquiry . . . ‘does not implicate subject-matter

16 jurisdiction . . . .’” Organized Vill. of Kake, 795 F.3d at 964 (quoting Lexmark, 572 U.S. at

17 128 & n.4). “[I]n the APA context, . . . the [zone of interests] test is not ‘especially

18 demanding.’” Lexmark, 572 U.S. at 130 (quoting Match-E-Be-Nash-She-Wish Band of

19 Pottawatomi Indians v. Patchak, 567 U.S. 209, 225–26 (2012)).

20

“Whether a plaintiff’s interest is ‘arguably . . . protected . . . by the statute’ within

21 the meaning of the zone-of-interests test is to be determined not by reference to the

22 overall purpose of the Act in question[,] . . . but by reference to the particular provision of

23 law upon which the plaintiff relies.” Bennett v. Spear, 520 U.S. 154, 175–76 (1997) (first

24 and second alterations in original) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v.

25 Camp, 397 U.S. 150, 153 (1970)). Put differently, “the plaintiff must establish that the

26 injury he complains of . . . falls within the ‘zone of interests’ sought to be protected by the

27 statutory provision whose violation forms the legal basis for his complaint.” Id. at 176

28 (alteration in original) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990); and

14

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1 citing Air Courier Conf. v. Postal Workers, 498 U.S. 517, 523–24 (1991); see also E. Bay

2 Sanctuary I, 932 F.3d at 768 n.9 (“‘[W]e are not limited to considering the [specific]

3 statute under which [plaintiffs] sued, but may consider any provision that helps us to

4 understand Congress’[s] overall purposes in the [INA].’” (alterations in original) (quoting

5 Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 401 (1987))). “[F]or APA challenges, a plaintiff

6 can satisfy the test in either one of two ways: (1) ‘if it is among those [who] Congress

7 expressly or directly indicated were the intended beneficiaries of a statute,’ or (2) ‘if it is a

8 suitable challenger to enforce the statute—that is, if its interests are sufficiently congruent

9 with those of the intended beneficiaries that the litigants are not more likely to frustrate

10 than to further . . . statutory objectives.’” California, 963 F.3d at 941–42 (second and third

11 alterations in original) (quoting Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Def., 87

12 F.3d 1356, 1359 (D.C. Cir. 1996)).

13

i.

APA Zone of Interests

14

In the preliminary injunction order, this court determined that the organizational

15 plaintiffs did not fall within the zone of interests for three reasons. First, the court

16 reasoned that simply being negatively affected by the Rule does not establish that the

17 organizational plaintiffs fell within the INA’s zone of interest. Dkt. 131 at 71. Second, the

18 organizational plaintiffs’ briefing failed to identify or explain what statutory provisions

19 supported their argument. When plaintiffs later identified a statutory section at the

20 hearing, 8 U.S.C. § 1611, they did not demonstrate how that section had any integral

21 relationship with 8 U.S.C. § 1182(a)(4) or explain how § 1611 was related to the

22 organizational plaintiffs’ role. Id. at 71–72. Third, the court explained that the

23 organizational plaintiffs “simply fail[ed] to explain how their interests related to

24 § 1182(a)(4)’s purpose of excluding immigrants likely to become public charges. Id. at

25 72.

26

Defendants argue that the court should now dismiss plaintiffs’ claims because they

27 do not fall within the zone of interests of the INA. Mtn. at 8. In particular, they argue that

28 the INA’s zone of interest extends to aliens improperly determined to be inadmissible, not

15

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1 organizations seeking to assist those aliens. Id. at 8–9. In response, plaintiffs advance

2 three reasons why they fall within the zone of interest of the INA. First, one set of

3 interests implicated by the public charge provision is to accurately identify which

4 immigrants are likely to become a public charge and deny them admission. Opp. at 7.

5 Plaintiffs allege that several of the legal organization plaintiffs represent individuals who

6 fit their description. Id. (citing FAC ¶¶ 33–37, 39–40, 42–43). Second, a second set of

7 interests implicated by the public charge provision concerns the health and economic

8 status of immigrants who are granted admission to the United States. Id. at 9. Plaintiffs

9 allege that their missions, either in whole or in part, is to protect and improve the health

10 and economic status of immigrant communities and they help immigrants avoid becoming

11 public charges. Id. Third, the Rule itself presupposes impact on and the involvement of

12 the organizational plaintiffs. Id. at 9–10.

13

The court begins with the three appellate opinions discussing the Rule.4 The Ninth

14 Circuit’s opinion staying this court’s preliminary injunction noted that the organizational

15 plaintiffs were not parties to the appeal and did not express any opinion on zone of

16 interests more generally. See City & Cty. of San Francisco, 944 F.3d at 784 n.7 & 786

17 n.8. In its order affirming a preliminary injunction staying the Rule, the Seventh Circuit

18 succinctly framed the zone of interest issue concerning an immigrant aid organization

19 plaintiff:

20

we accept that [the aid organization] helps immigrants navigate

the INA’s various requirements, including the public-charge

21

rule, and it has an interest in ensuring that immigrants are not

improperly denied adjustment of status or removed from the

22

country because of confusion over DHS’s Rule. But the link

23

24

4 The Fourth Circuit recently issued an opinion reversing a preliminary injunction enjoining the Rule. Casa de Md., Inc. v. Trump, No. 19-2222, (4th Cir. Aug. 5, 2020).

25

The court found that the organization plaintiff in that case did not have standing and, therefore, did not address the zone of interests test. The Fourth Circuit’s holding with

26

regard to standing does not compel a different result here. There, the court reasoned that the organization’s voluntary “budgetary choice[]” like spending money on legal action

27

is not a cognizable Article III injury. Slip. op. at 23. Here, plaintiffs have demonstrated loss in revenue due to disenrollment or non-utilization of services for which they are

28

reimbursed. In other words, because plaintiffs are harmed regardless of their voluntary budgetary choices, they have standing.

16

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between these injuries and the purpose of the public-charge

1

part of the statute is more attenuated, and thus it is harder to

say that the injury [the organization] has asserted meets the

2

“zone-of-interests” test.

3 Cook Cty., Illinois v. Wolf, 962 F.3d 208, 221 (7th Cir. 2020). The court declined to

4 resolve the organization’s status since only one plaintiff was required to demonstrate it

5 fell within the zone of interests and a different plaintiff, Cook County, met that criteria. Id.

6 at 220. Most recently, the Second Circuit, in an opinion affirming a preliminary injunction

7 enjoining the Rule, held that aid organizations were within the zone of interests. New

8 York v. Dep’t of Homeland Sec., — F.3d —, Nos. 19-3591, 19-3595, 2020 WL 4457951,

9 at *12 (2d Cir. Aug. 4, 2020). The court reasoned that the organizations’

10 11 12 13 14 Id.

interests stem from their assorted missions to increase noncitizen well-being and status, which they express in their work to provide legal and social services to non-citizens. An overbroad interpretation of the public charge ground, tipping the balance too far in the direction of exclusion at the expense of admission in the interest of family unity and economic vitality, imperils both these interests.

15

As an initial observation, the INA’s public charge provision does not directly

16 regulate the conduct of or benefit plaintiffs. The observation is not dispositive because in

17 East Bay Sanctuary I, the Ninth Circuit noted that aid organizations’ purpose in aiding

18 immigrants seeking asylum was consistent with the INA’s purpose to establish the

19 statutory procedure for granting asylum to refugees. 932 F.3d at 768. In support of that

20 statement, the court cited statutory sections in which “Congress took steps to ensure that

21 pro bono legal services of the type that the [aid organizations] provide are available to

22 asylum seekers.” Id. (citing 8 U.S.C. § 1158(d)(4)(A)–(B)). The court also cited other

23 statutory provisions in the INA which “give institutions like the [aid organizations] a role in

24 helping immigrants navigate the immigration process.” Id. (citing, e.g., 8 U.S.C.

25 § 1101(i)(1)). While plaintiffs here do not cite a mandate similar to § 1158(d)(4), they cite

26 the same sections as in East Bay Sanctuary I as evidence of Congress’s intent that

27 organizations have a role in helping immigrants navigate the immigration process.

28

Unlike the preliminary injunction briefing and hearing, plaintiffs have now identified

17

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1 statutory provisions that bring them within the zone of interest. Notably, the public charge

2 provision excludes from its ambit any person who “is an applicant for, or is granted,

3 nonimmigrant status under section 1101(a)(15)(U). 8 U.S.C. § 1182(a)(4)(E)(ii). In turn,

4 8 U.S.C. § 1101(a)(15)(U) cross references § 1184(p) and § 1184(p)(3)(A) requires the

5 Attorney General and other government officials, where appropriate, to refer potential U

6 visa applicants to nongovernmental organizations. Similarly, the public charge provision

7 excludes persons who are “a qualified alien described in section 1641(c).” 8 U.S.C.

8 § 1182(a)(4)(E)(iii). In turn, 8 U.S.C. § 1641(c)(4) includes “an alien who has been

9 granted nonimmigrant status under section 1101(a)(15)(T)” and § 1101(i)(1) requires “the

10 Secretary of Homeland Security, the Attorney General, and other Government officials,

11 where appropriate, [to] provide the alien with a referral to a nongovernmental

12 organization” for nonimmigrant aliens described in 8 U.S.C. § 1101(a)(15)(T)(i). Thus,

13 “[t]hese statutes, which directly rely on institutions like [plaintiffs] to aid immigrants, are a

14 sufficient ‘indicator that the plaintiff[s] [are] peculiarly suitable challenger[s] of

15 administrative neglect . . . support[ing] an inference that Congress would have intended

16 eligibility’ to bring suit.” E. Bay Sanctuary I, 932 F.3d at 769 (third through seventh

17 alterations in original) (quoting Hazardous Waste Treatment Council v. EPA, 861 F.2d

18 277, 283 (D.C. Cir. 1988)).

19

Moreover, the injury that plaintiffs complain of is within the zone of interests.

20 Plaintiffs allege they have been harmed and will be harmed by a decrease in utilization of

21 their services by aliens who are or believe they are subject to the Rule. As discussed,

22 the public charge provision references other statutory sections that require, where

23 appropriate, government officials to refer aliens to nongovernmental organizations.

24

Additionally, plaintiffs can show they are suitable challengers if their “interests are

25 sufficiently congruent with those of the intended beneficiaries that the litigants are not

26 more likely to frustrate than to further . . . statutory objectives.” California, 963 F.3d at

27 942. “The test forecloses suit only when a plaintiff’s interests are so marginally related to

28 or inconsistent with the purposes implicit in the statute that it cannot reasonably be

18

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1 assumed that Congress intended to permit the suit.” Id. (internal quotation marks

2 omitted) (quoting Match-E-Be-Nash-She-Wish, 567 U.S. at 225). In considering this

3 prong of the zone of interests test, the court finds persuasive the Second Circuit’s opinion

4 that determined the organizations there were among “‘those who in practice can be

5 expected to police the interests that the statute protects[,]’ namely, the admission of non-

6 citizens who will be self-sufficient and the exclusion of those who will not.” New York,

7 2020 WL 4457951, at *12 (alteration in original) (quoting Fed. Defs. of N.Y., Inc. v. Fed.

8 Bureau of Prisons, 954 F.3d 118, 131 (2d Cir. 2020); and citing Bank of Am. Corp. v. City

9 of Miami, 137 S. Ct. 1296, 1304 (2017)).

10

Defendants quote an in chambers opinion issued by Justice O’Connor that

11 determined that aid organizations were outside the zone of interests of the Immigration

12 Reform and Control Act of 1986 (“IRCA”). I.N.S. v. Legalization Assistance Proj. of L.A.

13 Cty. Fed’n of Labor, 510 U.S. 1301, 1302, 1305 (1993) (O’Connor, J., in chambers).

14 Justice O’Connor wrote “IRCA was clearly meant to protect the interests of

15 undocumented aliens, not the interests of organizations such as respondents.” Id. at

16 1305. Other district courts have distinguished this statement on the grounds that Justice

17 O’Connor’s opinion was non-precedential and predates the Court’s opinions in Match-E-

18 Be-Nash-She-Wish Band and Lexmark. Cook Cty., Illinois v. McAleenan, 417 F. Supp.

19 3d 1008, 1021 (N.D. Ill. 2019); see Capital Area Immigrants’ Rights Coal. v. Trump, — F.

20 Supp. 3d —, No. CV 19-2117 (TJK), 2020 WL 3542481, at *11 (D.D.C. June 30, 2020)

21 (same). While these reasons might be valid, more persuasive is the fact that Legalization

22 Assistance Project dealt with IRCA, 8 U.S.C. § 1255a, and not the public charge

23 provision. As discussed above, the public charge provision incorporates other statutory

24 sections providing for referrals by government officials to nongovernmental organizations

25 thereby implicating their interests. Legalization Assistance Project also reasoned “[t]he

26 fact that the INS regulation may affect the way an organization allocates its resources . . .

27 does not give standing to an entity which is not within the zone of interests the statute

28 meant to protect.” 510 U.S. at 1305 (citation omitted). Here, the injury is not just

19

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1 diversion of resources but also a loss of resources tied to decreased utilization of

2 plaintiffs’ services. This factual difference is such that, even if Legalization Assistance

3 Project were precedential, it would not apply in this case.

4

In sum, plaintiffs have put forward a more convincing argument than the one

5 advanced at the preliminary injunction stage. Critically, the Supreme Court “has

6 repeatedly emphasized that the zone of interests test is ‘not especially demanding’ in the

7 APA context.” California, 963 F.3d at 941 (quoting Lexmark, 572 U.S. at 130).

8 Accordingly, the court cannot say as a matter of law that plaintiffs fall outside the zone of

9 interests with regard to their APA claims.

10

ii.

Whether Zone of Interests Applies to Constitutional Claims

11

Next, defendants contend that plaintiffs’ Fifth Amendment claims fail the zone of

12 interests test because the Supreme Court has suggested that there is a heightened zone

13 of interests requirement for implied causes of action such as plaintiffs’ constitutional

14 claim. Mtn. at 8 n.2. Yet, in the very case that defendants cite for this proposition, Clarke

15 v. Securities Industry Association, 479 U.S. at 396, 400 n.16, the Court cautioned that

16 “[w]hile inquiries into reviewability or prudential standing in other [non-APA] contexts may

17 bear some resemblance to a ‘zone of interest’ inquiry under the APA, it is not a test of

18 universal application.” The Court went on to distinguish earlier dicta suggesting a zone of

19 interest inquiry was applicable to constitutional claims, stating “[w]e doubt, however, that

20 it is possible to formulate a single inquiry that governs all statutory and constitutional

21 claims.” Id. (citing Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,

22 153 (1970)). As plaintiffs point out, the Ninth Circuit has also questioned whether a zone

23 of interests test can be applied in light of the Court’s decision in Lexmark, which focused

24 on Congress’s intent in creating statutory causes of action as opposed to causes of

25 action that arise under the Constitution. See Sierra Club v. Trump, 929 F.3d 670, 701–02

26 (9th Cir. 2019) (“[W]e doubt that any zone of interests test applies to Plaintiffs’ equitable

27 cause of action.”). Accordingly, the court declines to apply a zone of interest test to

28 plaintiffs’ constitutional claims.

20

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1

In sum, the zone of interests test is not “especially demanding,” Lexmark, 572 U.S.

2 at 130, and, “at the very least, the [states’] interests are ‘marginally related to’ and

3 ‘arguably within’ the scope of the statute.” E. Bay Sanctuary Covenant v. Trump, 950

4 F.3d 1242, 1270 (9th Cir. 2020) (quoting Match-E-Be-Nash-She-Wish Band, 520 U.S. at

5 175–76). The court, therefore, DENIES defendants’ motion with respect to zone of

6 interests.

7

4. First and Second Claims—Contrary to Law and Arbitrary and

8

Capricious

9

Turning to defendants’ motion with regard to the individual claims, the court

10 addresses plaintiffs’ first and second claims together as they present a related issue. In

11 its preliminary injunction order, the court determined that plaintiffs were likely to succeed

12 on the merits of their claim that the Rule was not in accordance with the INA. Dkt. 131 at

13 48. After a lengthy review of the prior legislative, regulatory, and judicial history of the

14 term “public charge,” the court determined that DHS’s interpretation of the term “public

15 charge” was not reasonable at Chevron step two. In its order staying the injunction, the

16 Ninth Circuit determined that, at Chevron step one, the term “public charge” is not a term

17 of art and not self-defining—thus, it was ambiguous. City & Cty. of San Francisco, 944

18 F.3d at 792. At step two, the court also reviewed the lengthy legislative history and case

19 law surrounding the term “public charge” and concluded that there has not been “one

20 fixed understanding of ‘public charge’ that has endured since 1882.” Id. at 796. Instead,

21 “[i]f anything has been consistent, it is the idea that a totality-of-the-circumstances test

22 governs public-charge determinations. But different factors have been weighted more or

23 less heavily at different times, reflecting changes in the way in which we provide

24 assistance to the needy.” Id. In resolving the step two analysis, the Ninth Circuit

25 determined that the Rule was a reasonable interpretation of the INA. Id. at 799.

26

Also in its prior order, this court determined that plaintiffs were likely to succeed on

27 the merits that the Rule is arbitrary and capricious because DHS failed to consider costs

28 and benefits, including costs to state governments and health effects on state

21

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1 populations. Dkt. 131 at 53. On appeal, the Ninth Circuit motions panel discussed both

2 the cost-benefit issue and the public health effect issue. With regard to the former, the

3 court observed that DHS “addressed at length the costs and benefits associated with the

4 Final Rule.” City & Cty. of San Francisco, 944 F.3d at 801. With respect to public health

5 effects, the Ninth Circuit noted that “DHS not only addressed these concerns directly, it

6 changed its Final Rule in response to the comments.” Id. The court determined that

7 DHS could change its policy as long as DHS acknowledged the change and explained

8 the reasons for it. Id. at 805. In sum, the court held that DHS demonstrated that it was

9 likely to succeed on the merits of the arbitrary and capricious claim.

10

As discussed more thoroughly in this court’s order in State of California, et al., v.

11 U.S. Department of Homeland Security, et al., No. 19-cv-04975-PJH, Dkt. 180, the

12 procedural posture of this case presents several issues. For example, applying the

13 motions panel’s opinion would require the court to determine the extent to which the

14 opinion is binding (or persuasive) as to each of plaintiffs’ claims that defendants now

15 seek to dismiss. Further, because the court has deferred ruling on defendants’ motion to

16 dismiss in the related case, it is therefore appropriate to follow a similar course of action

17 here as plaintiffs’ substantive claims largely overlap with the related case.

18

Accordingly, the court DEFERS RULING ON defendants’ motion to dismiss

19 plaintiffs’ first and second causes of action until the Ninth Circuit issues an opinion on the

20 preliminary injunction or otherwise disposes of the case.

21

5. Third, Fifth & Eighth Claims—McAleenan’s Appointment

22

Plaintiffs’ third claim alleges that the Rule is arbitrary and capricious because then

23 Acting Secretary of Homeland Security McAleenan was serving in that role in violation of

24 DHS’s organic statute and the APA. FAC ¶ 203. Similarly, plaintiffs’ fifth claim alleges

25 that McAleenan was not lawfully appointed under the FVRA and DHS’s organic statute.

26 Id. ¶¶ 211–13. Plaintiffs’ eighth claim alleges that McAleenan’s appointment violates the

27 Appointments Clause, the FVRA, and DHS’s organic statute and, therefore, seek relief

28 under the Declaratory Judgment Act. Id. ¶ 230.

22

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1

Defendants argue that McAleenan was lawfully appointed as Acting Secretary

2 because, after enactment of the FVRA, Congress permitted DHS to set its order of

3 succession. Mtn. at 17. On April 9, 2019, then Secretary Kirstjen Nielsen established a

4 new succession order that placed the Customs and Border Patrol (“CBP”) Commissioner

5 third in the line of succession. Id. at 18. McAleenan was CBP Commissioner at the time,

6 the positions above him were vacant, and, therefore, he was lawfully appointed. Id.

7 Plaintiffs respond that then Secretary Nielsen’s amended order of succession only

8 applied when the Secretary is “unavailable to act during a disaster or catastrophic

9 emergency.” Opp. at 18. Instead, plaintiffs contend that relevant DHS order required

10 that, following the resignation of the Secretary, Executive Order 13753 governed the

11 order of succession and provided an order of succession different than Nielsen’s order.

12 Id. Under Executive Order 13753, McAleenan was seventh, not third, in line and there

13 were two Senate-confirmed appointees in front of him. Id. Defendants reply that

14 Secretary Nielsen’s order expressly “designate[d] the order of succession for the

15 Secretary of Homeland Security[.]” Reply at 14. This order clearly defined the order of

16 succession and controls over any previous version of the order of succession. Id.

17

Resolving this issue requires examination of the FVRA, DHS’s organic statute, and

18 the orders issued pursuant to the organic statute. “Congress broadly designated the

19 [FVRA] to be the ‘exclusive means for temporarily authorizing an acting official to perform

20 the functions and duties of any’ Executive office that would otherwise require Senate

21 confirmation.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d

22 1, 11 (D.C. Cir. 2019) (per curiam) (quoting 5 U.S.C. § 3347(a)). “But there is an

23 ‘unless’—Congress crafted exceptions to that exclusivity.” Id. DHS’s organic statute has

24 two such exceptions that apply notwithstanding the FVRA. First, 6 U.S.C. § 113(g)(1)

25 requires the Under Secretary for Management to serve as Acting Secretary if the

26 Secretary or Deputy Secretary is unavailable to perform the duties of Secretary. Second,

27 § 113(g)(2) permits the Secretary to “designate such other officers of the Department in

28 further order of succession to serve as Acting Secretary.”

23

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1

In December 2016, then Secretary of Homeland Security Jeh Johnson issued an

2 order of succession, entitled DHS Delegation No. 00106, that stated in relevant part:

3

II. Succession Order/Delegation

4

A. In case of the Secretary’s death, resignation, or

inability to perform the functions of the Office, the orderly

5

succession of officials is governed by Executive Order 13753,

amended on December 9, 2016. 6

B. I hereby delegate to the officials occupying the

7

identified positions in the order listed (Annex A), my authority

to exercise the powers and perform the functions and duties of

8

my office, to the extent not otherwise prohibited by law, in the

event I am unavailable to act during a disaster or catastrophic

9

emergency.

10 Dkt. 167-1, at 2.5 On April 9, 2019, Secretary Nielsen signed an order that approved an

11 amendment to Delegation No. 00106. That amendment invoked 6 U.S.C. § 113(g)(2)

12 and stated: “I hereby designate the order of succession for the Secretary of Homeland

13 Security as follows: Annex A of DHS Orders of Succession and Delegations of Authorities

14 for Named Positions, Delegation No. 00106, is hereby amended by striking the text of

15 such Annex in its entirety and inserting the following in lieu thereof: . . . .” Dkt. 166-3, at

16 3. The amendment then listed the order of succession with the CBP Commissioner third

17 in line. Id.

18

Thus far, the parties are in general agreement about the relevant authorities and

19 documents. Where they depart is the effect of the April 9th order. Defendants argue that

20 the amendment designated the order of succession in all cases, regardless of whether it

21 involved section II, subparagraph A of Delegation No. 00106 (i.e., in case of the

22 Secretary’s death, resignation, or inability to perform the functions of the Office), or

23 subparagraph B (i.e., when the Secretary is unavailable to act during a disaster or

24

25 5 Plaintiffs attach a copy of Delegation No. 00106, dated as of April 10, 2019, to their

26

opposition. Additionally, defendants attach a copy of Secretary Nielsen’s order amending Delegation No. 00106 to their motion. Dkt. 166-3. While neither document was attached

27

to the pleading, the court can consider documents “whose contents are alleged in a complaint and whose authenticity no party questions . . . .” Knievel, 393 F.3d at 1076.

28

The FAC references both documents and neither party challenges the authenticity of the documents in question. FAC ¶¶ 149–50.

24

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1 catastrophic emergency). In support of their argument, defendants quote the text of the

2 April 9th order: “I hereby designate the order of succession for the Secretary of

3 Homeland Security as follows . . . .” Mtn. at 18; Reply at 14 (“Secretary Nielsen’s order,

4 in no uncertain terms, expressly ‘designate[d] the order of succession for the Secretary of

5 Homeland Security[.]’”). This is an instance where the omitted material, signified by the

6 ellipses in defendants’ motion and the bracket in their reply, is critical to understanding

7 what exactly Secretary Nielsen ordered. The order states, “I hereby designate the order

8 of succession for the Secretary of Homeland Security as follows:” Dkt. 166-3 at 3

9 (emphasis added). Here is what followed: “Annex A of DHS Orders of Succession and

10 Delegations of Authorities for Named Positions, Delegation No. 00106, is hereby

11 amended by striking the text of such Annex in its entirety and inserting the following in

12 lieu thereof: Annex A. Order for Delegation of Authority by the Secretary of the

13 Department of Homeland Security.” Id. The order of succession is then laid out in the

14 amended Annex A. In other words, the April 9th order only replaced Annex A and made

15 no other changes to Delegation No. 00106. Thus, when Secretary Nielsen resigned “the

16 orderly succession of officials [was] governed by Executive Order 13753, amended on

17 December 9, 2016,” but not the amended Annex A, which only applied when the

18 Secretary was unavailable due to disaster or catastrophic emergency. Dkt. 167-1.

19

Had Secretary Nielsen intended to modify the order of succession applicable in

20 case of the Secretary’s death, resignation, or inability to perform the functions of the

21 Office, then her order could have so stated. In fact, plaintiffs cite a later amendment of

22 Delegation No. 00106 by Acting Secretary McAleenan, which stated “Section II.A of DHS

23 Delegation No. 00106, DHS Orders of Succession and Delegations of Authorities for

24 Named Positions, is amended hereby to state as follows: ‘In case of the Secretary’s

25 death, resignation, or inability to perform the functions of the Office, the order of

26 succession of officials is governed by Annex A.’” Dkt. 167-2 at 2 (emphasis added). The

27 fact that McAleenan amended Delegation No. 00106 to modify section II.A to cross-

28 reference Annex A but Nielsen did not, reinforces the conclusion that at the time of

25

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1 Nielsen’s resignation, Executive Order 13753 governed the order of succession.

2

In turn, Executive Order 13753, amended December 9, 2016, provided:

3

Subject to the provisions of subsection (b) of this section, the

officers named in subsection (a) of this section, in the order

4

listed, shall act as, and perform the functions and duties of the

office of, the Secretary of Homeland Security (Secretary), if

5

they are eligible to act as Secretary under the provisions of the

Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq.

6

(Vacancies Act), during any period in which the Secretary has

died, resigned, or otherwise become unable to perform the

7

functions and duties of the office of Secretary.

8 81 Fed. Reg. 90,667, 90,667. The Executive Order then lists the order of succession and

9 the CBP Commissioner is seventh in line. Id. Plaintiffs allege that, at the time of

10 McAleenan’s elevation to Acting Secretary, the roles of both the Under Secretary for

11 National Protection and Programs and the Under Secretary for Intelligence and Analysis

12 were filled by Senate-confirmed appointees such that McAleenan’s appointment was

13 invalid and any action by him was ultra vires. FAC ¶¶ 152–53.

14

This is not the end of the inquiry, however. As quoted above, subsection (a) is

15 “[s]ubject to the provisions of subsection (b).” 81 Fed. Reg. at 90,667. Subsection (b)

16 provides: “Notwithstanding the provisions of this section, the President retains discretion,

17 to the extent permitted by the Vacancies Act, to depart from this order in designating an

18 acting Secretary.” Id. at 90,668. Thus, as long as McAleenan’s appointment was

19 permitted by the FVRA, the President had the discretion to appoint him as Acting

20 Secretary. Plaintiffs do not allege that McAleenan failed to meet one of the three options

21 provided by the FVRA for the temporary appointment of officers. See Guedes, 920 F.3d

22 at 11 (discussing the three options). Accordingly, the President had discretion to appoint

23 McAleenan as Acting Secretary regardless of the order of succession outlined in

24 subsection (a) of Executive Order 13753.

25

For the foregoing reasons, defendants’ motion to dismiss plaintiffs’ third, fifth, and

26 eighth (pertaining to McAleenan) causes of action is GRANTED.

27

6. Fourth, Sixth & Eighth Claims—Cuccinelli’s Appointment

28

Plaintiffs’ fourth claim alleges that the Rule is arbitrary and capricious because

26

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1 then Acting Director of USCIS Cuccinelli was serving in that role in violation of the FVRA

2 and the APA. FAC ¶ 206. Their sixth claim alleges that Cuccinelli was not eligible to be

3 appointed as Acting Director of USCIS under the FVRA and, therefore, his actions have

4 no force or effect. Id. ¶¶ 216–18. Plaintiffs’ eighth claim alleges that Cuccinelli’s

5 appointment violates the Appointments Clause, the FVRA, and DHS’s organic statute

6 and, therefore, seek relief under the Declaratory Judgment Act.

7

Defendants argue that both claims against Cuccinelli should be dismissed

8 because the Rule was promulgated under the authority and signature of Acting Secretary

9 McAleenan and not Cuccinelli. Mtn. at 18. Plaintiffs respond that they allege that

10 Cuccinelli’s pre-promulgation involvement likely entailed taking FVRA-defined action.

11 Opp. at 19. They also argue that because Cuccinelli’s appointment violated FVRA, his

12 substantial involvement in the promulgation of the Rule renders it not in accordance with

13 law. Id. at 20.

14

Plaintiffs advance two separate theories regarding Cuccinelli’s appointment. Both

15 theories advance from the same predicate, Cuccinelli’s appointment violated section

16 3345 of the FVRA. The first theory is that because of the predicate FVRA violation, the

17 Rule was arbitrary and capricious under the APA. The second theory is that because of

18 the predicate violation, the Rule is rendered void by a separate FVRA provision.

19

Under the APA, “an agency action” that is “not in accordance with law” must be

20 held “unlawful and set aside.” 5 U.S.C. § 706(2). “The FVRA renders any action taken in

21 violation of the statute void ab initio: section 3348(d) declares that ‘[a]n action taken by

22 any person who is not acting [in compliance with the FVRA] shall have no force or effect’

23 and ‘may not be ratified.’” SW Gen., Inc. v. N.L.R.B., 796 F.3d 67, 78 (D.C. Cir. 2015)

24 (alterations in original) (quoting 5 U.S.C. § 3348(d)(1)–(2)). Assuming for the sake of

25 argument that plaintiffs are correct regarding their predicate FVRA violation,—i.e.,

26 Cuccinelli’s appointment violated FVRA—it does not follow that he took an action that can

27 be remedied under either the APA or the FVRA.

28

Title 8 U.S.C. § 1103(a) prescribes the powers and duties of the Secretary of

27

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1 Homeland Security including charging him or her “with the administration and

2 enforcement” of immigration laws and establishing regulation as he or she deems

3 necessary for carrying out his or her authority under the provisions of the INA. 8 U.S.C.

4 § 1103(a)(1), (3). Pursuant to that authority, DHS issued both the NPRM and the Rule.

5 83 Fed. Reg. at 51,116; 84 Fed. Reg. at 41,295 (“DHS’s authority for making public

6 charge inadmissibility determinations and related decisions is found in several statutory

7 provisions.”). The Rule was issued pursuant to then Acting Secretary McAleenan’s

8 authority, 84 Fed. Reg. at 41,295–96, and under his signature, id. at 41,508. The NPRM

9 was issued pursuant to then Secretary Nielsen’s authority, 83 Fed. Reg. at 51,124, and

10 signature, id. at 51,296. Plaintiffs challenge the promulgation of that Rule, which was not

11 issued pursuant to Cuccinelli’s authority (or even under USCIS’s authority). For that

12 reason, this case is unlike the only district court that determined Cuccinelli to be

13 unlawfully appointed and, as a remedy, set aside asylum directives there were issued by

14 Cuccinelli. L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 11, 37 (D.D.C. 2020). Even if

15 plaintiffs were able to demonstrate that Cuccinelli was unlawfully appointed, they cannot

16 state a claim for violation under the FVRA or the APA with regard to promulgation of the

17 Rule.

18

For the foregoing reasons, defendants’ motion to dismiss plaintiffs’ fourth, sixth,

19 and eighth (pertaining to Cuccinelli) causes of action is GRANTED. Because the Rule

20 was promulgated under the acting DHS Secretary’s authority, no additional factual

21 allegations could state a claim and further amendment of these claims would be futile.

22

7. Seventh Claim—Equal Protection

23

Defendants move to dismiss plaintiffs’ seventh claim for violation of the Equal

24 Protection component of the Fifth Amendment. The Equal Protection Clause of the

25 Fourteenth Amendment commands that no state shall “deny to any person within its

26 jurisdiction the equal protection of the laws,” U.S. Const. amend. XIV, § 1, which amounts

27 to a direction that all persons who are similarly situated should be treated alike. City of

28 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The equal protection

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1 component of the Fifth Amendment’s Due Process Clause imposes a similar obligation

2 on the federal government. See Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954); see

3 also I.N.S. v. Pangilinan, 486 U.S. 875, 886 (1988) (considering “the possibility of a

4 violation of the equal protection component of the Fifth Amendment’s Due Process

5 Clause”).

6

Defendants argue that plaintiffs’ Equal Protection claims should be dismissed

7 because the Rule is facially neutral, and plaintiffs cannot establish discriminatory intent.

8 Mtn. at 19. Defendants contend that the court should apply a narrow standard of review,

9 as required by Trump v. Hawaii, 138 S. Ct. 2418 (2018), because this case implicates the

10 Executive Branch’s authority over the admission and exclusion of foreign nationals. Mtn.

11 at 20. According to defendants, the FAC contains no allegations suggesting that the Rule

12 is not at least plausibly related to DHS’s stated objectives. Id. Defendants also contend

13 that the public statements by government officials upon which plaintiffs rely were not

14 made by DHS officials and have no express connection to the Rule. Id. at 21.

15

Plaintiffs respond that they have alleged sufficient facts to plausibly demonstrate

16 defendants acted with a discriminatory purpose. Opp. at 21. These allegations include:

17 the Rule will bear more heavily on non-white immigrants, which DHS acknowledged in

18 the Rule, (id.); statements by administration officials indicate that the Administration was

19 motivated in part by racial animus (id. at 22–23); and the sequence of events leading to

20 the promulgation of the Rule indicate a substantive departure from the normal decision-

21 making process, (id. at 23). Plaintiffs next argue that Trump v. Hawaii is not applicable

22 where, as here, DHS’s regulated activity applies to people already residing in the United

23 States and national security concerns are not present. Id. at 23–24.

24

In its order on defendants’ motion to dismiss in California, et al. v. Department of

25 Homeland Security, et al., No. 19-cv-4975-PJH, Dkt. 180, the court discussed at length

26 the Supreme Court’s jurisprudence regarding initial entry cases and whether plaintiffs in

27 that case could state a claim for an Equal Protection violation. Rather than recapitulate

28 that discussion in its entirety, the court summarizes a few main points. To begin, the

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1 Court has long recognized that Congress’s power concerning the initial entry of aliens

2 into the country is plenary. See Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“This Court has

3 repeatedly emphasized that ‘over no conceivable subject is the legislative power of

4 Congress more complete than it is over’ the admission of aliens.” (quoting Oceanic

5 Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). However, once an alien arrives

6 in the United States and begins establishing ties to the country, the Court has recognized

7 certain constitutional protections extend to those persons, even if their presence is

8 “unlawful, involuntary, or transitory.” Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“There

9 are literally millions of aliens within the jurisdiction of the United States. The Fifth

10 Amendment, as well as the Fourteenth Amendment, protects every one of these persons

11 from deprivation of life, liberty, or property without due process of law.” (citations

12 omitted)). It is therefore necessary to distinguish whether a government action involves

13 an initial entry into the United States or whether an alien has begun to establish ties with

14 the United States such that his or her constitutional status changes accordingly. See

15 Landon v. Plasencia, 459 U.S. 21, 32 (1982).

16

Trump v. Hawaii is best viewed as an initial entry case where Congress’s power is

17 at its height. In that case, the Supreme Court examined an Equal Protection challenge to

18 an executive order issued by the President that restricted entry into the United States by

19 foreign nationals of select countries, nearly all majority-Muslim countries. Hawaii, 138 S.

20 Ct. at 2403–04. The Court considered but ultimately did not apply the highly deferential

21 standard of review articulated in Kleindienst v. Mandel, 408 U.S. 753, 756–57 (1972),

22 noting that stating “Mandel’s narrow standard of review ‘has particular force’ in admission

23 and immigration cases that overlap with ‘the area of national security.’” Hawaii, 138 S.

24 Ct. at 2419 (quoting Kerry v. Din, 576 U.S. 86, 104 (2015) (Kennedy, J., concurring)).

25 Instead, the Court applied rational basis review and upheld the proclamation on those

26 grounds. Id. at 2420–21.

27

Similar to Hawaii, the Rule applies to immigrants and nonimmigrants seeking initial

28 admission to the United States. 84 Fed. Reg. at 41,295. Unlike Hawaii, it also applies to

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1 aliens who are already physically present in the United States and seeking adjustment of

2 status. Id. Because the Rules applies in part to aliens who are already in the United

3 States, defendants cannot entirely rely on cases based on Congress’s plenary power

4 over initial entry cases to uphold the Rule. Moreover, aliens who are physically present

5 in the United States can state a claim for violation of the Equal Protection component of

6 the Fifth Amendment. See Kwai Fun Wong v. United States, 373 F.3d 952, 970–73 (9th

7 Cir. 2004); see also Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Indeed, we have clearly

8 held that the Fifth Amendment protects aliens whose presence in this country is unlawful

9 from invidious discrimination by the Federal Government.” (citing Mathews, 426 U.S. at

10 77)).

11

In Department of Homeland Security v. Regents of the University of California,

12 writing for a plurality with regard to an Equal Protection challenge to the Administration’s

13 revocation of the Deferred Action for Childhood Arrivals (“DACA”) program, Chief Justice

14 Roberts stated that “[t]o plead animus, a plaintiff must raise a plausible inference that an

15 ‘invidious discriminatory purpose was a motivating factor’ in the relevant decision.

16 Possible evidence includes disparate impact on a particular group, ‘[d]epartures from the

17 normal procedural sequence,’ and ‘contemporary statements by members of the

18 decisionmaking body.’” 140 S. Ct. at 1915 (second alteration in original) (quoting

19 Arlington Heights, 429 U.S. at 266–68). At no point did the plurality cite or apply Hawaii’s

20 deferential standard of review. This indicates that application of the Arlington Heights

21 framework is appropriate to evaluate whether plaintiffs plead discriminatory animus.

22 Because this court has likewise determined that Trump v. Hawaii (and the plenary power

23 doctrine more generally) does not apply to the Rule in its entirety, similar to Regents, it is

24 appropriate to apply Arlington Heights to plaintiffs’ claim.

25

Defendants cite a Board of Immigration Appeals (“BIA”) opinion for the proposition

26 that “[i]t is a well established fact that an applicant for adjustment of status under Section

27 245 of the Act is in the same posture as though he were an applicant before an American

28 consular officer abroad seeking issuance of an immigrant visa for the purpose of gaining

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1 admission to the United States as a lawfully permanent resident.” Reply at 17 (quoting

2 Matter of Harutunian, 14 I.&N. Dec. 583, 589 (B.I.A. Feb. 28, 1974)). The BIA’s opinion

3 could be construed as stating that Congress’s plenary power applies even if an individual

4 is inside the United States because an adjustment of status is formally the same as an

5 overseas application for admission.

6

A few points are worth considering with regard to Matter of Harutunian. First, the

7 BIA did not cite a case for its proposition, which makes evaluating its statement of the law

8 difficult. Second, the statement appears to conflict with the proposition that “[a]liens,

9 even aliens whose presence in this country is unlawful, have long been recognized as

10 ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”

11 Plyler, 457 U.S. at 210 (citations omitted). Even assuming the BIA’s statement is true,

12 the court is persuaded by the Court’s plurality opinion in Regents which did not apply

13 Hawaii to the DACA program, a program applicable to persons who were physically

14 present in the United States but otherwise had no lawful status under the immigration

15 laws. See Regents, 140 S. Ct. at 1901.

16

“Under Arlington Heights, a plaintiff must ‘simply produce direct or circumstantial

17 evidence demonstrating that a discriminatory reason more likely that [sic] not motivated

18 the defendant and that the defendant’s actions adversely affected the plaintiff in some

19 way.’” Ave. 6E Invs., LLC v. City of Yuma, Ariz., 818 F.3d 493, 504 (9th Cir. 2016)

20 (internal quotation marks omitted) (quoting Pac. Shores Props., LLC v. City of Newport

21 Beach, 730 F.3d 1142, 1158 (9th Cir. 2013)); see also Regents, 140 S. Ct. at 1915. “A

22 plaintiff does not have to prove that the discriminatory purpose was the sole purpose of

23 the challenged action, but only that it was a ‘motivating factor.’” Ave. 6E Invs., (quoting

24 Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015)). While Arlington Heights describes

25 an evidentiary framework rather than a pleading standard, the Ninth Circuit has used its

26 factors in evaluating a district court’s dismissal of a complaint pursuant to Rule 12(b)(6).6

27

28

6 While not directly applicable to Equal Protection claims, the Supreme Court and the Ninth Circuit have held that, for employment discrimination cases, the McDonnell

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1 See id.

2

In Arlington Heights, the Court described a series of non-exhaustive factors that

3 guides the inquiry into whether a defendant’s actions were motivated by a discriminatory

4 purpose “by examining (1) statistics demonstrating a ‘clear pattern unexplainable on

5 grounds other than’ discriminatory ones, (2) ‘[t]he historical background of the decision,’

6 (3) ‘[t]he specific sequence of events leading up to the challenged decision,’ (4) the

7 defendant’s departures from its normal procedures or substantive conclusions, and (5)

8 relevant ‘legislative or administrative history.’” Pac. Shores Props., 730 F.3d at 1158–59

9 (alterations in original) (quoting Arlington Heights, 429 U.S. at 266–68; and citing Comm.

10 Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 2009));

11 see also Avenue 6E Invs., 818 F.3d at 504 (applying Arlington Heights factors to an

12 Equal Protection claim dismissed pursuant to Rule 12(b)(6)).

13

i. Disparate Impact

14

Here, plaintiffs allege that the Rule’s “negatively weighted factors

15 disproportionately and detrimentally affect communities of color.” FAC ¶ 120. The

16 complaint also cites the Rule, where DHS stated that it “recognizes that it is possible that

17 the inclusion of benefits such as SNAP and Medicaid may impact in greater numbers

18 communities of color, including Latinos and [Asian-American, Pacific Islanders], as well

19 as those with particular medical conditions that require public benefits for treatment, and

20 therefore may impact the overall composition of immigration with respect to these

21 groups.” 84 Fed. Reg. at 41,369. Plaintiffs have plausibly alleged that the Rule will

22 impact certain racial groups more heavily than others.

23

24 Douglas evidentiary framework is a useful touchstone to evaluate whether a claim

25

survives a motion to dismiss; however, a plaintiff “is not required to plead a prima facie case of discrimination in order to survive a motion to dismiss.” Sheppard v. David Evans

26

& Assoc., 694 F.3d 1045, 1050 (9th Cir. 2012) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508–11 (2002)). Similar to McDonnell Douglas, the Arlington Heights

27

framework is an evidentiary burden-shifting regime. A Rule 12(b)(6) motion only requires plaintiffs to meet the requirements of Rule 8 and Twombly/Iqbal. See Kwai Fun Wong,

28

373 F.3d at 968 (applying Swierkiewicz to Equal Protection claim that immigration officials discriminated against the plaintiff on the basis of her race).

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1

However, the court notes that the plurality opinion in Regents found that the

2 disparate impact of the DACA rescission on Latinos was not sufficient to state a claim.

3 Writing for himself and three other justices, Chief Justice Roberts stated “because

4 Latinos make up a large share of the unauthorized alien population, one would expect

5 them to make up an outsized share of recipients of any cross-cutting immigration relief

6 program. . . . Were this fact sufficient to state a claim, virtually any generally applicable

7 immigration policy could be challenged on equal protection grounds.” Regents, 140 S.

8 Ct. at 1915. This reasoning is persuasive and the Rule’s disparate impact, while notable,

9 is not dispositive.

10

ii. Statements by Decisionmakers

11

Next, plaintiffs cite evidence of potential bias exemplified by actions and

12 statements of the President and his advisors. With regard to the administration generally,

13 plaintiffs cite numerous immigration-related executive actions that they characterize as

14 either exclusively or disproportionately harming immigrants from non-white majority

15 nations. These actions include separating young children from their parents at the

16 southern U.S. border, ending DACA and temporary protected status for El Salvador,

17 Honduras, Haiti, Nepal, Sudan, and Nicaragua, and excluding nationals from majority-

18 Muslim countries. FAC ¶ 124. With respect to the President, plaintiffs allege that, as a

19 candidate, the President ran a campaign replete with racist aspersions about people of

20 Mexican descent and Muslim faith. Id. ¶ 125. After his inauguration, the President stated

21 that Haitians “all have AIDS,” that America should not be a haven for “people from

22 shithole countries,” and that he preferred immigrants coming from places like Norway. Id.

23 They also allege that on July 14, 2019, the President claimed that four congresswomen

24 of color “originally came from countries whose government are a complete and total

25 catastrophe, the worst, most corrupt and inept anywhere in the world . . .” and asked

26 “Why don’t they go back and help fix the totally broken and crime infested places from

27 which they came . . . .” Id. ¶ 129 (second alteration in original).

28

With respect to administration officials, plaintiffs allege that other senior

34

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1 administration officials made statements indicative of racial bias. They cite statements at

2 a press conference by then Acting Director of USCIS Cuccinelli who said that “President

3 Trump has once again delivered on his promise” regarding immigration. Id. ¶ 133. When

4 asked about how the Rule would target Latinos, Cuccinelli stated “if we had been having

5 this conversation 100 years ago, it would’ve applied to more Italians.” Id. Cuccinelli also

6 “rewrote” the words to Emma Lazarus’s sonnet on the Statue of Liberty “Give me your

7 tired and your poor” by adding “who can stand on their own two feet and who will not

8 become a public charge.” Id. ¶ 134. Cuccinelli explained that the poem was referring

9 back to people coming from Europe where they had class-based societies. Id. Plaintiffs

10 also cite a statement by the prior acting director of Immigration and Customs

11 Enforcement Mark Morgan who said of unaccompanied children in detention centers,

12 “I’ve looked at them and I’ve looked at their eyes . . . and I’ve said that is a soon-to-be

13 MS-13 gang member. It’s unequivocal.” Id. ¶ 137 (alteration in original).

14

In Regents, 140 S. Ct. at 1916, Chief Justice Roberts’ plurality opinion found the

15 President’s statements to be “unilluminating” and instead noted that “relevant actors were

16 most directly [the] Acting Secretary [of Homeland Security] and the Attorney General.”

17 The opinion stated that “respondents did not ‘identif[y] statements by [either] that would

18 give rise to an inference of discriminatory motive.’” Id. (alterations in original) (citation

19 omitted). Next, Chief Justice Roberts found the President’s statements were “remote in

20 time and made in unrelated contexts” and did not “qualify as ‘contemporary statements’

21 probative of the decision at issue.” Id. (quoting Arlington Heights, 429 U.S. at 268).

22 While a plurality opinion, this reasoning suggests that the President’s statements, which

23 have no direct connection to the Rule are not relevant to the Equal Protection analysis.

24

Applying here, plaintiffs allege both pre- and post-inauguration statements by the

25 President. The pre-inauguration statements, FAC ¶ 125, are similar to those in Regents

26 that are more remote in time and not applicable to the agency action at issue. The post-

27 inaugurations statements pertain to the same time period as the beginning of the

28 rulemaking process but are not connected to the Rule. With regard to statements by

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1 other administration officials, plaintiffs cite statements by Cuccinelli that were made at a

2 press conference discussing the Rule. As discussed above, Cuccinelli was appointed

3 two months before DHS promulgated the Rule and plaintiffs have not alleged Cuccinelli

4 was involved in the rulemaking process. Even assuming his statements plausibly

5 demonstrate discriminatory intent, plaintiffs have not alleged he was a relevant actor in

6 the rulemaking process. This reasoning also applies to the statement by acting director

7 Morgan, who has no apparent connection to the Rule. Finally, plaintiffs’ citation of

8 various executive actions is similar to their disparate impact argument. It may be true

9 that this administration’s action falls more heavily on immigrants and non-immigrants

10 from non-White, non-European countries, but disparate impact by itself is insufficient to

11 state a claim for an Equal Protection violation.

12

In sum, plaintiffs have identified a few statements made in unrelated contexts by

13 the President and comments from a DHS official who is not alleged to have any

14 connection to the rulemaking process, other than defending it after it was promulgated.

15 They have not alleged sufficient factual matter concerning statements by decisionmakers.

16

iii. Departure from Normal Procedures

17

Plaintiffs also contend that the Rule departed from normal procedures as

18 evidenced by the efforts of White House advisor Stephen Miller’s comments to fast-track

19 the Rule to completion. Id. ¶ 131 (“[T]he timing on public charge is unacceptable . . . I

20 don’t care what you need to do to finish it on time.”); see also id. ¶ 132. Plaintiffs’

21 allegations barely raise an inference of an improper departure from the norm. Cf.

22 Regents, 908 F.3d at 519 (“DACA received reaffirmation by the agency as recently as

23 three months before the rescission, only to be hurriedly cast aside on what seems to

24 have been a contrived excuse (its purported illegality). This strange about-face, done at

25 lightning speed, suggests that the normal care and consideration within the agency was

26 bypassed.”). Plaintiffs’ allegations that the Rule was fast tracked do not raise an

27 inference of discriminatory intent. This rulemaking process was not a 3-month about-

28 face; the NPRM began a year before the final Rule was published, received hundreds of

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1 thousands of comments, which prompted some changes to the Rule. At most, they

2 plausibly allege that defendants wanted to implement the Rule sooner rather than later.

3

In light of the foregoing, plaintiffs have not alleged sufficient factual matter to state

4 a claim for an Equal Protection violation. The court GRANTS defendants’ motion to

5 dismiss plaintiffs’ fifth cause of action. Because plaintiffs could allege additional factual

6 matter, the dismissal is with leave to amend.7

7

8. Whether the President is a Proper Defendant

8

Defendants also argue that the court should dismiss the President as a defendant

9 because plaintiffs lack an express or implied equitable cause of action to sue the

10 President. Mtn. at 22. Plaintiffs respond that courts routinely issue relief enjoining the

11 official actions of a sitting President. Opp. at 24.

12

Generally, courts lack “jurisdiction of a bill to enjoin the President in the

13 performance of his official duties.” Franklin v. Massachusetts, 505 U.S. 788, 802–03

14 (1992) (plurality opinion) (quoting Mississippi v. Johnson, 71 U.S. (4 Wall. ) 475, 501

15 (1866)). In narrow circumstances, the Supreme Court has held that the President might

16 be subject to a judicial injunction. For example, United States v. Nixon, 418 U.S. 683

17 (1974), held that the President may be subject to a subpoena to provide information

18 relevant to an ongoing criminal prosecution. Plaintiffs have not cited a specific case that

19 would authorize the court to depart from the general rule against enjoining the President.

20

It does not follow, however, that the court should therefore dismiss the President

21 as a defendant. Franklin noted that “the President’s actions may still be reviewed for

22 constitutionality,” though not under the APA because the President is not an “agency” for

23 purposes of the APA. 505 U.S. at 800–01 (citing Youngstown Sheet & Tube Co. v.

24 Sawyer, 343 U.S. 579 (1952); and Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)).

25

26 7 Other district courts have found that plaintiffs in those cases have alleged sufficient

27

factual allegations to state a claim for violation of the Equal Protection component of the Fifth Amendment. See New York, 2020 WL 4347264, at *6; Cook Cty., Ill., 2020 WL

28

2542155, at *3–5. These other cases suggest that plaintiffs could allege additional facts such that amendment of their complaint is not futile.

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1 At this stage, the court declines to decide whether the President should be dismissed.

2 Defendants have not presented authority for the proposition that the President should

3 dismissed from this action, as opposed to enjoined from taking a specific action. At the

4 same time, plaintiffs have not cited any authority authorizing the court to enjoin the

5 President, assuming they are able to state a claim outside of the APA. See also id. at

6 828 (Scalia, J., concurring in part and concurring in the judgment) (“Review of the legality

7 of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers

8 who attempt to enforce the President’s directive . . . .” (citations omitted)). Because this

9 order dismisses all non-APA claims against defendants, the court need not opine further

10 on this issue.

11

CONCLUSION

12

For the foregoing reasons, the court DENIES defendants’ motion to dismiss with

13 respect to their standing, ripeness, and zone of interest challenges. Defendants’ motion

14 to dismiss plaintiffs’ third through sixth and eighth causes of action for violation of the

15 APA, FVRA, and Declaratory Judgment Act is GRANTED, and the claims are

16 DISMISSED WITHOUT LEAVE TO AMEND; and defendants’ motion to dismiss plaintiffs’

17 seventh cause of action for violation of the Fifth Amendment is GRANTED, and the claim

18 is DISMISSED WITH LEAVE TO AMEND. Further, the court DEFERS RULING ON

19 defendants’ motion to dismiss plaintiffs’ first and second causes of action.8 Plaintiffs will

20 be permitted to file an amended complaint after resolution of the deferred claims.

21

IT IS SO ORDERED.

22 Dated: August 7, 2020

23

/s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

24

United States District Judge

25

26

27

8 On April 1, 2020, the court granted in part and denied in part plaintiffs’ motion to compel discovery. Dkt. 157. The court also stayed discovery “until resolution of defendants’

28

forthcoming motion to dismiss.” Id. at 31. Because this order defers ruling on two of plaintiffs’ claims, the court’s prior stay order remains in effect.

38

 
 Case 4:19-cv-04980-PJH Document 161 Filed 05/20/20 Page 1 of 58

1 Nicholas Espíritu (SBN 237665) NATIONAL IMMIGRATION LAW CENTER
2 3450 Wilshire Boulevard, #108-62 Los Angeles, CA 90010
3 Telephone: (213) 639-3900 Fax: (213) 639-3911
4 espiritu@nilc.org

5 Antionette Dozier (SBN 244437) WESTERN CENTER ON LAW & POVERTY
6 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010
7 Tel: (213) 487-7211 Fax: (213) 487-0242
8 adozier@wclp.org

9 Martha Jane Perkins (SBN 104784) NATIONAL HEALTH LAW PROGRAM
10 200 N. Greensboro Street, Ste. D-13 Carrboro, NC 27510
11 Tel.: (919) 968-6308 Fax: (919) 968-8855
12 perkins@healthlaw.org

13

14 Attorneys for Plaintiffs 15 16

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

17 LA CLÍNICA DE LA RAZA; CALIFORNIA

PRIMARY CARE ASSOCIATION;

18 MATERNAL AND CHILD HEALTH

ACCESS; FARMWORKER JUSTICE;

19 COUNCIL ON AMERICAN ISLAMIC

RELATIONS-CALIFORNIA; AFRICAN

20 COMMUNITIES TOGETHER; LEGAL AID

SOCIETY OF SAN MATEO COUNTY;

21 CENTRAL AMERICAN RESOURCE

CENTER, and KOREAN RESOURCE

22 CENTER

Plaintiffs,

23

v.

Case No. 4:19-cv-4980
FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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Case No. 3:19-cv-4980 FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 4:19-cv-04980-PJH Document 161 Filed 05/20/20 Page 2 of 58

1 DONALD J. TRUMP, in his Official Capacity as President of the United States; UNITED STATES
2 DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CITIZENSHIP AND
3 IMMIGRATION SERVICES; KENNETH T. CUCCINELLI, in his Official Capacity as Senior
4 Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services; and CHAD
5 WOLF, in his Official Capacity as Acting Secretary of the Department of Homeland Security,
6 Defendants.
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Case No. 3:19-cv-4980

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 4:19-cv-04980-PJH Document 161 Filed 05/20/20 Page 3 of 58

1

INTRODUCTION

2

1. President Donald J. Trump is determined to prevent immigrants of color from

3 coming to and remaining in the United States. As part of this broad effort, the administration has

4 promulgated a “public charge” regulation, which erects hurdles to family-based immigration that

5 Congress has not authorized. This unlawful regulation harms and specifically targets immigrants

6 of color.

7

2. Defendants’ “public charge” regulation (“Regulation”) violates the Administrative

8 Procedure Act (“APA”) and the equal protection guarantee of the Fifth Amendment to the U.S.

9 Constitution. The Regulation is squarely at odds with the language of the statute, its century-long

10 interpretation, and Congress’ purpose in enacting the statute. It is arbitrary and capricious and

11 motivated by animus toward non-white immigrants. It also was promulgated and developed by

12 administration officials appointed in contravention of the Federal Vacancies Reform Act

13 (“FVRA”) and the statute and regulations prescribing the order of succession for appointing an

14 acting Secretary of Homeland Security. Those officials were therefore without authority to

15 promulgate and otherwise contribute to the Regulation.

16

3. The Immigration and Nationality Act (“INA”) bars certain individuals from

17 obtaining a green card or from obtaining certain visas if they are “likely at any time to become a

18 public charge.” Since Congress first introduced the term in the immigration context in 1882,

19 “public charge” has been understood to mean only a person who is primarily dependent on the

20 government to avoid destitution (i.e., someone who is effectively a “charge” or ward of the state).

21 From its first use in the immigration laws, “public charge” was included alongside other grounds

22 of inadmissibility that necessitate reliance on the government to avoid destitution, such as

23 “paupers,” “professional beggars,” and “insane persons.” Congress has never altered the long-

24 standing meaning of “public charge” as articulated by the courts and administrative agencies.

25 “Public charge” has never been understood to reach immigrants who, like a near-majority of

26 citizens born in the United States, may at some point in their lives receive supplemental health

27 care, nutrition, or housing assistance to improve their lives and those of their families.

28

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1

4. Acting unilaterally and without congressional approval, Defendants now deviate

2 from the established meaning of the term public charge, dramatically altering it to effect a sea-

3 change in immigration law. The Regulation treats as a public charge any immigrants found more

4 likely than not, at any time over their lifetime, to receive any amount of benefits from a wide range

5 of supplemental public benefits programs.

6

5. The targeted benefits include health care coverage (non-emergency Medicaid for

7 non-pregnant adults), housing assistance (Section 8 and public housing), and food assistance

8 (Supplemental Nutrition Assistance Program or “SNAP”). Indeed, nearly one in four U.S.-born

9 citizens (over 60 million individuals) participate in one or more of the programs listed in the

10 Regulation in any given year. Moreover, about one half of U.S.-born citizens can be expected to

11 use one of the programs listed in the Regulation at some point in their lifetime. Those who rely on

12 these programs include low- and moderate-income working families who depend primarily on

13 income from employment, but who receive supplemental benefits that improve their quality of life

14 and their communities. These non-cash programs, by design, help millions of citizens and

15 immigrants alike, enabling them to remain healthy and productive in communities where rents and

16 other costs of living are high. See 7 U.S.C. § 2011 (purpose of SNAP is “raising levels of

17 nutrition among low-income households” by spreading the “Nation’s agricultural abundance

18 and . . . economy”); 42 U.S.C. § 1437(f) (purpose of Section 8 vouchers is to help “low-income

19 families obtain[] a decent place to live” and to promote “economically mixed housing”).

20

6. In addition, the Regulation fundamentally distorts the totality-of-the-circumstances

21 test that the public charge statute prescribes. The Regulation sets forth a series of arbitrary factors

22 that are not reasonably related to whether a person is likely to become a public charge—including

23 English proficiency and credit scores. Most of the factors enumerated in the Regulation are

24 negatively weighted, significantly and arbitrarily tipping the scale in favor of finding an applicant

25 to be a public charge.

26

7. The Regulation also introduces a public charge determination against an entirely

27 new group—nonimmigrants seeking a change of status or an extension of their stay—making

28 those nonimmigrants who have received certain designated benefits generally ineligible for a

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1 change of status or extension, despite the agency’s acknowledgement that the public charge statute

2 does not apply to this group.

3

8. This Regulation fits squarely within a consistent pattern of racial discrimination in

4 this Administration’s immigration policies—including separating thousands of Central American

5 children from their mothers and fathers; refusing refuge to non-white immigrants seeking asylum;

6 attempting to end the Deferred Action for Childhood Arrivals program; terminating Temporary

7 Protected Status for nationals of several predominantly non-white countries; excluding individuals

8 from majority Muslim countries and expanding that ban to prevent substantial immigration from

9 multiple African nations; proposing a rule that would bar families from housing programs if any

10 family member is without eligible immigration status; and proposing a Regulation that would

11 apply the same overbroad definition of “public-charge” to deportability.

12

9. Defendants fail to provide adequate reasons for their dramatic changes to the public

13 charge policy, and they fail to explain how those changes are consistent with the statutory

14 language and the well-settled interpretation of that language. Defendants have acted in total

15 disregard of the Regulation’s effects on families, communities, and the nation. And the agency

16 has failed to respond adequately to the myriad concerns expressed in the over 260,000 comments

17 submitted.

18

10. Plaintiffs bring this lawsuit to enjoin the implementation of Defendants’ new public

19 charge Regulation in order to prevent irreparable harm to themselves and their communities.

20 Plaintiffs represent health care providers and other nonprofit organizations that seek to protect

21 access to health care, nutrition, housing, and other public benefits for immigrants, including

22 immigrants of color, regardless of their immigration status or financial means. The Regulation has

23 and will continue to divert Plaintiffs’ resources, both to address the harmful effects of the

24 Regulation and to educate immigrant families about those effects, preventing Plaintiffs from

25 carrying out other aspects of their missions and ensuring that their patients, members, and clients

26 do not forgo critical services to lead healthy, productive, and successful lives. Plaintiffs also

27 include legal service providers who assist clients that receive one or more of the public benefits

28 included in the Regulation, who meet several of the Regulation’s totality of the circumstance

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1 factors, and who will be subject to the Regulation when they seek to adjust to LPR status or

2 maintain or change their non-immigrant status. The Regulation also has and will continue to

3 affect Plaintiffs’ operations, such as by reducing patient and client caseloads as individuals cease

4 receiving benefits due to the Regulation or become ineligible for immigration relief. Plaintiffs

5 rely on caseloads for funding and goodwill, and their inability to serve their communities

6 frustrates their organizational missions.

7

11. The Regulation is impermissibly vague and complex, inviting arbitrary and

8 discriminatory enforcement by immigration officials. As a result, the regulation will cause

9 immigrant families, including those with U.S. citizen members, to disenroll from programs or to

10 forgo benefits for which they are eligible. Many of these immigrant families will not in fact be

11 subject to the public charge inquiry but will nonetheless disenroll due to fear or lack of

12 understanding of how the Regulation operates. The impacts of this chilling effect are far-reaching.

13 The Regulation not only will jeopardize the health of the affected immigrants, their children, and

14 other family members, but will also endanger public health by, among other things, increasing the

15 likelihood of untreated communicable disease, depriving essential community health providers of

16 Medicaid revenue, and creating food and housing instability. The Regulation will produce

17 negative health and economic outcomes nationwide over generations.

18

12. Indeed, the Regulation is already having a detrimental effect on public health since

19 it took effect on February 24, 2020. The novel coronavirus SARS-CoV-2 (“COVID-19”), which

20 has become a global pandemic, has afflicted over 1.5 million people in the United States, causing

21 a nationwide public health crisis. The President has declared a national emergency and all 50

22 states have made emergency declarations in order to take extraordinary measures to protect the

23 health and well-being of their residents. The Regulation, however, is deterring immigrants from

24 obtaining the health care—including testing and treatment—necessary to protect public health

25 along with the public benefits that will help them survive the economic crisis that COVID-19 has

26 caused.

27

13. Immigrants make up a substantial portion of essential workers on the frontlines of

28 the national, state, and local response to the crisis. These workers are more likely to be exposed to

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1 the virus and—without adequate testing and treatment—to suffer worse health outcomes if

2 infected. Infected workers wary of obtaining testing and treatment for symptoms of COVID-19

3 for fear that they will be penalized by the Regulation when adjusting status are also more likely to

4 inadvertently spread the virus to others. The Regulation thus threatens to worsen this

5 unprecedented public health and economic crisis.

6

14. Plaintiffs request that this Court hold unlawful and set aside the Regulation under

7 the Administrative Procedure Act, the Equal Protection guarantee of the Fifth Amendment to the

8 U.S. Constitution, the FVRA, and DHS’s organic statute, and that it enter an injunction barring

9 Defendants from implementing the Regulation.

10

PARTIES

11 I. Plaintiffs

12

15. Plaintiff LA CLÍNICA DE LA RAZA (“LA CLÍNICA”) is a Federally Qualified

13 Health Center whose mission is to improve the quality of life of the diverse communities it serves

14 by providing culturally appropriate, high-quality, and accessible health care for all. LA CLÍNICA

15 serves more than 86,000 patients annually in the San Francisco Bay Area and is one of the largest

16 community health centers in California, with a total of 35 clinical service and

17 support/administrative sites across three Bay Area counties.

18

16. LA CLÍNICA serves patients who may seek to extend or adjust their immigration

19 status, and whose immigration applications are likely to be subject to Defendants’ Regulation.

20 Many LA CLÍNICA patients receive Medicaid and other public benefits. A significant number of

21 LA CLÍNICA’s patients are low-income, have limited English proficiency, and/or have limited

22 skills and education. Many LA CLÍNICA patients also reside in large households. LA

23 CLÍNICA’s patients are predominantly people of color.

24

17. Defendants’ new Regulation will frustrate LA CLÍNICA’s ability to provide

25 accessible health care to the thousands of patients it treats each year. Because of the Regulation’s

26 chilling effect, many of LA CLÍNICA’s patients—and their families—are likely to avoid using

27 public benefits, including seeking health care services. Many of LA CLÍNICA’s patients will

28 either disenroll themselves and/or their family members from Medicaid based on the fear that

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1 using these benefits will hinder their ability to adjust status in the future. Other LA CLÍNICA

2 patients will cancel or refrain from scheduling medical appointments for fear that using health care

3 services could affect their ability to adjust status. This will harm immigrant patients and their

4 communities, whose health and well-being form a key part of LA CLÍNICA’s mission. It will

5 also severely harm LA CLÍNICA by significantly reducing LA CLÍNICA’s funding stream that is

6 linked to caseload while imposing substantial unbudgeted costs.

7

18. Plaintiff CALIFORNIA PRIMARY CARE ASSOCIATION (“CPCA”) brings this

8 action on behalf of its members, including member Asian Health Services, described below.

9 Formed in 1994, CPCA has become the statewide leader and a recognized voice in representing

10 the interests of California community health centers and their patients. CPCA represents Regional

11 Clinic Associations and 1,370 nonprofit community health centers (“CHCs”) that provide

12 comprehensive primary and preventive health services to low-income and uninsured patients in

13 California. CPCA’s membership consists of 157 CHC entities that work through more than 983

14 service delivery sites. CPCA’s members include community and free health centers, some

15 federally funded and federally designated health centers, rural and urban clinics, large and small

16 clinic corporations, and clinics dedicated to special needs and special populations.

17

19. CPCA’s members serve diverse populations and ensure that everyone has access to

18 health care regardless of their ability to pay, their immigration status, or their individual

19 circumstances. CPCA’s CHC members serve over 7.2 million California residents every year.

20 Approximately 70% of the CHCs’ patients are Latino, Asian Pacific Islander, or Black. CHCs

21 serve patients of various immigrant statuses, including immigrants who will be subject to the

22 public charge admission test when they seek to extend or change their nonimmigrant visas or

23 apply for lawful permanent residence.

24

20. Sixty-one percent of the patients served by CPCA’s members are enrolled in Medi-

25 Cal, the Medicaid program in California. This means that these CHCs serve more than 4 million

26 Medi-Cal enrollees, providing care to 1 in 3 Medi-Cal beneficiaries.

27

21. CPCA has brought this suit because its purpose is to promote the interests of its

28 members and its members will face significant financial harm as a result of the Regulation. CPCA

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1 expects CHCs’ patients will disenroll from public benefits, including Medi-Cal, because of the

2 changes to the public charge test. Specifically, CPCA predicts that as many as 101,000 to 305,000

3 of its members’ patients will disenroll from Medi-Cal as a result of the Regulation, causing the

4 CHCs to lose $56 to $170 million in Medi-Cal reimbursements. This will lead to an increase in

5 uninsured patients. CPCA anticipates that a number of these patients will continue seeking

6 services at CHCs, forcing the CHCs to incur increased costs serving uninsured patients while

7 experiencing a dramatic drop in revenue.

8

22. One of CPCA’s members, Asian Health Services (“AHS”), is a nonprofit

9 community health center headquartered in Oakland, California. AHS provides health services at

10 more than a dozen locations in Oakland and San Leandro, California and has 28,000 active

11 patients of all ages. AHS is a member in good standing of CPCA and has been a member since

12 1994, when CPCA was formed.

13

23. Founded in 1974, AHS’s mission is to serve and advocate for the medically

14 underserved, including the immigrant and refugee Asian community, and to ensure equal access to

15 health care for all, regardless of income, insurance status, immigration status, language, or culture.

16 As a federally qualified health center, AHS offers services to uninsured patients on a sliding fee

17 scale. Individuals with incomes below 100% of the federal poverty level receive most services at

18 no cost. Approximately 93% of AHS patients are Asian; 2% are Latino; and 2% are Black. In

19 addition, approximately 58% of AHS patients are not yet United States citizens. For 73% of

20 patients, English is not their primary language. Roughly two-thirds of AHS patients are enrolled

21 in Medi-Cal, which is the Medicaid program in California.

22

24. The Regulation will cause irreparable harm to many AHS patients and to AHS.

23 The Regulation will have a substantial chilling effect on AHS patients’ access to health care

24 and/or use of their health coverage. Some patients will stop receiving services altogether based on

25 fears about the effect on their or their children’s immigration status. Other AHS patients will

26 continue to receive services from AHS, but will decline to enroll in or will disenroll from Medi-

27 Cal due to the Regulation.

28

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1

25. As a result of the Regulation, AHS will incur significant financial loss. Medi-Cal

2 reimbursements account for 52% of AHS’s annual budget. AHS estimates that as its patients

3 disenroll from or decline to enroll in Medi-Cal, it will lose as much as $5.2 million in Medi-Cal

4 reimbursements every year. AHS will have no way to recoup the cost of the services provided to

5 those patients who disenroll but continue to receive services. In addition to losing Medi-Cal

6 funding, AHS will have to divert considerable resources to responding to the Regulation. For

7 example, AHS expects staff to spend time responding to individual patients’ questions and

8 concerns about enrolling in or remaining enrolled in Medi-Cal and/or CalFresh given the

9 Regulation. These efforts will leave staff members with less time to help patients enroll in health

10 coverage and SNAP, schedule appointments, and provide case management, referrals and care

11 coordination.

12

26. Plaintiff Maternal and Child Health Access (“MCHA”) works to ensure access to

13 quality and comprehensive health care for all, with a focus on perinatal care and child health.

14 MCHA works with low-income immigrant families who access services through California’s

15 SNAP program, California’s Medicaid program, and Section 8 housing. Since the 1990s,

16 MCHA’s purpose has been to support women and their families so they can be healthy and

17 financially independent. MCHA offers enrollment assistance programs to help people of all

18 genders and ages secure and navigate SNAP and health-care coverage, training and education for

19 organizations and individuals about eligibility for benefit programs for low-income and immigrant

20 families, plus home visits, weekly classes, and mental health supports to help families succeed.

21

27. The Regulation is frustrating MCHA’s mission by reducing access to nutrition,

22 medical care, and adequate housing. Immigrant families who MCHA serves are already

23 disenrolling from public benefit programs, such as SNAP and Medicaid, based on fears that using

24 those programs will affect their future immigration relief options. Women have refrained and will

25 continue to refrain from seeking health services, food, and other programs for themselves and their

26 children, based on fears that using those benefits will prevent them from adjusting status. As the

27 Regulation is implemented, MCHA expects even more women to refrain from seeking Medicaid

28 and other necessary health services, food, and other programs for themselves and their children,

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1 based on fears that using those benefits will prevent them from adjusting status. To support their

2 babies, pregnant women need, on average, an additional 300 calories per day. Yet MCHA already

3 sees women pulling themselves out of nutrition support programs based on fear of public charge

4 and anticipates even more SNAP disenrollments. Losing access to critical health and nutrition

5 services during pregnancy and early childhood could negatively affect MCHA’s clients for years.

6

28. Their clients’ disenrollment from health, housing, and nutrition programs will make

7 it difficult for MCHA to continue its operations. MCHA will be forced to shift its capacity and

8 divert its resources to respond to the Regulation instead of assisting clients with accessing public

9 benefits or other resources to which they are entitled. MCHA will need to identify alternative

10 forms of assistance for those who disenroll from benefit programs, develop and implement

11 additional measures so that mothers and families feel comfortable continuing to use MCHA’s

12 home-visitation program, and engage in substantial community education to try to combat the

13 Regulation’s chilling effect. In addition, MCHA will be forced to address client situations that

14 have worsened over time, such as prolonged malnutrition and delayed access to medical care.

15 These heightened client problems require additional staff time. To respond to the Regulation,

16 MCHA also needs to allocate staff members who can follow up with individuals who raise

17 concerns about the Regulation.

18

29. Plaintiff Farmworker Justice (“FJ”) is a national non-profit organization

19 representing farmworkers and their families across the country who perform agricultural work in

20 the United States. FJ’s mission is to empower migrant and seasonal farmworkers to improve their

21 living and working conditions, health, occupational safety, and access to justice. It also provides

22 policy analysis and advocacy, legal advocacy, training, and technical assistance to farmworkers,

23 attorneys, migrant health centers, and immigrant advocacy groups across the United States,

24 including in Texas, Arizona, Colorado, New Mexico, New Jersey, Georgia, Florida, New York,

25 Wisconsin, Missouri, Michigan, and California. FJ also hosts remote assistance, such as webinars

26 and conferences, reaching additional locations, such as Kansas, Iowa, Illinois, Puerto Rico, North

27 Carolina, South Carolina, Washington, Oregon, District of Columbia, Montana, Minnesota,

28 Nebraska, Oklahoma, Virgin Islands, Virginia, Maryland, Indiana, and Pennsylvania. FJ

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1 represents approximately 2.5 million farmworkers who work in the United States, as well as their

2 spouses and children who, combined, represent approximately 4.5 million individuals in the

3 United States. A large and growing number of farmworkers have H-2A non-immigrant visas,

4 which are for temporary agricultural workers.

5

30. The Regulation will disadvantage many farmworkers who seek to adjust to lawful

6 permanent resident (LPR) status or to obtain or extend their non-immigrant H-2A status. For

7 example, the Regulation penalizes individuals with low incomes, and farm laborers’ wages are

8 among the lowest in the nation. FJ also represents immigrant farmworker families who receive

9 Medicaid and SNAP, and who feel compelled by the Regulation to forgo those benefits in order to

10 remain eligible to adjust their status. Farmworkers are disenrolling eligible U.S. citizen children

11 from Medicaid due to fears that their children’s health care coverage will affect their ability to

12 seek immigration relief. They also fear that this may lead eventually to the forced separation of

13 their family and are not seeking health coverage or services at health centers for the same reasons.

14

31. The Regulation has forced FJ to divert substantial resources in order to develop and

15 disseminate information about the Regulation that addresses the farmworker communities’ needs.

16 Beginning in March 2020, FJ has been addressing concerns that farmworkers have about the

17 implications of the public charge Regulation when seeking to take action to prevent or treat

18 COVID-19. Spending considerable resources to address the Regulation has reduced the

19 organization’s ability to engage extensively in other issues that affect farmworker families and

20 advance FJ’s mission.

21

32. Plaintiff COUNCIL ON AMERICAN-ISLAMIC RELATIONS–CALIFORNIA

22 (“CAIR-CA”) is dedicated to enhancing the understanding of Islam, protecting civil rights,

23 promoting justice, and empowering American Muslims. CAIR-CA was established in 1994 and

24 has four offices throughout the state. CAIR-CA serves Arab, Middle Eastern, Muslim, and South

25 Asian (“AMEMSA”) communities. Among other activities, CAIR-CA provides direct

26 immigration assistance, including by helping AMEMSA communities with adjustment of status

27 applications.

28

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1

33. CAIR-CA has clients who are seeking or will seek to adjust their status in the

2 future. CAIR-CA also has clients who use public benefits, including Medicaid, public housing,

3 and SNAP. CAIR-CA’s clients have incomes at or below 250% of the Federal Poverty Level

4 (“FPL”). The Regulation is frustrating CAIR-CA’s mission to protect civil rights, promote justice,

5 and empower American Muslims. CAIR-CA will need to divert its resources in an attempt to

6 reduce the harm stemming from Defendants’ Regulation, forcing CAIR-CA staff members to

7 reduce their capacity in other areas that further CAIR-CA’s mission. Moreover, the Regulation is

8 causing many of the immigrant families that CAIR-CA serves to refrain from seeking

9 supplemental benefits or to disenroll from those programs, cutting off important services and

10 destabilizing their families and their communities. It also will decrease the number of

11 immigration cases CAIR-CA files, as clients will take longer to process due to the Regulation’s

12 complexity and may not qualify for relief or decide not to seek relief due to concerns over the

13 Regulation. This in turn will decrease CAIR-CA’s funding linked to case filings and may impact

14 its good will if it is not able to serve its community as effectively.

15

34. Plaintiff AFRICAN COMMUNITIES TOGETHER (“ACT”) is a national

16 membership organization of African immigrant members fighting for civil rights, opportunity, and

17 a better life for African immigrant families residing in the United States. ACT serves immigrant

18 families who are originally from Nigeria, Ghana, Liberia, Ethiopia, and other African nations. It is

19 a resource for African immigrants seeking legal assistance with immigration relief, including by

20 providing assistance with adjustment of status applications. ACT has approximately 3,000

21 members and serves clients from across the nation; in 2019 alone, it provided services to clients

22 from Alaska, Arizona, California, Colorado, Delaware, the District of Columbia, Florida, Georgia,

23 Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Minnesota,

24 Mississippi, Missouri, Nebraska, Nevada, New York, New Jersey, North Carolina, North Dakota,

25 Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, and Virginia. ACT maintains

26 offices in New York, Arlington, Virginia, and the District of Columbia, where it serves in-person

27 clients from New York, New Jersey, Connecticut, Pennsylvania, Maryland, Virginia and the

28 District of Columbia. It also organizes a national network of African immigrant-serving

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1 organizations, including national committees with members in 18 states (California, Illinois, Iowa,

2 Kansas, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New York, North

3 Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, Texas, and Virginia) and other

4 organizations with members and clients in 23 states (Arkansas, California, Connecticut, Delaware,

5 the District of Columbia, Georgia, Illinois, Maine, Maryland, Michigan, Minnesota, New Jersey,

6 New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee,

7 Texas, Virginia, and Washington). As a national organization, ACT is open to receiving inquiries

8 and providing assistance to residents and organizations in all states.

9

35. Defendants’ Regulation is frustrating ACT’s mission by directly restricting the

10 number of African immigrants who will be able to adjust to LPR status or maintain or change their

11 non-immigrant immigration status due to the public charge test, thus eliminating essential

12 pathways for this population to obtain LPR status. This is because ACT’s clients who will seek to

13 adjust status include individuals who are low-income and who possess other characteristics

14 considered to be negative factors under the Regulation. ACT also has clients who receive

15 Medicaid, SNAP, and other public benefits. Moreover, ACT will be forced to divert its resources

16 to combat the chilling effects and discriminatory message of the Regulation, forcing the

17 organization to spend less time on its other areas of work and to reduce the overall number of

18 cases the organization can take on. The Regulation is discouraging ACT’s clients from accessing

19 social services for fear that receipt of any public benefit will affect any future attempt to adjust,

20 maintain or change their immigration status, causing harm to individuals and families who are

21 eligible for those benefits.

22

36. Plaintiff LEGAL AID SOCIETY OF SAN MATEO COUNTY (“LEGAL AID”)

23 has been the primary legal service provider for low-income and vulnerable residents in San Mateo

24 County for over sixty years. LEGAL AID engages in community education, legal representation,

25 systemic advocacy, and collaboration with community partners to help vulnerable community

26 members secure safe, affordable housing, access health care, achieve economic security, and

27 obtain immigration benefits for which they are eligible. LEGAL AID has devoted significant

28 resources to educating San Mateo County’s immigrant residents about the various public programs

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1 for which they are eligible, including Medicaid and SNAP, as well as about the public charge

2 inadmissibility test.

3

37. Some of LEGAL AID’s clients will be subject to the Regulation when they seek to

4 adjust their status or extend or change their non-immigrant visas. Many of LEGAL AID’s clients

5 are likely to disenroll from, or fear enrolling in, these important programs. Some clients may be

6 deemed public charges under the Regulation because they either use or will become eligible for

7 public benefits, including Medicaid, SNAP, and housing benefits and have other characteristics

8 that will weigh against them, including low household incomes, limited-English proficiency, and

9 large household sizes. Access to these programs enables LEGAL AID clients to thrive.

10

38. The Regulation frustrates LEGAL AID’s mission to fight social injustice by

11 helping San Mateo County residents obtain services through legal advocacy, and to help low-

12 income individuals achieve self-sufficiency. When the Regulation deters applicants from

13 accessing LEGAL AID’s services, the resulting unmet grant goals mean LEGAL AID risks losing

14 funding. LEGAL AID also has had to divert its resources to help San Mateo County’s immigrant

15 residents and their families who are either directly subject to the Regulation or harmed because of

16 the Regulation’s chilling effect. These diversions have increased costs and limited LEGAL AID’s

17 capacity to take additional cases and address other important areas of operations.

18

39. Plaintiff CENTRAL AMERICAN RESOURCE CENTER of Los Angeles

19 (“CARECEN”) is a civil rights, social services and community empowerment organization.

20 Founded by Salvadoran refugees in 1983, it is now the largest Central American immigrant-rights

21 organization in the country. CARECEN’s mission is to empower Central Americans and all

22 immigrants by defending human and civil rights, working for social and economic justice, and

23 promoting cultural diversity, including by providing pro bono and low-cost immigration legal

24 services to low-income immigrants. Most of CARECEN’s legal work consists of legal counseling

25 and representation to low-income individuals seeking admission and LPR status. CARECEN also

26 engages in community outreach and education, including about the process for obtaining lawful

27 permanent residence.

28

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1

40. The Regulation will frustrate the core component of CARECEN’s mission to

2 provide legal representation to individuals seeking admission and adjustment to lawful permanent

3 residence. More than half of CARECEN’s clients receive, have received, or have household

4 members who receive or have received one or more forms of public assistance, including

5 Medicaid and SNAP. About half of CARECEN’s clients’ household incomes fall below the

6 federal poverty line, and nearly all of its clients’ household incomes fall below 250% of the FPL.

7 CARECEN’s legal staff will have to expend significant additional time interviewing clients about

8 their public-benefits history and assessing whether they are harmed by the Regulation, as well as

9 advising clients about the potential impact of the Regulation if they receive certain benefits in the

10 future. Since the implementation of the Regulation, CARECEN has experienced a significant

11 decrease in submission of adjustment of status applications. In addition to the high risk for

12 applicants, the administrative burden of document collection is also much more time-consuming

13 and, at times, inaccessible for some applicants. As fewer cases are filed due to the time it takes to

14 process existing cases and clients become ineligible (or believe that they are) for immigration

15 relief, CARECEN’s funding will also decrease because it is tied to the number of cases filed.

16 CARECEN will also expend considerable time educating the community about the Regulation as

17 well as training its own staff so they can properly counsel clients who may be adversely affected

18 by the Regulation. This will divert significant resources away from other aspects of CARECEN’s

19 mission.

20

41. Plaintiff KOREAN RESOURCE CENTER (“KRC”) is a 38-year-old non-profit

21 community and membership organization empowering low-income, immigrant, Asian American

22 and Pacific Islander, and people of color communities in Southern California. KRC’s mission is

23 to empower members and clients, using a holistic approach, by integrating services, education,

24 culture, organizing, and coalition building, all of which seek to help individuals thrive. KRC has

25 offices in Los Angeles and Orange County.

26

42. KRC engages in community education and organizing, systemic advocacy, legal

27 representation, and policy impact analysis. KRC’s legal representation in immigration matters

28 includes family-based adjustment of status applications, naturalization, Deferred Action for

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1 Childhood Arrival (DACA) renewals, protection under the Violence Against Women Act, and

2 deportation defense. KRC also assists members, particularly seniors, with public benefits, such as

3 Medicaid, SNAP, and subsidized housing. The Regulation will cause KRC members and their

4 families to disenroll from, or to fear enrolling in, these important programs.

5

43. The Regulation will frustrate KRC’s mission by directly reducing the number of

6 clients and members who will be able to adjust to LPR status or maintain or change their non-

7 immigrant immigration status due to the public charge test. KRC’s members and clients include

8 individuals who are low-income and receive Medicaid, SNAP, subsidized housing, and other

9 public benefits, and who possess other characteristics considered to be negative factors under the

10 Regulation, including being elderly, having low incomes, and having limited-English proficiency.

11 KRC believes its individual members will be unable to adjust status as a result of the Regulation.

12

44. In addition, the Regulation will cause a diversion of limited resources by requiring

13 increased staffing and expenses related to immigration consultations, translation services,

14 outreach, and direct services related to public benefits eligibility.

15

45. KRC’s resources will also continue to be diverted to address the negative effects of

16 the Regulation and its implementation. Specifically, KRC has conducted educational outreach and

17 media releases about the public charge Regulation in both Korean and English, thereby diverting

18 resources away from critical services such as survival counseling for victims of domestic violence,

19 senior housing support, and health access education. KRC’s ongoing efforts to correct

20 misinformation about the public charge Regulation and its implementation continue, especially

21 because of the COVID-19 pandemic, which has exacerbated the uncertainty regarding public

22 benefits.

23 II. Defendants

24

46. Defendant Donald J. Trump is the President of the United States. He is sued in his

25 official capacity.

26

47. Defendant United States Department of Homeland Security (“DHS”) is a federal

27 agency headquartered in Washington, D.C.

28

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1

48. Defendant United States Citizenship and Immigration Services (“USCIS”) is a

2 component agency of DHS, which is responsible for the adjudication of applications for

3 adjustment of status and for extensions or modifications of stay by non-immigrant visa holders.

4 USCIS is the component of DHS that promulgated the public charge Regulation.

5

49. Defendant Kenneth T. Cuccinelli is the purported “Senior Official Performing the

6 Duties of the Director, U.S. Citizenship and Immigration Services.” He is sued in his official

7 capacity.

8

50. Defendant Chad Wolf is the purported Acting Secretary of DHS. He is sued in his

9 official capacity.

10

JURISDICTION AND VENUE

11

51. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as this case

12 arises under the U.S. Constitution and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.

13

52. Venue properly lies in this district because Plaintiffs LA CLÍNICA, CPCA,

14 LEGAL AID, CAIR-CA, and FJ work and provide services in this district. 28 U.S.C.

15 § 1391(e)(1). Venue also properly lies in this district because a substantial part of the events or

16 omissions giving rise to this action occurred in the district. 28 U.S.C. § 1391(b).

17

BACKGROUND

18 I. Current Statutory Framework

19

53. The INA is the primary statute governing immigration to the United States. Under

20 the INA, if a current resident of the United States seeks LPR status through a family-based or

21 employment-based petition, the first step is to file the petition and, if it is approved, wait until a

22 visa becomes available. If the resident has been admitted or paroled into the United States and

23 meets certain other conditions, the individual may file an application for adjustment of status with

24 USCIS, in most cases only once a visa becomes available. In determining whether a noncitizen is

25 eligible for adjustment of status, or whether an LPR who has been outside the United States for

26 more than 180 days can reenter the country, DHS officers assess whether the applicant is

27 inadmissible under section 212 of the INA (8 U.S.C. § 1182).

28

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1

54. Individuals seeking admission as nonimmigrants, such as temporary agricultural or

2 health care workers, foreign students, and cultural exchange visitors, are also assessed for

3 inadmissibility before receiving a visa. Most nonimmigrant visa holders may apply to extend or

4 change their visa provided certain conditions are satisfied, such as compliance with the terms of

5 their current visa.

6

55. Section 212(a)(4) of the INA provides that “[a]ny alien who, in the opinion of the

7 consular officer at the time of application for a visa, or in the opinion of the Attorney General at

8 the time of application for admission or adjustment of status, is likely at any time to become a

9 public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). This is commonly known as the

10 “public charge” ground of inadmissibility.

11

56. The statute further directs that an adjudicator making a determination on the public

12 charge ground “shall at a minimum consider the alien’s (I) age; (II) health; (III) family status; (IV)

13 assets, resources, and financial status; and (V) education and skills.” 8 U.S.C. § 1182(a)(4)(B)(i).

14 Together these five factors are referred to as the “totality of circumstances” test.

15

57. The adjudicator “may also consider any affidavit of support.” 8 U.S.C.

16 § 1182(a)(4)(B)(ii). The U.S. citizen or LPR sponsor who signs the affidavit of support pledges to

17 accept financial responsibility for the immigrant who is seeking admission or adjustment of status

18 and specifically pledges to maintain the sponsored immigrant “at an annual income that is not less

19 than 125 percent of the Federal poverty line during the period in which the affidavit is

20 enforceable.” 8 U.S.C. § 1183a(a)(1)(A). The affidavit is a legally enforceable contract between

21 the sponsor and the U.S. government.

22 II. The Public Charge Statute and Its Long-Standing Meaning.

23

58. For over a century, the term “public charge” has referred to persons who cannot

24 care for themselves and are thus primarily dependent on the government to avoid destitution.

25 Further congressional definition of the term was not necessary as the phrase had an established

26 meaning when first used and has been interpreted consistent with that meaning.

27

28

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1

59. The term first appeared in an 1882 act barring the admission of “any convict,

2 lunatic, idiot, or any person unable to take care of himself or herself without becoming a public

3 charge.” An Act to Regulate Immigration, ch. 376, § 2, 22 Stat. 214 (1882).

4

60. The Immigration Act of 1907 included those “likely to become a public charge”

5 among the categories of individuals barred entry, which also included “idiots,” “imbeciles,”

6 “insane persons,” “paupers,” “professional beggars,” and “persons . . . with a loathsome or

7 dangerous contagious disease.” An Act to regulate the immigration of aliens into the United

8 States, Pub. L. No. 96, § 2, 34 Stat. 898, 898–99 (1907).

9

61. As the Second Circuit recognized, “The excluded classes with which this provision

10 is associated are significant. It appears between ‘paupers’ and ‘professional beggars.’” Howe v.

11 United States, 247 F. 292, 294 (2d Cir. 1917). The court concluded, “We are convinced that

12 Congress meant the act to exclude persons who were likely to become occupants of almshouses

13 for want of means with which to support themselves in the future.” Id.; see also Gegiow v. Uhl,

14 239 U.S. 3, 10 (1915) (reasoning that “public charge” had “to be read as generically similar to the

15 others mentioned before and after” and rejecting an attempt to exclude individuals on public

16 charge grounds).

17

62. In 1952 Congress enacted § 212 of the INA, which excluded from admissibility

18 individuals “who, in the opinion of the consular officer at the time of application for a visa, or in

19 the opinion of the Attorney General at the time of application for admission, are likely at any time

20 to become public charges.” Pub. L. 414, ch. 2, § 212(a)(15), 66 Stat. 163, 183 (1952).

21

63. The Department of Justice has recognized courts’ longstanding interpretation of the

22 term “public charge” to mean a person who is “destitute.” For instance, the Department has

23 explained that “[t]he words ‘public charge’ had their ordinary meaning: that is to say, a money

24 charge upon or an expense to the public for support and care, the alien being destitute.” Matter of

25 Harutunian, 14 I. & N. Dec. 583, 586 (BIA 1974). Congress has not altered this meaning of

26 “public charge,” though it has revisited the topic on many occasions.

27

28

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1

64. In the INA of 1965, for instance, Congress deliberately overturned decades-old

2 laws that restricted immigration from certain global regions and opened the U.S. to immigrants

3 from all over the world. But Congress made no change to the public charge test.

4

65. In 1986, Congress enacted the Immigration Reform and Control Act (“IRCA”).

5 Congress again did not modify the “public charge” test. But Congress did provide additional

6 grounds for waivers allowing individuals deemed a public charge to overcome that determination.

7

66. Consistent with prior agency interpretations, the Immigration and Naturalization

8 Service (“INS”)—the previous federal agency tasked with administering immigration

9 applications—explained in 1987 that applicants would not be subject to exclusion on public-

10 charge grounds if “the applicant demonstrates a history of employment in the United States

11 evidencing self-support without the receipt of public cash assistance.” Adjustment of Status for

12 Certain Aliens, 52 Fed. Reg. 16,205, 16,211 (May 1, 1987) (emphasis added). The agency defined

13 “public cash assistance” as “income or needs-based monetary assistance . . . designed to meet

14 subsistence levels.” Id. at 16,209 (emphasis added). The agency specifically excluded “assistance

15 in kind, such as food stamps, public housing, or other non-cash benefits” from those benefits that

16 would render an individual a public charge. Id.

17

67. Congress again declined to alter the “public charge” test in the Immigration Act of

18 1990, despite making a number of other changes to immigration-related statutes.

19

68. In 1991, the State Department—an agency that also has primary responsibility for

20 implementing the INA’s public charge provisions—recognized in its Foreign Affairs Manual that

21 the essential issue in determining if an individual is a public charge within the meaning of INA

22 212(a)(4) is “whether the purpose of the public program in which the individual is participating is

23 specifically designed to support individuals unable to provide for themselves.” It recognized that

24 the purpose of the food stamp program is “to strengthen the agricultural economy and help achieve

25 a fuller use of food abundances through improving levels of nutrition among low-income

26 households. It has thus a number of objectives of a general nature and is not simply a matter of

27 welfare or relief as such . . . [A] program that is essentially supplementary in nature, in the sense

28 of providing training, services, food, etc. to augment the standard of living, rather than to

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1 undertake directly the support of the recipients does not fall within the scope of INA 212(a)(4).”

2 (emphasis added).

3

69. In 1996, Congress enacted the Personal Responsibility and Work Opportunity

4 Reconciliation Act of 1996 (“PRWORA”), which imposed restrictions on immigrant eligibility for

5 certain public benefits. But Congress did not alter the “public charge” test.

6

70. Congress again declined to change the meaning of “public charge” one month later

7 when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

8 (“IIRIRA”). In fact, Congress considered but rejected an expanded definition of “public charge”

9 that would have included food, health care, and housing assistance.

10

71. Instead, IIRIRA codified the totality-of-the-circumstances test, which had been

11 developed in case law and administrative policies. 8 U.S.C. § 1182(a)(4)(B)(i).

12

72. IIRIRA also introduced the affidavit of support that could be used to help an

13 immigrant overcome the public-charge barrier, so long as the sponsor pledged to maintain the

14 sponsored immigrant at or above 125% of the FPL. 8 U.S.C. §§ 1182(a)(4)(B)(ii);

15 1183a(a)(1)(A).

16

73. Following IIRIRA, the INS issued guidance explaining that the statute “has not

17 altered the standards used to determine the likelihood of an alien to become a public charge nor

18 has it significantly changed the criteria to be considered in determining such a likelihood.”

19 Immigration and Naturalization Serv., Dep’t of Justice, Public Charge: INA Sections 212(A)(4)

20 and 237(A)(5)—Duration of Departure for LPRs and Repayment of Public Benefits (Dec. 16,

21 1997).

22

74. Similarly, in 1998, the State Department stated that IIRIRA did “not change[] the

23 long-standing legal presumption that an able-bodied, employable individual will be able to work

24 upon arrival in the United States” and thus not become a public charge. Dep’t of State, I-864

25 Affidavit of Support: Update No. 14—Commitment to Provide Assistance, Unclas State 102426

26 (Cable dated June 8, 1998). The INS further stated “[t]he presumption that the applicant will find

27 work coupled with the fact that the [affidavit of support] is a legally enforceable contract will

28

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1 provide in most cases a sufficient basis to accept a sponsor’s . . . technically sufficient [affidavit]

2 as overcoming the public charge ground.” Id.

3

75. Although the INS and State Department recognized that IIRIRA made no changes

4 to the longstanding meaning or interpretation of the term “public charge,” the INS was concerned

5 that, because Congress passed both IIRIRA and PRWORA close in time, “confusion about the

6 relationship between the receipt of public benefits and the concept of ‘public charge’ ha[d]

7 deterred eligible [non-citizens] and their families, including U.S. citizen children, from seeking

8 important health and nutrition benefits that they are legally entitled to receive.” Field Guidance on

9 Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,692 (May

10 26, 1999) (“1999 Field Guidance”).

11

76. The INS recognized that “[t]his reluctance to access benefits has an adverse impact

12 not just on the potential recipients, but on public health and the general welfare.” Id., 64 Fed. Reg.

13 at 28,692. The uncertainty following IIRIRA and PRWORA was “undermining the Government

14 policies of increasing access to health care and helping people to become self-sufficient.”

15 Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676, 28,677

16 (proposed May 26, 1999) (“Public Charge Grounds”).

17

77. To alleviate that confusion and its deleterious effects, the INS published two

18 documents in the 1999 Federal Register to confirm that the longstanding historic understanding of

19 the term “public charge” remained operative.

20

78. The first was a Notice of Proposed Rulemaking (“NPRM”) in which the INS

21 confirmed that the term “public charge” meant an individual “who is likely to become . . .

22 primarily dependent on the Government for subsistence, as demonstrated by either the receipt of

23 public cash assistance for income maintenance or institutionalization for long-term care at

24 Government expense.” Public Charge Grounds, 64 Fed. Reg. at 28,677. The agency never issued

25 a final rule.

26

79. The second was the INS Field Guide that aimed to “help alleviate public confusion

27 over the meaning of the term ‘public charge’ in immigration law and its relationship to the receipt

28 of Federal, State, and local public benefits” and to “provide aliens with better guidance as to the

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1 types of public benefits that will and will not be considered in public charge determinations.”

2 1999 Field Guidance, 64 Fed. Reg. at 28,689.

3

80. These documents dictated that agencies consider only receipt of cash assistance for

4 income maintenance (such as Temporary Assistance for Needy Families, Supplemental Security

5 Income, and state equivalents) and publicly funded long-term institutionalization in making the

6 public-charge determination.

7

81. In explaining its interpretation of “public charge,” the INS recognized that “federal,

8 state, and local benefits are increasingly being made available to families with incomes far above

9 the poverty level, reflecting broad public policy decisions about improving general public health

10 and nutrition, promoting education, and assisting working-poor families in the process of

11 becoming self-sufficient.” Id., 64 Fed. Reg. at 28,692. This meant that “participation in such non-

12 cash programs is not evidence of poverty or dependence.” Id.

13

82. The INS further observed that non-cash benefits “are by their nature supplemental

14 and do not, alone or in combination, provide sufficient resources to support an individual or

15 family.” Id. By focusing only on cash assistance for income maintenance and long-term

16 institutionalization, the INS could thus “identify those who are primarily dependent on the

17 government for subsistence without inhibiting access to non-cash benefits that serve important

18 public interests.” Id.

19

83. The INS also explained that the focus on cash benefits for making the public charge

20 determination was consistent with the advice provided by federal benefits agencies, including the

21 Department of Health and Human Services, the Department of Agriculture, and the Social

22 Security Administration. Each department had concurred that “receipt of cash assistance for

23 income maintenance is the best evidence of primary dependence on the Government” because

24 “non-cash benefits generally provide supplementary support . . . to low-income working families

25 to sustain and improve their ability to remain self-sufficient.” Public Charge Grounds, 64 Fed.

26 Reg. at 28,677–78.

27

84. The INS reasoned further, based on input from the Department of Health and

28 Human Services, that while as a general matter, it could not “conceive of a situation where an

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1 individual . . . could support himself or his family solely on non-cash benefits so as to be primarily

2 dependent on the government,” it made one exception for long-term institutionalization at

3 government expense, which should be considered in the public charge determination. Id., 64 Fed.

4 Reg. at 28,678.

5

85. In addition, under the 1999 Field Guidance, forms of cash not intended for income

6 maintenance and cash benefits that have been earned, such as government pension benefits or

7 veteran’s benefits, were not considered cash benefits for purposes of the public-charge

8 determination and should not be taken into account. Further, “[p]ast receipt of non-cash benefits

9 [such as Medicaid, CHIP, nutrition programs, housing benefits, child care services, energy

10 assistance, emergency disaster relief, foster care and adoption assistance, educational assistance,

11 job training programs, and in-kind, community-based programs, as well as similar state and local

12 programs] should be excluded from consideration for public charge purposes.” 64 Fed. Reg. at

13 28,693.

14

86. The INS noted that the “primary dependence model of public assistance was the

15 backdrop against which the ‘public charge’ concept in immigration law developed in the 1800s.”

16 Since then, legislators, judges, and executive officials have consistently understood the term to

17 refer to those who are primarily dependent on the government to avoid destitution. This is of

18 particular importance given the many times that Congress has sought to re-employ the term over

19 the years including in 1891, 1903, 1907, 1917, 1952, 1990, and 1996. At no time has Congress

20 widened the concept of “public charge” to include nutrition, health care (other than

21 institutionalization), housing, or other non-cash programs, even as public assistance programs

22 expanded and changed over the years.

23

87. Although the 1999 NPRM never became a final rule, the Field Guidance governed

24 Defendants’ public charge policy until the new Regulation, at issue in this litigation, was finalized.

25

88. Indeed, the Congressional Research Service explained that, until the new

26 Regulation, Defendants’ position had been consistent and clear: “USCIS, in making public charge

27 determination for aliens applying for adjustment to LPR status, only considers cash income-

28 maintenance benefits and government-funded institutionalization for long-term care. Cash

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1 assistance for income maintenance . . . ‘includes Supplemental Security Income (SSI), cash

2 assistance from the Temporary Assistance for Needy Families (TANF) program and state or local

3 cash assistance programs for income maintenance, often called “general assistance”

4 programs’ . . . . [A]n alien’s past or current receipt of these benefits or of government funded long-

5 term care does not automatically lead to a determination of inadmissibility, but instead only

6 factors into the prospective analysis under the totality of the circumstances test.” Congressional

7 Research Service, Immigration: Frequently Asked Questions about “Public Charge” at 7 (Sept. 19,

8 2018), https://fas.org/sgp/crs/homesec/R45313.pdf.

9

89. In fact, Congress has expanded immigrants’ access to some of the benefits that had

10 been explicitly excluded from the public charge determination. In the 2002 Farm Bill, for

11 example, Congress restored eligibility for food stamps (now known as “SNAP”) to immigrant

12 children, immigrants receiving disability benefits, and adults who had lived in the United States in

13 a “qualified” immigrant status for five years. Farm Security and Rural Investment Act of 2002,

14 Pub L. No. 107-171 (May 13, 2002). Significantly, despite legislating in the exact space of

15 benefits use and immigration, Congress did not undermine the Field Guidance’s explanation of the

16 longstanding definition, and consistent interpretation, of “public charge.”

17

90. Although Congress and administrative agencies have interpreted “public charge”

18 consistently since the term was first used, altering the definition of “public charge” has been a

19 clear priority from the early days of the Trump administration. During the President’s first month

20 in office, members of the administration drafted an executive order to reinterpret the term. That

21 executive order was leaked to the public. The administration never issued the executive order.

22

91. Instead, in 2017, the Trump Administration endorsed the Reforming American

23 Immigration for Strong Employment (“RAISE”) Act. That bill would have eliminated some of the

24 family-based admission preferences created by the 1965 Act and established a point-based system

25 for evaluating potential immigrants. The system would have awarded points based on factors

26 including age, formal education, English language proficiency, and highly-compensated

27 employment. The RAISE Act would have disadvantaged many groups of potential immigrants,

28

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1 including applicants who had family ties to U.S. citizens but who had limited formal education or

2 employment history and middle-aged and older adults.

3

92. In 2017, Congress once again rejected changes to the existing immigration system

4 and declined to pass the RAISE Act.

5

93. Subsequently, on October 10, 2018, the Department of Homeland Security

6 published its Notice of Proposed Rulemaking for the Regulation. This Regulation incorporated

7 many of the rejected changes from the RAISE Act under the guise of an expanded totality of

8 circumstances test for determining whether an individual was likely to become a “public charge.”

9 III. Defendants’ New Public Charge Regulation

10

94. On August 14, 2019, the Department of Homeland Security published the

11 Regulation.

12

95. The Regulation drastically redefines the term “public charge.” Under the

13 Regulation, “public charge” means a noncitizen “who receives one or more public benefits, as

14 defined in paragraph (b) of this section, for more than 12 months in the aggregate within any 36-

15 month period.” Inadmissibility of Public Charge Grounds, 84 Fed. Reg. 41,292, 41,501 (Aug. 14,

16 2019) (codified as 8 CFR § 212.21(a)). Paragraph (b) defines “public benefit” to mean any receipt

17 of federal, state, local, or tribal cash assistance for income maintenance and includes receipt of

18 health assistance through Medicaid (with some exceptions); SNAP benefits; and housing

19 assistance through Section 8 housing choice vouchers, project-based Section 8 rental assistance, or

20 public housing. Several of these non-cash benefits were not included in prior agency definitions

21 of “public charge,” and were, in fact, specifically excluded. The Regulation counts all benefits

22 equally, regardless of the value of the benefit received.

23

96. The Regulation next defines the term “likely at any time to become a public

24 charge.” Id. (codified as 8 CFR § 212.21(c)); see 8 U.S.C. § 1182(a)(4)(A). Under the

25 Regulation, “[l]ikely at any time to become a public charge means more likely than not at any time

26 in the future to become a public charge, as defined [above], based on the totality of the alien’s

27 circumstances.”

28

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97. Under the Regulation, the totality of the circumstances determination is prospective

2 and looks to “all factors that are relevant to whether the alien is more likely than not at any time in

3 the future [to receive one or more public benefit for 12 months over a 36-month period].” 84 Fed.

4 Reg. at 41,502 (codified as 8 CFR § 212.22(a)). As prescribed by Section 1182(a)(4)(B), the

5 determination must consider, at minimum, the individual’s “age; health, family status, education

6 and skills, and assets, resources, and financial status.” 84 Fed. Reg. at 41,502 (codified as 8 CFR

7 § 212.22(b)).

8

98. As to age, the agency must consider whether the noncitizen is between 18 and the

9 minimum retirement age for Social Security. Id. (codified as 8 CFR § 212.22(b)(1)).

10

99. With regard to health, the agency must consider whether the individual’s health,

11 including any diagnosed medical conditions, makes the individual more or less likely to be a

12 public charge. Id. (codified as 8 CFR § 212.22(b)(2)).

13

100. The Regulation next requires that the agency consider whether the individual’s

14 household size makes the individual more or less likely to become a public charge. Id. (codified

15 as 8 CFR § 212.22(b)(3)).

16

101. As to assets, resources, and financial status, the Regulation requires the agency to

17 consider, inter alia, whether the individual’s household’s annual gross income is at least 125% of

18 the FPL (100% for active duty military personnel). If it is under that amount, the agency must

19 consider whether the individual has “significant assets.” Id. (codified as 8 CFR § 212.22(b)(4)(i)).

20 The Regulation also requires the agency to examine whether the individual has sufficient assets

21 and resources to cover “any reasonably foreseeable medical costs”; has any financial liabilities;

22 and has applied for, been certified to receive, or received public benefits. Id.

23

102. As evidence, the agency must look to the noncitizen’s sources of income, other

24 assets and resources, credit score, whether the noncitizen has private health insurance, and whether

25 the noncitizen has applied for, been certified or approved for, disenrolled or requested to be

26 disenrolled from, or received public benefits. Id. at 41,503 (codified as 8 CFR § 212.22(b)(4)(ii)).

27

103. Finally, as to education and skills, the agency is to look to whether the noncitizen

28 “has adequate education and skills to either obtain or maintain lawful employment with an income

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1 sufficient to avoid being more likely than not to become a public charge,” including evidence of

2 past work history, education level, and English language proficiency. Id. (codified as 8 CFR

3 § 212.22(b)(5)).

4

104. The Regulation selects a subset of factors to be “heavily weighted” in the

5 determination. Id. at 41,504 (codified as 8 CFR § 212.22(c)(1)). The Regulation adopts the

6 following “heavily weighted negative factors” under 8 CFR § 212.22(c)(1):

7

(A) The noncitizen is not a full-time student and is authorized to work, but is

8

unable to demonstrate current employment, recent employment history, or a

9

reasonable prospect of future employment;

10

(B) The noncitizen has received, or been certified or approved to receive, public

11

benefits for more than 12 months within any 36-month period;

12

(C) The noncitizen has been diagnosed with a medical condition that will

13

interfere with the alien’s ability to support him or herself and the noncitizen

14

is uninsured and has neither the prospect of receiving private insurance nor

15

the financial resources to pay for reasonably foreseeable expenses due to a

16

medical condition; and

17

(D) The noncitizen has previously been found inadmissible or deportable on

18

public charge grounds.

19

105. The Regulation includes as “heavily weighted positive factors”:

20

(A) The noncitizen’s “household has financial assets, resources, and support,”

21

excluding illegal activities or public-benefit income, of at least 250% of

22

FPL. Id. (codified as 8 CFR § 212.22(c)(2)(i)). That income threshold

23

equates to over $64,000 a year for a family of four, more than the median

24

household income for households of any size in the United States.

25

(B) The noncitizen is authorized to work and has a legal annual income of at

26

least 250 percent of the FPL for her household size; and

27

28

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1

(C) The noncitizen has private health insurance, excluding health insurance

2

subsidized by premium tax credits established by the Patient Protection and

3

Affordable Care Act.

4

106. The Regulation adds new, non-statutory factors for USCIS to consider in

5 evaluating the affidavit of support. USCIS must now also evaluate the sponsor’s annual income,

6 the sponsor’s relationship to the applicant, the likelihood that the sponsor will actually provide the

7 required financial support, “and any other related considerations.” Id. (codified as 8 CFR

8 § 212.22(b)(7)).

9

107. The Regulation also requires applicants to compile extensive documentation of

10 their finances and to fill out a newly developed 15-page form that the agency estimates will

11 require 4.5 hours to complete.

12

108. The Regulation also applies a public charge test to an entirely new group of people:

13 nonimmigrant visa holders seeking to extend or change their visas. USCIS must evaluate whether

14 the person has received the designated benefits for more than 12 months in the aggregate within a

15 36-month period since obtaining their status.

16

109. During the notice and comment period, hundreds of thousands of comments were

17 submitted, “the vast majority” opposing the proposed Regulation, as acknowledged by the agency.

18 84 Fed. Reg. at 41,304. Commenters explained that the factors were not rationally related to

19 predicting the likelihood of a noncitizen becoming a public charge, were arbitrary and vague, and

20 would cause substantial negative effects.

21

110. For example, commenters criticized the proposed Regulation’s threshold of 15% of

22 the Federal Poverty Guidelines as the value of monetizable benefits a noncitizen could receive

23 over a 12-month period without being a public charge. According to several sets of commenters,

24 the threshold was far too low to show dependency on benefits and did not account for the taxes

25 that immigrants pay and the fact that they pay more into the healthcare system than they take out.

26

111. Rather than engage with these criticisms, the Regulation instead moved the

27 threshold from 15% to 0%, such that receipt of benefits of any value over the applicable time

28 period qualifies a noncitizen as a public charge. See 84 Fed. Reg. at 41,357–58. DHS did not

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1 explain how comments indicating the 15% threshold was too low justified an even lower

2 threshold, electing to simply call its final choice a better policy than its prior proposal.

3

112. The irrationality of this response is further compounded by the Regulation’s

4 counting of each month of each individual benefit received separately, such that receipt of 2

5 benefits for 6 months or 3 benefits for 4 months, regardless of value, will meet the threshold.

6 Thus, in response to comments that one year at 15% utilization was too low to show dependency

7 on benefits, the Regulation went lower as to both duration and percentage.

8

113. In addition, Defendants failed to adequately respond to comments related to the

9 potential retroactive application of the Regulation. Although Defendants repeatedly assert that the

10 Regulation will have no retroactive effect and implicates no reliance interests, Defendants failed to

11 adequately respond to concerns that the new Form I-944 asks applicants to list all benefits that the

12 applicant ever used and to list the dates of the use of those benefits even if they were used before

13 the effective date of the Regulation. If DHS does not intend to take past use of benefits into

14 account, there is no reason to ask for this information, yet DHS also claims that Form I-944

15 requests information “about all the relevant factors” for the public charge determination.

16 Inadmissibility of Public Charge Grounds, 84 Fed. Reg. at 41,483. Questions on the Form I-944

17 about past use of public benefits, which DHS simultaneously claims are relevant and not relevant

18 to the public charge determination, creates internal inconsistency and ambiguity about the

19 retroactive effect of the Regulation.

20

A. Impact of the New Regulation on Immigrants and Non-White Communities

21

114. Defendants’ Regulation will label as a “public charge” a very large percentage of

22 immigrants, including low-and moderate-income working families. In fiscal year 2017, 83% of all

23 immigrants who received green cards were subject to the public charge test.1 The remainder were

24 exempt under the statute.

25

26
27 1 See Randy Capps, et al., Gauging the Impact of DHS’s Proposed Public-Charge Rule on U.S. Immigration, Migration Policy (Nov. 2018), https://www.migrationpolicy.org/research/impact-
28 dhs-public-charge-rule-immigration.

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1

115. While only roughly 2–4% of the noncitizen population would have qualified as a

2 public charge under the prior definition, the Regulation will now sweep in vast numbers of

3 individuals who, like millions of working Americans, will receive one or more of the

4 supplemental benefits listed in the Regulation over the course of a lifetime. Under a similar

5 definition of public charge, which applies to individuals seeking to enter the United States from

6 abroad, State Department findings of ineligibility on the basis of public charge increased from

7 1,076 in 2016 to 20,941 in 2019, a 946% increase. The increases have disproportionately affected

8 immigrants from predominantly non-white countries. For instance, ineligibility findings on public

9 charge grounds of intending immigrants from Mexico increased from 7 in 2016 to 5,343 in 2018.

10 Similarly, in 2018 the State Department denied 1,254 immigrant visas for Indian nationals after

11 denying none in 2016. And the State Department denied 1,109 immigrant visas to Haitian

12 nationals in 2018, after denying none in 2016. Meanwhile, only three Canadian nationals had

13 immigrant visas denied in 2018.2

14

116. In fact, the Regulation’s definition is so expansive that, if applied to U.S.-born

15 citizens, roughly half of the population would be characterized as “public charges,” simply

16 because they will receive one of the listed supplemental benefits at some point in their lifetimes.

17

117. The Regulation will also affect an estimated 2.3 million nonimmigrants with

18 temporary visas, including students and agricultural workers, who attempt to extend their visas or

19 change their non-immigrant status over a five-year period. The Regulation introduces an

20 unprecedented public charge inquiry and potential barrier for these groups. See DHS, RIN: 1615-

21 AA22, Inadmissibility on Public Charge Grounds 28–32 (Aug. 2019).

22

118. The increase in denials for green cards will not be based solely on current or recent

23 benefit use but will also be based on immigration officers’ determinations that individuals are

24 likely to use benefits in the future considering the factors listed in the Regulation’s totality-of-the-

25

26 2 See Ted Hesson, Visa denials to poor Mexicans skyrocket under Trump’s State Department,
27 Politico (Aug. 6, 2019), https://www.politico.com/story/2019/08/06/visa-denials-poor-mexicanstrump-1637094.
28

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1 circumstances test. This forward-looking aspect of the test is likely to reshape immigration, as the

2 non-partisan Migration Policy Institute’s research indicated that based on recent legal permanent

3 residents’ data, around 69% had at least one factor that would be construed negatively under the

4 Regulation, 43% have at least two factors, and 17% had at least three.3

5

119. Overall, the Regulation’s modification of the totality-of-the-circumstances test will

6 disproportionately exclude women, children, and older adults and will serve to facilitate or

7 prolong the separation of immigrant families, striking at the heart of the pro-family immigration

8 policy conceived in 1965. Under the Regulation, many citizens, both U.S. and foreign born, will

9 encounter new barriers to uniting with their families.

10

120. The majority of green card applications, especially in communities of color, are

11 family-based petitions that allow U.S. citizens and LPRs to reunite with their immediate family

12 members in the United States. The Regulation’s negatively weighted factors disproportionately

13 and detrimentally affect communities of color.

14

121. According to a study of recently admitted lawful permanent residents that was

15 submitted in comments, 60% of those from Mexico and Central America had at least two negative

16 factors, compared with only 27% of those from Europe, Canada, and Oceania. Forty-eight percent

17 of recent LPRs from the Caribbean, 41% from Asia, 40% from South America, and 34% from

18 Africa had at least two negative factors and thus would be excluded at a disproportionately higher

19 rate than those from Europe, Canada, and Oceania.

20

122. Defendants do not dispute the disparate impact. In fact, the previous purported

21 acting director of USCIS Kenneth Cuccinelli has tacitly admitted its presence. At a press briefing

22 on the Regulation, when asked about the fact that the majority of those affected by the Regulation

23 would likely be Latino, Cuccinelli responded that “if we had been having this conversation 100

24

25

26
27 3 Randy Capps, Mark Greenberg, Michael Fix, & Jie Zong, Gauging the Impact of DHS’ Proposed Public-Charge Rule on U.S. Immigration, Migration Policy Institute, Nov. 2018, at 2.
28

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1 years ago, [the Regulation] would have applied more to Italians” than to other groups.4 And a day

2 later in an interview about the Regulation, Mr. Cuccinelli argued that “The New Colossus,” the

3 136-year-old sonnet inscribed at the base of the Statute of Liberty that welcomes “poor”

4 immigrants, referred to “people coming from Europe.”5

5

B. The Discriminatory Impact Is the Intended Purpose of the New Regulation.

6

123. The Trump Administration has made numerous efforts to suppress immigration

7 from non-white countries, including advocating an end to family-based immigration. Curtailing

8 immigration by people of color has been a thread uniting each of the Trump Administration’s

9 numerous attempts to change existing immigration law and regulations.

10

124. The Administration has promulgated numerous immigration-related executive

11 actions since January 2017, most either exclusively or disproportionately harming immigrants

12 from non-white-majority nations, including:

13

(A) Separating thousands of young children from their parents as a proclaimed

14

deterrent to immigration at the southern border;

15

(B) Refusing refuge to immigrants seeking asylum, and criminally prosecuting

16

asylum seekers for crossing the border between checkpoints;

17

(C) Initially suspending the refugee admission program and then slashing the

18

number of refugees who may be admitted from 110,000 to 30,000 in 2019,

19

and 20,000 in 2020;

20

(D) Ending the Deferred Action for Childhood Arrivals program;

21

(E) Terminating Temporary Protected Status for nationals of El Salvador,

22

Honduras, Haiti, Nepal, Sudan, and Nicaragua;

23

(F) Excluding nationals from several majority-Muslim countries; and

24

25

26 4 Chris Rodrigo, White House: New immigration policy meant to promote ‘self-sufficiency and personal responsibility’, The Hill (Aug. 12 2019), https://thehill.com/homenews/
27 administration/457093-white-house-defends-new-immigration-policy. 5 Jacey Fortin, ‘Huddled Masses’ in Statue of Liberty Poem Are European, Trump Official Says,
28 N.Y. Times (Aug. 14, 2019), https://www.nytimes.com/2019/08/14/us/cuccinelli-statue-libertypoem.html.

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1

(G) Expanding the exclusion of majority-Muslim countries to include primarily

2

African nations.

3

125. These attempted changes have occurred alongside a string of racist statements by

4 the President predating his seeking office and continuing through to the final days before the

5 Regulation’s promulgation, including:

6

(A) Rising to political prominence based upon the racist false claim that

7

President Obama was not born in the United States and/or had allegiance to

8

Kenya;6

9

(B) Running a campaign replete with racist aspersions about people of Mexican

10

descent and of the Muslim faith;7 and

11

(C) Wrongly slurring countries of the African diaspora by declaring while in

12

office that Haitians “all have AIDS”; that once Nigerians had seen the

13

United States, they would never go “back to their huts”; and that America

14

should not be a haven for “people from shithole countries,” allegedly

15

referring to Haiti and African nations, while stating that the U.S. should

16

instead have immigrants coming from places like Norway.8

17

126. Moreover, the President asserted the need to be “very careful” and to require

18 “totally proper documentation” from people fleeing devastation in the Bahamas caused by

19

20 6 Alexander Burns, Trump: Obama born in Kenya, Politico (May 25, 2012),
21 https://www.politico.com/blogs/burns-haberman/2012/05/trump-obama-born-in-kenya-124569.
22 7 Matt Ford, Trump Attacks a ‘Mexican’ U.S. Federal Judge, Atlantic (May 28, 2016), https://www.theatlantic.com/politics/archive/2016/05/trump-judge-gonzalo-curiel/484790/;
23 Maggie Haberman & Richard Oppel Jr., Donald Trump Criticizes Muslim Family of Slain U.S. Soldier, Drawing Ire, N.Y. Times (July 30, 2016), https://www.nytimes.com/2016/07/31
24 /us/politics/donald-trump-khizr-khan-wife-ghazala.html.
25 8 Michael Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times (Dec. 23, 2017), https://www.nytimes.com/2017/12/23/
26 us/politics/trump-immigration.html; Ali Vitali, Kasie Hunt, & Frank Thorp V, Trump referred to Haiti and African nations as 'shithole' countries, NBC News (Jan. 12, 2018),
27 https://www.nbcnews.com/politics/white-house/trump-referred-haiti-african-countries-shitholenations-n836946.
28

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1 Hurricane Dorian because of his belief that “very bad people and some very bad gang members

2 and some very very bad drug dealers” would be among them.9 He referred to migrant groups

3 mostly from Central America seeking asylum in the United States as “an invasion”10 and that

4 asylum seekers were “some of the roughest people you’ve ever seen.”11

5

127. Courts considering challenges to the Administration’s immigration policies have

6 routinely considered the President’s statements as evidence of discriminatory animus toward

7 immigrants of color.12

8

9

10 9 Jessica Kwong, Donald Trump Suggests ‘Very Bad’ People, Gangs and Drug Dealers in
11 Bahamas Could Be Trying to Enter U.S., Newsweek (Sept. 9, 2019), Newsweek.com/trump-badpeople-gangs-bahamas-entering-1458384.
12 10 Jordan Fabian, Trump: Migrant Caravan ‘Is An Invasion’, The Hill (Oct. 29, 2018),
13 https://thehill.com/homenews/administration/413624-trump-calls-migrant-caravan-an-invasion.
14 11 Michelle Mark, Trump Mocks Asylum-Seekers at the Border, Says They ‘Look Like They Should Be Fighting for the UFC’, Business Insider (Apr. 6, 2019), https://www.businessinsider.com/
15 trump-mocks-asylum-seekers-calls-system-scam-2019-4.
16 12 See, e.g., CASA de Md. v. Trump, 355 F. Supp. 3d 307, 325–26 (D. Md. 2018) (“Defendants do not suggest that President Trump’s alleged statements are not evidence of discriminatory motive
17 on his part, nor could they. One could hardly find more direct evidence of discriminatory intent towards Latino immigrants.”); see also Arab Am. Civil Rights League v. Trump, 399 F. Supp. 3d
18 717, 729 (E.D. Mich. 2019) (denying post-Trump v. Hawaii motion to dismiss challenge to Muslim ban based, in part, on President Trumps anti-Muslim rhetoric); Int’l Refugee Assistance
19 Project v. Trump, 373 F. Supp. 3d 650, 678 (D. Md. 2019) (same); NAACP v. DHS, 364 F. Supp. 3d 568, 578 (D. Md. 2019) (denying motion to dismiss Equal Protection Clause challenge to
20 ending Temporary Protected Status (“TPS”) for Haitian nationals); Saget v. Trump, 375 F. Supp. 3d 280, 371–74 (E.D.N.Y. 2019) (same); La Union del Pueblo Entero v. Ross, 353 F. Supp. 3d
21 381, 395 (D. Md. 2018) (denying motion to dismiss, inter alia, Equal Protection claims regarding immigrants of color in challenge to adding citizenship question to 2020 Census); Ramos v.
22 Nielsen, 336 F. Supp. 3d 1075, 1108 (N.D. Cal. 2018) (granting preliminary injunction in challenge to decision to end TPS for El Salvador, Haiti, Honduras, and Nicaragua); Centro
23 Presente v. DHS, 332 F. Supp. 3d 393, 415 (D. Mass. 2018) (denying motion to dismiss as to Equal Protection claim in challenge to ending TPS for El Salvador, Haiti, and Honduras); State of
24 New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766, 810–11 (S.D.N.Y. 2018) (denying motion to dismiss in challenge to adding Census citizenship question); Regents of the Univ. of Cal.
25 v. DHS, 298 F. Supp. 3d 1304, 1314–15 (N.D. Cal. 2018), aff’d 908 F.3d 476, 519–20 (9th Cir. 2019) (denying motion to dismiss as pertained to Equal Protection challenge to ending Deferred
26 Action for Childhood Arrivals); Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 277–78 (E.D.N.Y. 2018) (same); Hawaii v. Trump, 241 F. Supp. 3d 1119, 1140 (D. Hawaii 2017) (granting
27 temporary restraining order, in part on Equal Protection grounds, for second iteration of travel ban targeting Muslim-majority nations).
28

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1

128. While the Regulation was in final review at the Office of Management and Budget,

2 President Trump made statements linking his view of immigration and racial exclusion.

3

129. Specifically, on July 14, 2019, the President claimed that four women of color

4 serving in the United States Congress “originally came from countries whose governments are a

5 complete and total catastrophe, the worst, most corrupt and inept anywhere in the world (if they

6 even have a functioning government at all)” and asked, “Why don’t they go back and help fix the

7 totally broken and crime infested places from which they came . . . .”

8

130. The President and the White House have been actively involved in pressing for the

9 Regulation.

10

131. For example, Senior Adviser to the President Stephen Miller had a “singular

11 obsession” with the public charge Regulation. He took issue with the approach of then-head of

12 USCIS, Francis Cissna, on changing the agency’s long-standing interpretation of public charge.

13 In a June 2018 email to Cissna, copying Chad Wolf (now the purported Acting Secretary of DHS),

14 Miller said “the timing on public charge is unacceptable . . . I don’t care what you need to do to

15 finish it on time.” In response to an email from then-USCIS Chief Counsel Craig Symons on how

16 USCIS will “do what we can to quickly move” the Regulation “back up to the Department and

17 then OMB [Office of Management and Budget],” Miller said that the head of OMB “Mick

18 [Mulvaney] promised the president.”13

19

132. In March 2019, during a meeting with officials covering immigration policy

20 priorities like the public charge Regulation and federal rules for detaining children, Miller told

21 staff that “You ought to be working on this regulation all day every day,” and that “[i]t should be

22

23

24
25 13 Nick Miroff, et al., Trump to place Ken Cuccinelli at the head of the country’s legal immigration system, Wash. Post (May 24, 2019), https://www.washingtonpost.com/
26 immigration/trump-to-place-ken-cuccinelli-at-the-head-of-the-countrys-legal-immigrationsystem/2019/05/24/143fdec8-7e64-11e9-a5b3-34f3edf1351e_story.html?utm_term=.
27 5ddcfc7451bc; Emails from Stephen Miller, June 8, 2018, available at https://www.politico.com/f/?id=0000016c-5349-de87-affd-7bc9eff20001.
28

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1 the first thought you have when you wake up. And it should be the last thought you have before

2 you go to bed. And sometimes you shouldn’t go to bed.”14

3

133. When the Regulation came out in August 2019, the then-acting director of USCIS,

4 Kenneth Cuccinelli, held press conferences on the Regulation and how “President Trump has once

5 again delivered on his promise” regarding immigration.15 As noted above, in response to a

6 question about how this new Regulation will target Latinos, Mr. Cuccinelli stated that “if we had

7 been having this conversation 100 years ago, it would’ve applied to more Italians.”

8

134. After changing the words to Emma Lazarus’s sonnet at the Statute of Liberty,

9 “Give me your tired and your poor,” by adding “who can stand on their own two feet and who will

10 not become a public charge,” Mr. Cuccinelli defended his rewriting of history, explaining “that

11 poem was referring back to people coming from Europe where they had class-based societies.”16

12

135. This was not Mr. Cuccinelli’s first foray into discriminatory language related to

13 immigration. While running for Governor of Virginia as state Attorney General, it came out that

14 during a radio interview, Mr. Cuccinelli had compared D.C.’s pest control policy to immigration

15 policy, saying the former was “worse than our immigration policy. You can’t break up rat

16 families.”17

17

18

19

20 14 Eileen Sullivan & Michael D. Shear, Trump Sees an Obstacle to Getting His Way on
21 Immigration: His Own Officials, N.Y. Times (Apr. 14, 2019), https://www.nytimes.com/ 2019/04/14/us/politics/trump-immigration-stephen-miller.html.
22 15 Press Briefing by USCIS Acting Director Ken Cuccinelli (Aug. 12, 2019),
23 https://www.whitehouse.gov/briefings-statements/press-briefing-uscis-acting-director-kencuccinelli-081219/.
24 16 Devan Cole & Caroline Kelly, Cuccinelli Rewrites Statue of Liberty Poem to Make Case for
25 Limiting Immigration, CNN (Aug. 13, 2019), https://www.cnn.com/2019/08/13/politics/kencuccinelli-statue-of-liberty/index.html.
26 17 Nick Wing, Ken Cuccinelli Once Compared Immigration Policy To Pest Control, Exterminating
27 Rats, Huffpost (July 26, 2013), https://www.huffpost.com/entry/ken-cuccinelli-immigrationrats_n_3658064.
28

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1

136. Mr. Cuccinelli also has echoed the President, referring to immigrants crossing the

2 southern border as an “invasion” and suggesting states “don’t have to keep them, no catch-and-

3 release, no nothing. You just point them back across the river and let them swim for it.”18

4

137. The Administration’s prior acting director of Immigration and Customs

5 Enforcement (“ICE”), Mark Morgan (now acting commissioner of U.S. Customs and Border

6 Protection), also dehumanized and engaged in blatant stereotyping and discrimination against

7 immigrants, saying of unaccompanied children in immigration detention that “I’ve looked at them

8 and I’ve looked at their eyes . . . and I’ve said that is a soon-to-be MS-13 gang member. It’s

9 unequivocal.”19

10

C. Defendants’ Unlawful Appointments Related to the Regulation

11

138. In addition to the above pattern of overt discrimination, Defendants manipulated

12 the leadership structure of DHS and USCIS in connection with their goal of issuing the

13 Regulation, as well as to further their other immigration policies motived by racial animus. These

14 actions violated federal law. In particular, Mr. Kevin McAleenan, purported Acting DHS

15 Secretary at the time the Regulation was promulgated, was appointed in contravention of the rules

16 established by the DHS statute and regulations governing the appointment of the Acting Director

17 of DHS and the FVRA. In addition, Mr. Kenneth Cuccinelli, purported Acting USCIS Director at

18 the time the Regulation was promulgated, was appointed in violation of the FVRA, which governs

19 the appointment of Acting USCIS Director. The illegality of those appointments renders the

20 Regulation invalid under the FVRA and makes it contrary to law under the APA.

21

22

23

24 18 John Binder, Exclusive-Ken Cuccinelli: States Can Stop Migrant Caravan “Invasion” With
25 Constitutional War Powers, Brietbart (Oct. 23, 2018), https://www.breitbart.com/politics/ 2018/10/23/exclusive-ken-cuccinelli-statescan-stop-migrant-caravan-invasion-with-constitutional-
26 war-powers/.
27 19 Ted Hesson, Trump’s Pick for ICE Director: I Can Tell Which Migrant Children Will Become Gang Members By Looking Into Their Eyes, Politico (May 16, 2019), https://www.politico.com/
28 story/2019/05/16/mark-morgan-eyes-ice-director-1449570.

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1

1. Statutory and Regulatory Regime for Appointment of DHS Acting

Officials

2

139. As a general matter, the FVRA serves as the default rule for appointing acting

3

officials. But it can be superseded where “a statutory provision expressly authorizes the President,

4

a court, or the head of an Executive department, to designate an officer or employee to perform the

5

functions and duties of a specified office temporarily in an acting capacity; or designates an officer

6

or employee to perform the functions and duties of a specified office temporarily in an acting

7

capacity.” 5 U.S.C. § 3347(a)(1)(A)-(B).

8

140. The FVRA applies in full to the appointment of Mr. Cuccinelli, as there is no

9

statutory provision designating an alternative order of succession to that prescribed by the FVRA

10

for the position of Director of USCIS.

11

141. Under the FVRA, vacancies in an office requiring Presidential nomination and

12

Senate confirmation can only be filled on an acting basis by certain individuals. Specifically, such

13

a vacancy can be filled by “the first assistant to the office of such officer,” by a person who has

14

already been confirmed by the Senate for a different office, or by a person who, during the year

15

prior to the vacancy, served as an officer or employee in the same agency for at least 90 days. 5

16

U.S.C. § 3345(a).

17

142. Unlike with the Director of USCIS, the DHS Organic Statute provides an

18

alternative approach that supersedes § 3345(a) for the Acting Director of DHS. That statute states

19

that “[n]otwithstanding [the FVRA],” the order of succession if the DHS Secretary position is

20

vacant is first the Deputy Secretary, see 6 U.S.C. § 133(a)(1)(A), and then the Under Secretary for

21

Management, see id. § 133(g)(1). It also states that “Notwithstanding chapter 33 of title 5, the

22

Secretary may designate such other officers of the Department in further order of succession to

23

serve as Acting Secretary.” Id. § 133(g)(2). DHS’s Organic Statute does not otherwise supersede

24

any other provision of the FVRA.

25

26

27

28

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1

143. Pursuant to 6 U.S.C. § 133(g)(2), the DHS Secretary issued a Regulation adopting a

2 further order of succession in 2016.20

3

144. Under the APA, regulations may be challenged when adopted contrary to law, see 5

4 U.S.C. § 706, including, as relevant here, the FVRA or an agency’s organic succession statute.

5

2. Mr. McAleenan’s Appointment

6

145. On April 7, 2019, then-Secretary of DHS Kirstjen Nielsen tendered her resignation

7 effective the same day. At that time, the next in line to become Secretary if that office was vacant,

8 the Deputy Secretary position, was unfilled. That same day, President Trump tweeted that Mr.

9 Kevin McAleenan, the Commissioner of Customs and Border Protection, would assume the role

10 of Acting Secretary.

11

146. But Mr. McAleenan was statutorily foreclosed from becoming Acting Secretary.

12 Rather, under the DHS Organic Statute, the Under Secretary for Management—then held by

13 Claire Grady—was required to assume the acting role. See 6 U.S.C. § 113(g)(1).

14

147. Nielsen then announced that she would remain Secretary until April 10, 2019.

15 During that span, Under Secretary Grady resigned.

16

148. But Ms. Grady’s resignation did not render Mr. McAleenan’s appointment valid

17 under DHS’s organic statute. When there is neither a Senate-confirmed Deputy Secretary nor

18 Under Secretary for Management, DHS is required to abide by its self-prescribed Order of

19 Succession if it has issued one. See 6 U.S.C. § 113(g)(2) (providing that DHS may designate

20 succession beyond the Under Secretary for Management).

21

149. Prior to April 10, the Order of Succession in effect was promulgated by then-

22 Secretary Jeh Johnson on December 15, 2016. Pursuant to that Order of Succession, Mr.

23 McAleenan would have been eligible to serve as acting secretary only if DHS lacked a Senate-

24

25
26 20 Letter to Comptroller General Dodaro from Reps. Thompson and Maloney and attachments (Nov. 15, 2019), available at, https://oversight.house.gov/sites/democrats.oversight.house.gov/
27 files/191115%20T%20Dodaro%20re%20Letter%20to%20GAO%20on%20WolfCuccinelli%20Appointment.pdf.
28

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1 confirmed officer in each of seven positions.21 Specifically, DHS would have to have vacancies in

2 the offices of the Secretary, Deputy Secretary, Under Secretary for Management, Administrator of

3 the Federal Emergency Management Administration, the Under Secretary for National Protection

4 and Programs, the Under Secretary for Science and Technology, and the Under Secretary for

5 Intelligence and Analysis.

6

150. On April 10, 2019—the same day as Ms. Grady’s resignation—Secretary Nielsen

7 amended that Order of Succession, but only for situations where the Secretary is incapable of

8 acting “during a disaster or catastrophic emergency.”22

9

151. Secretary Nielsen did not change the separate Order of Succession applicable “in

10 case of the Secretary’s . . . resignation, or inability to perform the functions of the office.” Id. As

11 a result, Secretary Nielsen’s actions did not change Mr. McAleenan’s position as eighth in line to

12 the acting secretary position.

13

152. At the time of Secretary Nielsen’s second resignation date, Senate-confirmed

14 appointees served as both the Under Secretary for National Protection and Programs and the

15 Under Secretary for Intelligence and Analysis. Mr. McAleenan was therefore third in line for the

16 acting secretary position, and could not be lawfully appointed to that position.

17

153. Despite being ineligible to do so, Mr. McAleenan purported to assume the role of

18 Acting Secretary on April 11, 2019. While invalidly serving in that position, Mr. McAleenan

19 issued the Regulation.23

20
21 21 See https://oversight.house.gov/sites/democrats.oversight.house.gov/files/ 191115%20T%20Dodaro%20re%20Letter%20to%20GAO%20on%20Wolf-
22 Cuccinelli%20Appointment.pdf.
23 22 See Annex A, https://oversight.house.gov/sites/democrats.oversight.house.gov/files/ 191115%20T%20Dodaro%20re%20Letter%20to%20GAO%20on%20Wolf-
24 Cuccinelli%20Appointment.pdf.
25 23 Because Mr. McAleenan was improperly appointed, his purported successor and current Acting Secretary Chad Wolf was also improperly appointed. Although there is a 210-day statutory limit
26 on acting secretary service, see 5 U.S.C. § 3346, Mr. McAleenan served past that 210-day deadline. On November 8, 2019, the 211th day of his invalid service, Mr. McAleenan purported
27 to again amend the Order of Succession at DHS. That succession amendment was necessarily invalid both because Mr. McAleenan was never a valid Acting Secretary, and even if he had been,
28 McAleenan purported to make the amendment after the 210-day period for acting-secretary

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1

154. Although the DHS Organic Statute superseded the FVRA’s provision regarding

2 which officials can properly serve as Acting Secretary, see 5 U.S.C. § 3345(a), it does not

3 supersede any other provision of the FVRA, including § 3348(d), which states that any action

4 taken by an improperly appointed person “shall have no force or effect.”

5

155. Because Mr. McAleenan was not properly appointed pursuant to the DHS’s

6 Organic Statute and the regulation implementing it, his issuance of the Regulation was unlawful,

7 and has no force or effect under the FVRA. Additionally, it was consequently contrary to law

8 under the APA.

9

3. Mr. Cuccinelli’s Appointment

10

156. Mr. Cuccinelli was invalidly appointed as acting director of USCIS and his

11 Department-head-level involvement with the Regulation’s promulgation as leader of USCIS is in

12 violation of the FVRA and contrary to law under the APA.

13

157. At roughly the same time that Mr. McAleenan improperly assumed the office of

14 Acting DHS Secretary, President Trump’s principal advisor on immigration, Mr. Stephen Miller,

15 had been urging the removal of Mr. Francis Cissna, then the Senate-confirmed Director of USCIS.

16 On information and belief, Mr. Miller’s desire to remove Mr. Cissna was due at least in part to Mr.

17 Miller’s stance that Mr. Cissna was moving too slowly in implementing the Regulation, as noted

18 above.24

19

158. Mr. Cissna resigned effective June 1, 2019. At that time, Mr. Cuccinelli was being

20 considered by the Administration for a post within the Department of Homeland Security from

21 which he would “coordinate the administration’s immigration policies.”25 Mr. Cuccinelli had a

22

23 service expired. That same day, the Senate invoked cloture on the nomination of Defendant Chad
24 Wolf to serve as the Under Secretary for Strategy, Policy, and Plans, which placed him next in line under the new succession order. On November 13, 2019, the Senate confirmed Mr. Wolf to that
25 position. Mr. McAleenan resigned the same day and Mr. Wolf purported to assume the Acting Secretary role.
26 24 Supra, n.13.
27 25 Maggie Haberman & Zolan Kanno-Youngs, Trump Expected to Pick Ken Cuccinelli for
28 Immigration Policy Role, N.Y. Times (May 21, 2019), available at, https://nyti.ms/30B3ZYb.

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1 long history of advocating for anti-immigrant policies. In addition to his conduct described above,

2 while Mr. Cuccinelli was a Virginia State Senator, he proposed bills to end birthright citizenship

3 and to allow firing of employees and denying unemployment benefits to anyone speaking a

4 language other than English at work.

5

159. On the date of Mr. Cissna’s resignation, June 1, 2019, Mr. Cuccinelli did not meet

6 any of the FVRA’s criteria for appointment to Director of USCIS. The position of first assistant

7 was then held by Mr. Mark Koumans. Mr. Koumans assumed the position of Acting Director of

8 USCIS on June 2, 2019. Shortly thereafter, the invalidly serving Acting Secretary McAleenan

9 created a new position at USCIS: “Principal Deputy Director.” Acting Secretary McAleenan

10 issued an order amending the succession procedure at USCIS and placing the just-created

11 Principal Deputy Director as second-in-command to the Director. Acting Secretary McAleenan

12 then appointed Mr. Cuccinelli to that purpose-made position—placing him above the Deputy

13 Director—and declaring him to be the acting director of USCIS as a result. Mr. Cuccinelli was

14 thus never a first assistant to any office as the existence of his job and appointment to the same

15 were simultaneous with his alleged elevation to the Acting Director role. This rendered his

16 appointment invalid under the FVRA. See L.M.-M. v. Cuccinelli, No. CV 19-2676 (RDM), 2020

17 WL 985376, at *15-19 (D.D.C. Mar. 1, 2020) (“[T]he Court concludes that Cuccinelli was

18 designated to serve as the acting Director of USCIS in violation of the FVRA.”).

19

160. Both Mr. Cuccinelli’s appointment and the change in succession noted that they

20 would terminate upon the appointment of a new Director of USCIS.

21

161. Mr. Cuccinelli was appointed before Acting Secretary McAleenan issued the

22 Regulation, and, on information and belief, Mr. Cuccinelli played an important role in

23 promulgating the Regulation as purported Acting Director of USCIS.26 Consistent with that

24
25 26 Ted Hesson & Anita Kumar, Cuccinelli Bores His Way Into Trump’s Inner Circle, Politico (July, 18, 2019), https://www.politico.com/story/2019/07/18/cuccinelli-immigration-trump-
26 1598325 (“At USCIS, the agency he runs, Cuccinelli has powered ahead with major Trump administration initiatives such as the ‘public charge’ regulation, which could block immigrants
27 from obtaining green cards if they use certain public benefits or are deemed likely to do so in the future.”); Brett Samuels, Unconfirmed by Senate, Cuccinelli Sees Power, Influence Grow on
28 Immigration, The Hill (Sept. 1, 2019), https://thehill.com/homenews/administration/459474-

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1 involvement, Mr. Cuccinelli was the one to announce the Regulation’s promulgation, holding a

2 press conference the day it was promulgated and describing the Regulation as the President

3 “delivering on his promise to the American people.”27

4

D. Additional Harms Resulting from the Regulation

5

162. While the Regulation targets immigrants of color, it will have significantly broader

6 consequences for the country’s public health and the economy as a whole.

7

163. Defendants admit that the proposed Regulation will create the following harms

8 because individuals will be deterred from using important supplemental benefits:

9

(A) Worse health outcomes, including increased prevalence of obesity and

10

malnutrition, especially for pregnant or breastfeeding women, infants, or

11

children, and reduced prescription adherence;

12

(B) Increased use of emergency rooms and emergent care as a method of

13

primary health care due to delayed treatment;

14

(C) Increased prevalence of communicable diseases, including among members

15

of the U.S. citizen population who are not vaccinated;

16

(D) Increases in uncompensated care in which a treatment or service is not paid

17

for by an insurer or patient;

18

(E) Increased rates of poverty and housing instability; and

19

(F) Reduced productivity and educational attainment. Inadmissibility of Public

20

Charge Grounds, 83 Fed. Reg. 51,114, 51,270 (Oct. 10, 2018) (NPRM);

21

Inadmissibility of Public Charge Grounds, 84 Fed. Reg. at 41,364–66

22

(responding to comments regarding detriments of disenrollment by noting,

23

inter alia, “rigorous application of the public charge ground of

24

25 unconfirmed-by-senate-cuccinelli-sees-power-influence-grow-on (noting that after Cuccinelli’s
26 invalid appointment, “USCIS rolled out three high profile policies in August,” including the public charge Regulation).
27 27 Ken Cuccinelli (@USCISCuccinelli), Twitter (Jul. 15, 2019, 9:21 AM)
28 https://twitter.com/usciscuccinelli/status/1150802490843176960?lang=en.

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1

inadmissibility will inevitably have negative consequences for some

2

individuals.”).

3

164. The proposed Regulation recognized that “reductions in federal and state transfers

4 under federal benefit programs may have downstream and upstream impacts on state and local

5 economies, large and small businesses, and individuals.” Inadmissibility of Public Charge

6 Grounds (NPRM), 83 Fed. Reg. at 51,118. The final Regulation acknowledged that reduced

7 program participation could result in higher poverty levels, reduced access to health care, and an

8 increase in severe and chronic health issues. See generally Inadmissibility of Public Charge

9 Grounds, 84 Fed. Reg. at 41,310–12 (detailing comments on effects of Regulation). In other

10 words, families will increasingly be poorer and less healthy.

11

165. Rather than contest commenters’ assertions, Defendants simply stated that it would

12 be “difficult to predict how this rule will affect aliens subject to the public charge ground of

13 admissibility.” Id., 84 Fed. Reg. at 41,313. DHS did not directly refute the numerous comments

14 estimating such impacts, did not address the chilling effect which necessarily does not require

15 estimating eligibility numbers, and conceded that it is not sure of the breadth of impact of the

16 Regulation.

17

166. The Regulation will create confusion and fear in immigrant communities and will

18 have a dramatic effect, potentially causing an estimated tens of millions of people to avoid seeking

19 services or to disenroll from core public-health and general-welfare programs. This includes

20 individuals subject to the public charge inquiry and individuals who are not subject to the

21 Regulation but who will nonetheless be dissuaded from applying for benefits for themselves and

22 their families. These harms defeat Defendants’ stated purpose of the Regulation because they

23 make it harder to achieve self-sufficiency for immigrants and their families, including their U.S.

24 citizen children. As immigration policy experts note, “public assistance can make someone less

25 likely to rely on government in the future” because “temporary use of public benefits can stabilize

26

27

28

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1 immigrants and families, putting them on a track to long-term financial stability and health.”28

2 While Defendants assert that altering the longstanding definition of “public charge” will save

3 costs, the long-term effect will be the exact opposite.

4

167. Deterring people from enrolling or remaining in vital programs that support their

5 health, food security, and ability to maintain housing will cause severe harm to the health and

6 welfare of communities across the country.

7

168. Reducing access to preventive care and vital health services will lead to a range of

8 negative health outcomes, including increased costs and rates of preventable disease, late

9 diagnoses, unmanaged chronic conditions, premature births, and early deaths. These effects will

10 reach far beyond the individuals who are subject to public charge determinations and will harm

11 significant numbers of U.S. residents regardless of their national origin or immigration status.

12

169. Deterring families from remaining in affordable housing will increase

13 homelessness and housing instability, leading to negative health outcomes and higher health care

14 costs. Lack of access to affordable housing will also lead to job instability and loss.

15

170. Reduction in use of SNAP benefits will increase food insecurity, which will lead to

16 negative health outcomes and correspondingly higher health-care costs.

17

171. U.S. citizen children living in mixed-status families are at particular risk. Evidence

18 shows that when parents lose access to health coverage, children are more likely to be uninsured.

19 The Regulation, therefore, is likely to increase the rates of uninsured children throughout the

20 country.

21

172. Reducing access to housing benefits will also result in severe and irreparable harm

22 to children, including impairment of cognitive development. SNAP benefits are particularly

23 important to mitigate the effects of poverty on children, and reducing access to these benefits will

24 have a negative impact on school attendance and performance, emotional and physical

25 development, and long-term health and achievement.

26
27 28 Matthew La Corte, The New ‘Public Charge’ Rule Will Harm the Rule of Law, Economic Growth, and Public Health, Niskanen Center (Aug. 28, 2018), https://niskanencenter.org/blog/the-
28 new-public-charge-rule-will-harm-the-rule-of-law-economic-growth-and-public-health/.

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1

173. In addition to the direct impact on immigrants, their families, and their

2 communities, the new Regulation will have severely negative impacts on several sectors of the

3 economy.

4

174. For example, SNAP benefits have a high multiplier effect as they circulate through

5 the economy. Every dollar of SNAP translates to $1.79 in local economic activity.

6

175. Businesses that accept SNAP will be disproportionately harmed and may need to

7 close or cut back on carrying healthy, perishable foods that can be purchased with SNAP, which

8 will reduce the healthy food options available in these communities.

9

176. The direct health impacts of the new Regulation will create additional negative

10 economic consequences because people who are uninsured miss more work, tend to be less

11 productive when they are working, and are more likely to retire at younger ages because of health

12 issues and disability. Among working-age adults, there is a significant correlation between food

13 insecurity and chronic disease, including conditions that can limit an individual’s ability to work.

14

177. Moreover, Medicaid supports hospitals, health centers, and other community

15 providers that are critical sources of care for low-income people and the broader community. By

16 reducing Medicaid enrollment, these providers will lose a primary source of funding, significantly

17 increasing the risk that hospitals and other providers will close or offer fewer services. When

18 health centers and other community providers close or reduce services, individuals have to rely on

19 more costly emergency care to address acute medical conditions.

20

178. The impacts of hospital closures and reductions are far-reaching. They push

21 providers to leave in their wake, and will affect access to care for all residents of their service

22 areas, particularly for rural communities, which generally have difficulty attracting health care

23 providers.

24

179. Hospital closures and cutbacks also harm local economies, as hospitals are major

25 employers and purchasers of goods and services. Moreover, communities without hospitals find it

26 more difficult to attract new industries, companies, and job seekers and thus grow their economies.

27

180. The Regulation will also have destabilizing effects on several other critical sectors

28 of the economy. For example, the public charge Regulation will disadvantage farmworkers who

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1 are adjusting to lawful permanent resident status, as these low-wage workers will find it difficult

2 to satisfy the new public charge test. Farmworker families will disproportionately have a number

3 of factors negatively weighed against them, including their income, lack of credit history and

4 health insurance, household-size, lack of education and skills, and lack of English proficiency.

5 The Regulation will also chill access to services for farmworkers who seek to apply for or extend

6 their nonimmigrant H-2A visas, as well as their family members.

7

181. The public charge Regulation will also destabilize the health care workforce—a

8 sector with a sizable immigrant population that relies on access to public programs. For example,

9 approximately 24% of direct care workers—comprising home health aides, personal care aides,

10 and nursing assistants—are foreign-born, and approximately 40% of foreign-born direct care 11 workers receive public benefits.29 The Regulation will force some workers to choose between

12 securing benefits and potentially undermining their opportunity to extend or change their

13 nonimmigrant visas or adjust their status. Others who would not be subject to the Regulation will

14 nonetheless refrain from seeking benefits to which they are entitled for fear of potential

15 consequences. If these individuals forgo access to benefits, and in particular health care benefits,

16 they will miss more work days and burden the vulnerable population whom they serve—a

17 population that consists overwhelmingly of older adults and U.S. citizens.

18

182. The administrative and adjudicative burdens imposed by the new Regulation and

19 the accompanying paperwork will cause significant delays in access to immigration benefits and

20 work authorization for all applicants. These delays will prevent affected individuals from being

21 able to support themselves and their families.

22

23

24

25

26

27 29 Robert Espinoza, Immigrants and the Direct Care Force, Paraprofessional Healthcare Institute,

28

June 2017, at 4–5, available at https://phinational.org/wp-content/uploads/ 2017/06/immigrants_and_the_direct_care_workforce_-_phi_-_june_2017.pdf.

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1

FIRST CLAIM FOR RELIEF

2

ADMINISTRATIVE PROCEDURE ACT

3 THE CHALLENGED REGULATION IS CONTRARY TO THE STATUTORY SCHEME

4

ESTABLISHED BY CONGRESS

5

5 U.S.C. § 706

6

183. Plaintiffs repeat and incorporate by reference each allegation contained in the

7 preceding paragraphs as if fully set forth herein.

8

184. The Regulation is a final agency action and subject to judicial review.

9

185. The APA prohibits agency action that is “not in accordance with law” or is “in

10 excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”

11

186. The Regulation’s definition of “public charge” is contrary to the plain and well-

12 established meaning of that phrase, and to how it has been interpreted and applied since 1882.

13 With knowledge of those interpretations and applications, Congress has repeatedly declined to

14 change the longstanding definition of “public charge.”

15

187. The new public charge definition is an unreasonable interpretation of and contrary

16 to the meaning of “public charge” in Section 1182. The Regulation uses the public charge ground

17 of inadmissibility to penalize the receipt of or likely use of certain public benefits even though

18 Congress has repeatedly rejected efforts to do precisely that.

19

SECOND CLAIM FOR RELIEF

20

ADMINISTRATIVE PROCEDURE ACT

21

THE CHALLENGED REGULATION IS ARBITRARY AND CAPRICIOUS OR

22

OTHERWISE NOT IN ACCORDANCE WITH LAW

23

5 U.S.C. § 706

24

188. Plaintiffs repeat and incorporate by reference each allegation contained in the

25 preceding paragraphs as if fully set forth herein.

26

189. The APA prohibits agency action that is “arbitrary, capricious, an abuse of

27 discretion, or otherwise not in accordance with law.”

28

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1

190. The Regulation is arbitrary and capricious because it departs from decades of prior

2 law and practice without adequate explanation.

3

191. The changes in policy are substantive and highly consequential, and they require a

4 showing that there are good reasons for the new policy, which Defendants have failed to provide.

5

192. Defendants failed to consider all relevant factors and articulate a rational

6 connection between the facts found and the decisions made. In fact, Defendants have offered

7 explanations for their decisions that run counter to the evidence before the agency.

8

193. The Regulation sets forth a number of different factors, some weighted more than

9 others, to determine whether an applicant is likely to become a public charge. These weighted

10 factors are not reasonably related to determining whether an individual is likely to become a

11 public charge. Indeed, even under Defendants’ expanded definition of “public charge,” these

12 various considerations do not predict a likelihood that an individual will receive benefits.

13

194. Defendants failed to consider that the factors are so vague they invite arbitrary or

14 discriminatory enforcement.

15

195. The Agency ignored or failed to adequately consider important aspects of the

16 problem, including evidence that the Regulation would cause harm by penalizing the use of

17 housing, health care, and nutritional assistance benefits.

18

196. The Agency failed to adequately consider the harms caused by the chilling effect of

19 the Regulation.

20

197. The Agency failed to adequately consider the racially disparate impact of the

21 policy.

22

198. In addition, although the Regulation provides several purported rationales for the

23 changes it makes to the public charge inquiry, those purported rationales are arbitrary, irrational,

24 not supported by the evidence in the record, and a pretext that conceal the true motivation, which

25 is to dismantle the family-based immigration system and make it more difficult for non-white

26 immigrants to remain in the United States. Even on their own terms, the explanations for the

27 Regulation are arbitrary and capricious.

28

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1

199. Defendants have also failed to adequately address the public comments that were

2 submitted in response to the proposed Regulation.

3

200. USCIS and DHS were improperly influenced in their rulemaking process by the

4 political motivations of individuals within the Trump Administration.

5

THIRD CLAIM FOR RELIEF

6

ADMINISTRATIVE PROCEDURE ACT

7

THE CHALLENGED REGULATION IS ARBITRARY AND CAPRICIOUS OR

8

OTHERWISE NOT IN ACCORDANCE WITH LAW

9

5 U.S.C. § 706

10

201. Plaintiffs repeat and incorporate by reference each allegation contained in the

11 preceding paragraphs as if fully set forth herein.

12

202. The APA prohibits agency action that is “in excess of statutory jurisdiction,

13 authority, or limitations, or short of statutory right” or “arbitrary, capricious, an abuse of

14 discretion, or otherwise not in accordance with law.”

15

203. Mr. McAleenan, who promulgated the Regulation, was serving in violation of

16 DHS’s organic statute and DHS’s regulations promulgated pursuant to that statute at the time of

17 the Regulation’s issuance. As a result, the Regulation is not in accordance with law and without

18 observance of procedure required by law under 5 U.S.C. § 706.

19

FOURTH CLAIM FOR RELIEF

20

ADMINISTRATIVE PROCEDURE ACT

21

THE CHALLENGED REGULATION IS ARBITRARY AND CAPRICIOUS OR

22

OTHERWISE NOT IN ACCORDANCE WITH LAW

23

5 U.S.C. § 706

24

204. Plaintiffs repeat and incorporate by reference each allegation contained in the

25 preceding paragraphs as if fully set forth herein.

26

205. The APA prohibits agency action that is “in excess of statutory jurisdiction,

27 authority, or limitations, or short of statutory right” or “arbitrary, capricious, an abuse of

28 discretion, or otherwise not in accordance with law.”

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1

206. Mr. Cuccinelli, who was the Acting Director of USCIS at the time the Regulation

2 was promulgated and, on information and belief, was involved in the Regulation’s promulgation,

3 was serving in violation of the FVRA. As a result, the Regulation is not in accordance with law

4 and without observance of procedure required by law under 5 U.S.C. § 706.

5

FIFTH CLAIM FOR RELIEF

6

FEDERAL VACANCIES REFORM ACT,

7

5 U.S.C. § 3345 ET SEQ.,

8

AND DHS ORGANIC STATUTE,

9

6 U.S.C § 113

10

207. Plaintiffs repeat and incorporate by reference each allegation contained in the

11 preceding paragraphs as if fully set forth herein.

12

208. The Federal Vacancies Reform Act is the exclusive means for filling offices whose

13 appointments are required to be made by the President with the advice and consent of the Senate

14 unless a statute provides otherwise. It also provides that any action taken by an improperly

15 appointed person has no force or effect.

16

209. The DHS Organic Statute authorizes the Secretary of DHS to promulgate an order

17 of succession other than that of the FVRA, notwithstanding the FVRA. See 6 U.S.C. § 113(g)(1)-

18 (2).

19

210. Since December 2016, DHS has adopted an order of succession different from the

20 one in the FVRA. DHS may not disregard its own regulations, including those governing the

21 order of succession. See generally United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260

22 (1954).

23

211. Mr. McAleenan was not eligible to be appointed Acting Secretary under 6 U.S.C.

24 § 113(g) and its implementing regulation.

25

212. Under the FVRA, Mr. McAleenan’s promulgating the Public Charge Regulation

26 constituted an action, see 5 U.S.C. § 3348(a)(1); see also id. § 551(13), and the performance of a

27 “function or duty,” id. § 3348(a)(2).

28

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1

213. As an invalid appointee, Mr. McAleenan’s actions have “no force or effect” and

2 “may not be ratified.” Id. § 3348(d).

3

SIXTH CLAIM FOR RELIEF

4

FEDERAL VACANCIES REFORM ACT,

5

5 U.S.C. § 3345 ET SEQ.,

6

214. Plaintiffs repeat and incorporate by reference each allegation contained in the

7 preceding paragraphs as if fully set forth herein.

8

215. The Federal Vacancies Reform Act is the exclusive means for filling offices whose

9 appointments are required to be made by the President with the advice and consent of the Senate

10 unless a statute provides otherwise. It also provides that any action taken by an improperly

11 appointed person has no force or effect.

12

216. Mr. Cuccinelli was not eligible to be appointed Acting Director of USCIS under 5

13 U.S.C. § 3345(a).

14

217. Under the FVRA, Mr. Cuccinelli’s involvement, on information and belief, in the

15 process of reviewing, finalizing, and promulgating the Public Charge Regulation constituted an

16 action, see 5 U.S.C. § 3348(a)(1); see also id. § 551(13), and the performance of a “function or

17 duty,” id. § 3348(a)(2).

18

218. As an invalid appointee, Mr. Cuccinelli’s actions have “no force or effect” and

19 “may not be ratified.” Id. § 3348(d).

20

SEVENTH CLAIM FOR RELIEF

21

FIFTH AMENDMENT (EQUAL PROTECTION)

22

THE REGULATION DISCRIMINATES AGAINST NON-WHITE IMMIGRANTS

23

219. Plaintiffs repeat and incorporate by reference each allegation contained in the

24 preceding paragraphs as if fully set forth herein.

25

220. The Fifth Amendment contains an implicit guarantee of equal protection that

26 invalidates any official action that reflects a racially discriminatory intent or purpose.

27 Classifications based on race, ethnicity, or national origin are subject to strict scrutiny, and even

28 facially neutral policies and practices will be held unconstitutional when they reflect a pattern

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1 unexplainable on grounds other than racial discrimination. Bolling v. Sharpe, 347 U.S. 497, 499

2 (1954); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977).

3

221. Defendants acted with improper discriminatory intent and bias against non-white

4 immigrants in promulgating the Regulation.

5

222. Multiple tweets, statements, speeches and other actions by President Trump and his

6 administration demonstrate racial animus toward non-white immigrants that underlie the

7 Regulation.

8

223. The Regulation is unconstitutional because its promulgation was motivated, at least

9 in part, because of, and not merely in spite of, its adverse effects on non-white immigrants. Pers.

10 Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).

11

224. Defendants promulgated the Regulation with full knowledge that it would have a

12 disproportionate impact on non-white immigrants’ ability to obtain green cards and extend non-

13 immigrant visas.

14

225. The history and sequence of events leading up to the promulgation of the

15 Regulation were irregular, indicate a predetermined outcome not based on an objective

16 assessment, and reveal that the Trump Administration’s animus for non-white immigrants drove

17 the decision to adopt the Regulation.

18

226. Plaintiffs will suffer irreparable injury resulting from the implementation of the

19 unconstitutional Regulation.

20

EIGHTH CLAIM FOR RELIEF

21

DECLARATORY JUDGMENT ACT

22 THE REGULATION IS INVALID BECAUSE IT WAS ISSUED BY AN UNLAWFULLY

23

APPOINTED AGENCY DIRECTOR

24

227. Plaintiffs will suffer irreparable injury resulting from the implementation of the

25 unconstitutional Regulation.

26

228. Plaintiffs repeat and incorporate by reference each allegation contained in the

27 preceding paragraphs as if fully set forth herein.

28

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1

229. The Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. provides that “in a case of

2 actual controversy within its jurisdiction . . . , any court of the United States, upon the filing of an

3 appropriate pleading, may declare the rights and other legal relations of any interested party

4 seeking such declaration, whether or not such further relief is or could be sought.” Id. § 2201(a).

5 The Court has equitable jurisdiction to enjoin “violations of federal law by federal officials,”

6 Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015); Free Enter. Fund v. Pub.

7 Co. Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010) (there is an “implied private right of

8 action directly under the Constitution to challenge governmental action under the Appointments

9 Clause”).

10

230. Mr. McAleenan and Mr. Cuccinelli were appointed in violation of the

11 Appointments Clause, the Federal Vacancies Reform Act, and DHS’s Organic Statute. Plaintiffs

12 are entitled to a declaration that the Regulation is invalid because both Mr. McAleenan’s

13 designation as Acting Secretary and Mr. Cuccinelli’s designation as acting head of USCIS

14 violated federal law and Mr. McAleenan promulgated the Regulation with, on information and

15 belief, Mr. Cuccinelli’s involvement.

16

PRAYER FOR RELIEF

17

WHEREFORE, Plaintiffs pray that this Court:

18

1. Vacate the Regulation as arbitrary, capricious, an abuse of discretion, otherwise not

19 in accordance with law, and without observance of procedure as required by law, in violation of

20 the Administrative Procedure Act and the United States Constitution;

21

2. Declare the Regulation unconstitutional as violating the equal protection guarantee

22 of the Fifth Amendment of the U.S. Constitution;

23

3. Declare that the Regulation has no force or effect under the Federal Vacancies

24 Reform Act and the Declaratory Judgment Act;

25

5. Enjoin the Department and all its officers, employees and agents from

26 implementing, applying, or enforcing the Regulation;

27

28

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1

6. Declare the appointments of Mr. McAleenan as Acting Secretary of DHS and

2 Defendant Cuccinelli as Acting Director of USCIS invalid under the Appointments Clause, the

3 DHS Organic Statute, and the Federal Vacancies Reform Act;

4

7. Award Plaintiffs their costs and reasonable attorney’s fees as appropriate; and

5

8. Grant such further and other relief as this Court deems just and proper.

6

7 8
Dated: May 20, 2020 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Respectfully submitted,
By: /s/ Nicholas Espíritu NICHOLAS ESPIRITU (SBN 237665) espiritu@nilc.org LINTON JOAQUIN (SBN 73547) joaquin@nilc.org ALVARO M. HUERTA (SBN 274787) huerta@nilc.org MAYRA B. JOACHIN (SBN 306065) joachin@nilc.org NATIONAL IMMIGRATION LAW CENTER 3450 Wilshire Boulevard, #108-62 Los Angeles, CA 90010 Telephone: (213) 639-3900 Fax: (213) 639-3911
ANTIONETTE DOZIER (SBN 244437) adozier@wclp.org ROBERT D. NEWMAN (SBN 86534) rnewman@wclp.org DAVID KANE (SBN 292186) dkane@wclp.org WESTERN CENTER ON LAW & POVERTY 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010 Tel: (213) 487-7211 Fax: (213) 487-0242
MARTHA JANE PERKINS (SBN 104784) perkins@healthlaw.org NATIONAL HEALTH LAW PROGRAM 200 N. Greensboro Street, Ste. D-13 Carrboro, NC 27510 Tel.: (919) 968-6308 Fax: (919) 968-8855

27

TANYA BRODER (SBN 136141)

broder@nilc.org

28

NATIONAL IMMIGRATION LAW CENTER

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1

2030 Addison Street, Suite 420

Berkeley, CA 94704

2

Telephone: (510) 663-8282

3

Fax: (213) 639-3911

4

JOANNA ELISE CUEVAS INGRAM** (SBN 290011)

cuevasingram@nilc.org

5

NATIONAL IMMIGRATION LAW CENTER

P.O. Box 170392

6

Brooklyn, NY 11217

7

Telephone: (213) 377-5258 Fax: (213) 377-5258

8 MAX S. WOLSON*

9

wolson@nilc.org

NATIONAL IMMIGRATION LAW CENTER

10

P.O. Box 34573

11

Washington, D.C. 20043 Telephone: (202) 216-0261

12

Fax: (202) 216-0266

13

KEVIN HERRERA*

herrera@nilc.org

14

NATIONAL IMMIGRATION LAW CENTER

15

P.O. Box 32358 Chicago, IL 60632-0358

16

Telephone: (213) 770-1325

Fax: (213) 770-1325

17

18

**Admitted to Practice in New York and California

19

Attorneys for Plaintiffs LA CLÍNICA DE LA RAZA;

CALIFORNIA PRIMARY CARE ASSOCIATION;

20

MATERNAL AND CHILD HEALTH ACCESS;

FARMWORKER JUSTICE; COUNCIL ON

21

AMERICAN ISLAMIC RELATIONS-CALIFORNIA;

AFRICAN COMMUNITIES TOGETHER; LEGAL

22

AID SOCIETY OF SAN MATEO COUNTY;

CENTRAL AMERICAN RESOURCE CENTER, and

23

KOREAN RESOURCE CENTER

24

25

26

27

28

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