Case 3:12-cv-03247-O Document 1 Filed 08/23/12 Page 1 of 25 PageID 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

CHRISTOPHER L. CRANE, DAVID A. )

ENGLE, ANASTASIA MARIE

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CARROLL, RICARDO DIAZ,

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LORENZO GARZA, FELIX

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LUCIANO, TRE REBSTOCK,

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FERNANDO SILVA, SAMUEL

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MARTIN, and JAMES D. DOEBLER )

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Plaintiffs,

)

)

v.

)

)

JANET NAPOLITANO, in her official )

capacity as Secretary of Homeland

)

Security, and JOHN MORTON, in his )

official capacity as Director of

)

Immigration and Customs Enforcement )

)

Defendants.

)

Civil Action No. 3:12-CV-_____
COMPLAINT

INTRODUCTION 1. Plaintiffs are law enforcement officers of United States Immigration and Customs Enforcement (“ICE”). 2. On June 15, 2012, Defendant Secretary of Homeland Security Janet Napolitano issued a Directive entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (hereinafter “the Directive”). The Directive, attached to this Complaint as Appendix A, instructs ICE officers to refrain from placing certain aliens who are unlawfully present in the United States (“illegal aliens”) into removal proceedings, and to take actions to facilitate the granting of deferred action to aliens who are unlawfully present in

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the United States. The Directive also directs DHS personnel to grant employment authorization to certain beneficiaries of the Directive.
3. The requirements that an unlawfully present alien must assert to be granted the privileges described in the Directive are that the alien:
• came to the United States under the age of sixteen; • has continuously resided in the United States for a least five years preceding June 15, 2012, and was present in the United States on June 15, 2012; • is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; • has not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and does not otherwise pose a threat to national security or public safety; and • is not above the age of thirty. 4. The Directive commands ICE officers to violate federal law, as detailed below, commands ICE officers to violate their oaths to uphold and support federal law, violates the Administrative Procedure Act, unconstitutionally usurps and encroaches upon the legislative powers of Congress, as defined in Article I of the United States Constitution, and violates the obligation of the executive branch to faithfully execute the law, as required by Article II, Section 3, of the United States Constitution. 5. Plaintiffs bring this civil action to seek injunctive relief preventing the implementation of this unlawful and unconstitutional Directive.
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6. This lawsuit seeks to prevent law enforcement officer Plaintiffs from being forced to either violate federal law if they comply with the unlawful Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary. This lawsuit also seeks to preserve the balance of legislative and executive powers established by the United States Constitution.
THE PARTIES Plaintiffs 7. Plaintiff Christopher L. Crane is an ICE Deportation Officer. He serves in Enforcement and Removal Operations at the Salt Lake City Field Office at 2975 Decker Lake Drive, Stop A, in West Valley City, Utah. He is also the President of the ICE Agents and Officers Union, AFGE Council #118. As an ICE Deportation Officer, Crane is authorized by law to, inter alia, arrest aliens for administrative immigration violations or for any criminal offense against the United States and execute administrative and criminal arrest warrants. 8. Plaintiff David A. Engle is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Dallas Field Office at 8101 N. Stemmons Freeway, in Dallas, Texas. As an ICE Immigration Enforcement Agent, Engle is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens. 9. Plaintiff Anastasia Marie Carroll is an ICE Immigration Enforcement Agent. She serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Carroll is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
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10. Plaintiff Ricardo Diaz is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Diaz is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
11. Plaintiff Lorenzo Garza is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Port Isabel Detention Center at 27791 Buena Vista Boulevard, in Los Fresnos, Texas. As an ICE Immigration Enforcement Agent, Garza is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
12. Plaintiff Felix Luciano is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the San Diego Field Office at 880 Front Street, Suite B2232, in San Diego, California. As an ICE Immigration Enforcement Agent, Luciano is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
13. Plaintiff Tre Rebstock is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Houston Field Office at 7405 C-1 Highway 75 South, in Huntsville, Texas. As an ICE Immigration Enforcement Agent, Rebstock is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
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14. Plaintiff Fernando Silva is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Silva is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and issue administrative arrest warrants for aliens.
15. Plaintiff Samuel Martin is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations in the El Paso Field Office at 8915 Montana Avenue, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Martin is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
16. Plaintiff James D. Doebler is an ICE Deportation Officer. He serves in Enforcement and Removal Operations in the Dover Sub-Office at 1305 McD Drive, in Dover, Delaware. As an ICE Deportation Officer, Doebler is authorized by law to, inter alia, arrest aliens for administrative immigration violations or for any criminal offense against the United States and execute administrative and criminal arrest warrants.
17. Each plaintiff is authorized to execute the laws of the United States pursuant to statutory authority and delegated authority under regulations of the Department of Homeland Security.
Defendants 18. Defendant Janet Napolitano is the Secretary of Homeland Security and the head of the United States Department of Homeland Security (“DHS”) and in her official capacity is responsible for the enforcement of federal immigration laws, 6 U.S.C. § 112, 8 U.S.C. § 1101, et seq., pursuant to 8 U.S.C. § 1103(a)(2).
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19. Defendant John Morton is the Director of United States Immigration and Customs Enforcement (ICE) and in his official capacity is responsible for administering all operations of the ICE. Defendant Morton is not authorized to promulgate regulations implementing the Immigration and Nationality Act.
20. Defendant Napolitano issued the Directive on June 15, 2012, and is the executive branch official responsible for its implementation by and through her inferior officers and other employees of DHS. Defendant Napolitano is the official authorized to promulgate regulations implementing the Immigration and Nationality Act in the Department of Homeland Security.
JURISDICTION AND VENUE 21. This Court has jurisdiction pursuant to 28 U. S.C. § 1331 over Plaintiffs’ claims under the Constitution and laws of the United States. This Court is authorized to grant Plaintiffs’ requests for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. 22. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e) because the majority of the Plaintiffs named in this complaint reside and work in the State of Texas. Plaintiff Engle resides and works in the Northern District of Texas.
THE DIRECTIVE AND RELATED EVENTS 23. On June 17, 2011, Defendant Morton issued a Memorandum entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (the “Morton Memorandum”). 24. On June 15, 2012, Defendant Napolitano issued the Directive. 25. In July 2012, DHS issued the “ERO Supplemental Guidance: Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as
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Children” which directs Plaintiffs and other DHS personnel to implement the terms of the Directive.
26. In early August 2012, DHS issued a document of more than 90 pages explaining how applicants for the benefits of the Directive would be processed by DHS, entitled “National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (DACA) (Form I-821D and Form I-765).”
27. On August 15, 2012, DHS began full implementation of the Directive, including receiving applications and distributing the benefits of deferred action and employment authorization.
28. The orders in the field that have been given to Plaintiffs by their supervisors are that an alien only needs to claim that he is covered by the Directive in order to be released and offered the benefits of the Directive. ICE agents are prohibited from demanding that an alien provide proof that he meets the Directive’s criteria.
29. On August 16, 2012, the Department of Homeland Security published a Federal Register Notice soliciting public comments on the Directive. The Notice offered for review and comment no actual rules that will be promulgated. Instead, it only solicited comments on the questions to be posed on the form that DHS has developed to accept applications for benefits under the Directive. DHS categorized the notice as an “information collection” exercise.
30. According to official estimates provided on August 16, 2012, by the U.S. Citizenship and Immigration Service, pursuant to the Paperwork Reduction Act, the number of aliens unlawfully present in the United States who qualify for the benefits offered by the Directive is estimated to be 1.76 million. Source: U.S. Citizenship and Immigration Services, Agency Information Collection Activities: Consideration of Deferred Action for Childhood
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Arrivals, Form I–821D, New Information Collection; Emergency Submission to the Office of Management and Budget; Comment Request, 77 Fed. Reg. 49451 (Aug. 16, 2012) (1,041,300 estimated total number of responses for new Consideration of Deferred Action for Childhood Arrivals, Form I-821D, USCIS); U.S. Citizenship and Immigration Services, Agency Information Collection Activities: Application for Employment Authorization, Form I–765, Revision of a Currently Approved Information Collection; Emergency Submission to the Office of Management and Budget; Comment Request, 77 Fed. Reg. 49453 (Aug. 16, 2012) (estimated 1,761,300 responses related to Application for Employment Authorization Document, Form I– 765, USCIS; 1,385,292 responses related to Biometrics; 1,047,357 responses related to Application for Employment Authorization Document Worksheet, Form I–765WS, USCIS; and 1,761,300 responses to required Passport-Style Photographs).
31. According to the Department of Homeland Security, the number of aliens unlawfully present in the United States is estimated to be 11.5 million. Michael Hoefer, Nancy Rytina, and Bryan Baker, “Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2011” (March 2012), available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf
FEDERAL STATUTORY BACKGROUND 32. In 1996, Congress sought to significantly reduce executive discretion in the enforcement of federal immigration laws: “[I]mmigration law enforcement is as high a priority as other aspects of Federal law enforcement, and illegal aliens do not have the right to remain in the United States undetected and unapprehended.” H.R. Rep. 104-725 (1996), at 383.
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33. Enacted in 1996, 8 U.S.C. § 1225(a)(1) provides that “an alien present in the United States who has not been admitted … shall be deemed for purposes of this chapter an applicant for admission.”
34. 8 U.S.C. § 1225(a)(3) provides that all applicants for admission “shall be inspected by immigration officers.”
35. 8 U.S.C. § 1225(b)(2)(A) mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” (emphasis added).
36. Deferred action is not specifically authorized anywhere in federal law. Historically, deferred action has been utilized sparsely for small numbers of aliens in discrete distress pending statutory or foreign policy-mandated regulatory changes. No group of aliens has been granted deferred action in the past 15 years that approaches a fraction of the size of the class of aliens subject to the Directive.
37. Regulations describe deferred action only in the application sense as authorizing employment upon application in 8 C.F.R. § 274a.12(c)(14), or application for social security benefits, 8 C.F.R. § 1.3(a)(4)(vi). Accordingly, “deferred action” is a substantive government benefit.
38. Federal regulations do not authorize the Secretary to grant deferred action wholesale to a large number of illegal aliens.
39. Eligibility for a substantive benefit may not be conferred as a matter of discretion, but only by regulations promulgated under authority delegated by Congress, consistent with the terms of the law authorizing the regulations.
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40. By definition, “prosecutorial discretion” cannot be used to confer a substantive benefit.
HARM 41. Plaintiffs have each sworn an oath to support and defend the Constitution of the United States and the laws of the United States. 42. Plaintiffs believe that if they follow the Directive, they will be violating their oath of office, as well as violating several laws of the United States. 43. Plaintiffs reasonably fear, based upon official communications to them, their knowledge of communications to Plaintiff Doebler, Plaintiff Martin, and Plaintiff Crane from their superiors, past events, and public sources, that if they follow the requirements of federal law, contrary to the “Directive,” and arrest an alien or issue an alien an Notice to Appear (NTA) in removal proceedings, they will be disciplined or suffer other adverse employment consequences. 44. Plaintiff James D. Doebler arrested an alien who was unlawfully present in the United States and issued the alien an NTA, contrary to the general directions of his supervisors that he should decline to issue NTAs to certain illegal aliens. Plaintiff Doebler was issued a Notice of Proposed Suspension. Plaintiff Doebler is facing a three-day suspension for arresting and processing the alien for a hearing rather than exercising the “prosecutorial discretion” commanded by his supervisors. Plaintiff Doebler requested a written directive ordering him not to issue the NTA. His supervisors have refused to give him a written directive and would not sign any paperwork authorizing the use of “prosecutorial discretion.” 45. Plaintiff Doebler reasonably fears, based on his past experience, that if he follows the requirements of federal law, contrary to the “Directive,” and arrests an alien or issues the
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alien an NTA, he will be disciplined again. He reasonably fears that a second disciplinary action will result in the loss of his job.
46. On July 17, 2012, Plaintiff Samuel Martin, along with another immigration enforcement agent, picked up an illegal alien from the El Paso County Jail. While the agents were trying to place the alien in the vehicle, the alien attempted to escape, and resisted and assaulted Plaintiff Martin and his colleague. The agents regained custody of the alien and transported him to the El Paso Criminal Alien Program office for processing. Plaintiff Martin’s supervisors ordered him to release the alien without any charges being filed against the alien and ordered Plaintiff Martin not to issue an NTA. The agents who were present protested the release of the alien; but they were told “it was a management decision, based on the President’s new immigration policies.” No supervisor ever asked the agents if they were injured or if they needed assistance. It is the understanding of Plaintiff Martin, reflected in his signed statement concerning the incident, that his supervisors gave him these orders based on the Directive.
47. On January 25, 2012, Plaintiff Christopher L. Crane, in his capacity as President of the ICE Agents and Officers Union, filed a Demand to Bargain with Defendants, expressing significant concerns with the Morton Memorandum, including that the actions that ICE agents would have to take or not take under it were contrary to federal law. The Demand to Bargain included the proposal that: “No employee will be subject to disciplinary or adverse action for refusing to obey an unlawful order.”
48. On April 5, 2012, Plaintiff Christopher L. Crane, in his capacity as President of the ICE Agents and Officers Union, submitted Additional Proposals, reiterating that officers should not be subject to discipline or adverse action for refusing to obey an unlawful order. Plaintiff Crane also filed an Information Request at that time.
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49. On August 20, 2012, nearly eight months after the January 25, 2012, Demand to Bargain, Defendant Morton sent a letter to the ICE Agents and Officers Union merely indicating that Defendant Morton “may” formally respond to the January 25, 2012, Demand to Bargain and the April 5, 2012, Additional Proposals at an unspecified time in the future. In the past, when confronted with a Demand to Bargain letter, Defendants have ultimately refused to bargain at all and have refused to make any changes to their policies.
50. As of the filing of this complaint, Defendants have not changed ICE policies in any way in response to Plaintiff Crane’s January 25, 2012, Demand to Bargain and April 5, 2012, Additional Proposals.
51. Plaintiffs reasonably expect that the filing of a similar Demand to Bargain in order to protest the Directive would be treated in a similarly non-responsive manner, and that it would not result in any response or alteration of the Directive policy.
52. Because Plaintiffs are now being ordered to implement the Directive, they have an immediate and urgent need for relief. They are being ordered to violate federal law and are facing discipline or adverse employment action if they follow federal law.
53. Defendants are obligated, under the terms of their signed agreement with the ICE Agents and Officers Union, to issue an “Article 9A Notice of Proposed Change” prior to the alteration of agency policies. The purpose of such a Notice is to allow ICE agents and officers to provide input regarding proposed agency policies. No such Notice was issued prior to the June 15, 2012, Directive or its August 15, 2012, implementation date.
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FIRST CAUSE OF ACTION THE DIRECTIVE EXPRESSLY VIOLATES FEDERAL STATUTES
REQUIRING THE INITIATION OF REMOVALS 54. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein. 55. 8 U.S.C. § 1225(a)(1) requires that “an alien present in the United States who has not been admitted … shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers 8 U.S.C. § 1225(a)(3), which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers 8 U.S.C. § 1225(b)(2)(A), which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” The proceedings under 8 U.S.C. § 1229a are removal proceedings in United States immigration courts. 56. The Directive orders Plaintiffs to violate the above-listed provisions of federal law by declining to place certain aliens into removal proceedings, when federal law clearly requires Plaintiffs to place such aliens into removal proceedings. 57. The Morton Memorandum, as implemented by Defendants, asserts “prosecutorial discretion… [not] to issue, reissue, serve, file, or cancel a Notice to Appear (NTA),” in direct contradiction of 8 U.S.C. § 1225(b)(2)(A) in cases in which that statute applies. 58. Because Congress has expressly limited the discretion of Defendants to not initiate removal proceedings, any “prosecutorial discretion” that Defendants exercise must be consistent with 8 U.S.C. § 1225 and can only occur after an alien has been placed into removal proceedings as required by 8 U.S.C. § 1225, or under a provision of federal law expressly authorizing such “prosecutorial discretion.”
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59. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to violate the requirements of federal law expressed in 8 U.S.C. § 1225.
60. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
SECOND CAUSE OF ACTION THE DIRECTIVE VIOLATES FEDERAL LAW BY CONFERRING A NON-STATUTORY FORM OF BENEFIT, DEFERRED ACTION, TO MORE THAN 1.7 MILLION ALIENS, RATHER THAN A FORM OF RELIEF OR BENEFIT THAT FEDERAL LAW PERMITS ON SUCH A
LARGE SCALE 61. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein. 62. “Deferred action” is a benefit that is not authorized in federal statute and is only authorized to a limited extent and for limited purposes in federal regulations. 63. No federal regulation authorizes the granting of the benefit of deferred action to aliens who are in the position of the more than 1.7 million beneficiaries of the Directive. 64. No federal regulation authorizes the conferral of the benefit of deferred action to an entire category of unlawfully present aliens numbering in excess of 1.7 million persons. 65. If an executive agency’s practice contradicts the express terms of federal law, that practice is ultra vires and unlawful. 66. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to violate the requirements of federal law expressed in 8 U.S.C. § 1225. 67. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
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THIRD CAUSE OF ACTION THE DIRECTIVE VIOLATES FEDERAL LAW BY CONFERRING THE LEGAL BENEFIT OF EMPLOYMENT AUTHORIZATION WITHOUT
ANY STATUTORY BASIS AND UNDER THE FALSE PRETENSE OF “PROSECUTORIAL DISCRETION”
68. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein.
69. The Directive purports to use “prosecutorial discretion” to grant the benefit of employment authorization to unlawfully present aliens.
70. Employment authorization is a benefit under federal regulations that is “granted” to beneficiary aliens. 8 C.F.R. § 274a.12(c)(14).
71. Federal law specifies the circumstances under which aliens may be granted the benefit of employment authorization.
72. The Morton Memorandum on pp. 2-3 lists twelve ways in which “prosecutorial discretion” may purportedly be exercised in immigration law, but nowhere mentions the conferral of the benefit of employment authorization.
73. “Prosecutorial discretion,” insofar as it is permitted by federal immigration law, is by definition the exercise of discretion not to remove; it is not the conferral of a benefit.
74. To the limited extent that any “prosecutorial discretion” is permitted by federal immigration law, such discretion allows ICE to seek the cancellation or withholding of a removal. The exercise of “prosecutorial discretion” does not permit any DHS employee or officer to grant unlawfully present aliens the benefit of employment authorization in the manner attempted by the Directive.
75. U.S. Citizenship and Immigration Services is not a law enforcement agency. 76. A non-law-enforcement agency cannot exercise prosecutorial discretion.
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77. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to confer a substantive benefit on aliens that is not authorized by federal law.
78. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
FOURTH CAUSE OF ACTION THE DIRECTIVE VIOLATES THE CONSTITUTIONAL ALLOCATION
OF LEGISLATIVE POWER TO CONGRESS 79. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein. 80. Article I, section 1, of the United States Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” 81. The Development, Relief, and Education for Alien Minors Act (DREAM Act), in various forms, has been proposed in Congress at least 24 times. It was introduced in the following bills: S. 1291, 107th Cong. §§ 2, 3 (2001); S. 1545, 108th Cong. (2003); S. 2863, 108th Cong. §§ 1801-1813 (2004); S. 2075, 109th Cong. (2005); H.R. 5131, 109th Cong. (2006); S. 2611, 109th Cong. §§ 621–632 (2006); H.R. 1275, 110th Cong. (2007); H.R. 1645, 110th Cong. §§ 621-632 (2007); S. 774, 110th Cong. (2007); S. 1348, 110th Cong. §§ 621–632 (2007) (as amended by S.A. 1150 §§ 612–619); S. 1639, 110th Cong. §§ 612-620 (2007); S. 2205, 110th Cong. (2007); H.R. 1751, 111th Cong. (2009); S. 729, 111th Cong. (2009); H.R. 5281, 111th Cong. §§ 5-16 (2010); H.R. 6497, 111th Cong. (2010); S. 3827, 111th Cong. (2010); S. 3932, 111th Cong. §§ 531-542 (2010); S. 3962, 111th Cong. (2010); S. 3963, 111th Cong.
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(2010); S. 3992, 111th Cong. (2010); H.R. 1842, 112th Cong. (2011); S. 952, 112th Cong. (2011); S. 1258, 112th Cong. §§ 141-149 (2011); H.R. 5869, 112th Cong. (2012).
82. The principal provisions of the DREAM Act, as reiterated in the two dozen DREAM Act bills introduced in Congress, are that it establishes a class of unlawfully present aliens who may apply for cancellation of removal and either temporary or conditional lawful residence, and then may adjust to lawful permanent resident status or have the conditions removed. The class is generally defined as those aliens who arrived in the United States as minors, have been physically present in the United States for a period of years (typically five years) prior to enactment, have not been convicted of a felony or two or more misdemeanors and do not pose a threat to national security or public safety, have earned a high school diploma or a general education development certificate in the United States, and are below a certain age (typically early to mid-thirties) on the date of enactment. Qualifying aliens whose removal is cancelled and who are granted temporary or conditional residence then must be admitted to, or earn a certain number of credits in, an institution of higher education or serve honorably in the U.S. Armed Forces for a certain period in order to adjust to lawful permanent resident status or have the conditions on their status removed.
83. The DREAM Act has never been passed by both houses of Congress and signed into law by the President.
84. The fact that the DREAM Act has been proposed in Congress two dozen times, and has been voted on by the United States House of Representatives and by the United States Senate, indicates Congress’s understanding that federal legislation is required in order to achieve these objectives.
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85. The Directive attempts to confer continued presence in the United States, as well as employment authorization, to all aliens meeting the criteria specified in the Directive.
86. The unlawfully present aliens who are given benefits by the Directive are substantially the same aliens that would have been given benefits by the DREAM Act, had it passed both Houses of Congress and been signed into law by the President.
87. The conferral of legal rights and privileges to a large class of persons meeting certain criteria is a legislative act.
88. The application of “deferred action” to approximately 15% of aliens who are in the United States without authorization is not an exercise of executive branch discretion permitted by the Constitutioin. The application of “deferred action” to approximately 15% of aliens who are in the United States without authorization is a legislative act of amnesty, the granting of a legislative benefit, or an act otherwise exceeding the Secretary’s authority as a principal officer under the Constitution by usurping legislative authority.
89. Because the Directive is a legislative act that Defendants have implemented through executive action, it is in violation of Article I, section 1, of the United States Constitution.
90. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to exercise legislative powers through the issuance of directives.
91. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
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FIFTH CAUSE OF ACTION THE DIRECTIVE VIOLATES THE ARTICLE II, SECTION 3, CONSTITUTIONAL OBLIGATION OF THE EXECUTIVE TO TAKE
CARE THAT THE LAWS ARE FAITHFULLY EXECUTED 92. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein. 93. Article II, section 3, of the United States Constitution requires that the President, by and through his executive branch officials, including Defendants, “shall take Care that the Laws be faithfully executed.” 94. The application of “deferred action” to approximately 15% of aliens who are in the United States without authorization is not consistent with the executive’s duty to take care that the laws be faithfully executed. In effect, the Directive orders that the law shall not be executed against a class of more than 1.7 million aliens. 95. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to decline to enforce federal immigration laws against a class of more than 1.7 million aliens. 96. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
SIXTH CAUSE OF ACTION THE DIRECTIVE VIOLATES THE ADMINISTRATIVE PROCEDURE
ACT THROUGH CONFERRAL OF A BENEFIT WITHOUT REGULATORY IMPLEMENTATION
97. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein.
98. The Administrative Procedure Act requires that agencies implementing Congressional statutes in whole or in part through an agency statement of general applicability
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and future effect designed to implement, interpret, or prescribe law or policy do so through a rulemaking. A rulemaking under the Administrative Procedure Act is defined as the agency process for formulating, amending, or repealing a rule through notice and comment procedures under the Administrative Procedure Act, 5 U.S.C. § 553. The Immigration and Nationality Act delegates authority to the Secretary of Homeland Security and the Attorney General to implement its provisions through regulations. The Secretary has not promulgated any regulation that establishes the criteria for eligibility for relief from removal from the United States or the granting of employment authorization. The Directive identifies a large class of individuals by specific eligibility criteria against whom the immigration laws of the United States requiring their removal shall not be executed and who are made eligible for specific benefits.
99. Establishing a class of eligibility by criteria for exception from removal from the United States and affirmative eligibility for benefits is quintessentially a “rule” under the Administrative Procedure Act, 5 U.S.C. § 551(4). The Secretary has not issued a notice of proposed rulemaking or promulgated a final rule in conformity with the Administrative Procedure Act. The Directive is not a rule under the Administrative Procedure Act.
100. The Directive is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, and without observance of procedure required by the Administrative Procedure Act.
101. Defendant Napolitano’s issuance of a Federal Register Notice on August 16, 2012, as part of a so-called “information collection” exercise in no way satisfies the publication and comment requirements for rulemaking under the Administrative Procedure Act.
102. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to circumvent the terms of
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the Administrative Procedure Act by simply issuing “directives” or “orders” that confer substantive legal benefits and privileges, and significantly transform the enforcement of federal immigration law.
103. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that the Court:
A. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(B) that the Directive is unlawful and in violation of Article I of the Constitution of the United States as a usurpation of legislative authority and vacate the Directive;
B. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(B) that the Directive is unlawful and in violation of Article II of the Constitution of the United States as in excess of executive authority and vacate the Directive;
C. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(B) that the Directive and relevant provisions of the Morton Memorandum are unlawful and in violation of 8 U.S.C. § 1225(b)(2)(A) and vacate the Directive and relevant provisions of the Morton Memorandum.
D. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(C) that the Directive is unlawful and in violation of the Immigration and Nationality Act as in excess of delegated authority and vacate the Directive;
E. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(D) that the Directive is unlawful and in violation of the Administrative Procedure Act as a
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rule promulgated without conforming to the procedure described therein and vacate the Directive;
F. Temporarily restrain, preliminarily enjoin, and permanently enjoin Defendants and their subordinate officers, employees, and agents from implementing or enforcing the Directive, or taking any adverse action against plaintiffs pursuant to the Directive or for not following the Directive;
G. Direct Defendants to pay all costs associated with this lawsuit; and H. Grant such other and further relief as this Court deems equitable, just, and proper.

Dated: August 23, 2012

By: s/ Kris W. Kobach
KRIS W. KOBACH Kansas Bar No. 17280 (pro hac vice applic. forthcoming) Kobach Law, LLC 4701 N. 130th St. Kansas City, Kansas 66109 Telephone: 913-638-5567 kkobach@gmail.com
P. MICHAEL JUNG Texas Bar No. 11054600 Strasburger & Price, LLP 901 Main Street, Suite 4400 Dallas, Texas 75202 Telephone: 214-651-4300 michael.jung@strasburger.com
Attorneys for Plaintiffs

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Case 3:12-cv-03247-O Document 1 Filed 08/23/12 Page 23 of 25 PageID 23

15.201

Alejandro Director. U

FROM:

John Morton Director, U.S. Immigration and Customs Enforcement

IJI' ~~ Janet Napolitano I ;I-
Secretary of Home ~ecurrt'/

~

Proseeutorial Discretion with Respect to Individuals nited States as Children

By this

I am

forth how, in the exercise of our prosecutorial discretion, the

Department Homeland Security (OHS)

the Nation's immigration laws against

certain young

were brought to this

as children and know only this country as

home. a general

these individuals lacked the intent to violate the law and our ongoing

review of pending removal cases IS already offering administrative closure to many of them.

However, additional measures are necessary to ensure that our enforcement resources are not

expended on these low

cases but are instead appropriately focused on people who meet

our enforcement

The following criteria should be satisfied before an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum:

misdemeanor and lit is not above

a

offense, a significant misdemeanor offense, multiple

or otherwise poses a threat to national security or public

of thirty.

EXHIBIT
IA

Case 3:12-cv-03247-O Document 1 Filed 08/23/12 Page 24 of 25 PageID 24
Our Nation' s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here.
As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.
1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS):
• With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
• USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear.
2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria:
• ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal, in order to prevent low priority individuals from being removed from the United States.
• ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process.
• ICE is directed to begin implementing this process within 60 days of the date of this memorandum.
• ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.
3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check:
• USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the
2 


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above criteria and are at least 15 years old, for a period of two years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States. • The USCIS process shall also be available to individuals subject to a final order of removal regardless of their age. • USCIS is directed to begin implementing this process within 60 days of the date of this memorandum. For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action. This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.
~jJz~
3 


 
 Case 3:12-cv-03247-O Document 15 Filed 10/10/12 Page 1 of 25 PageID 70

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

CHRISTOPHER L. CRANE, DAVID A. )

ENGLE, ANASTASIA MARIE

)

CARROLL, RICARDO DIAZ,

)

LORENZO GARZA, FELIX

)

LUCIANO, TRE REBSTOCK,

)

FERNANDO SILVA, SAMUEL

)

MARTIN, JAMES D. DOEBLER, and )

THE STATE OF MISSISSIPPI, by and )

through GOVERNOR PHIL BRYANT )

)

Plaintiffs,

)

)

v.

)

)

JANET NAPOLITANO, in her official )

capacity as Secretary of Homeland

)

Security, JOHN MORTON, in his

)

official capacity as Director of

)

Immigration and Customs Enforcement, )

and ALEJANDRO MAYORKAS, in his )

official capacity as Director of United )

States Citizenship and Immigration

)

Services

)

)

Defendants.

)

Civil Action No. 3:12-cv-03247-O AMENDED COMPLAINT

INTRODUCTION 1. Plaintiffs are law enforcement officers of United States Immigration and Customs Enforcement (“ICE”), as well as the State of Mississippi by and through Governor Phil Bryant, pursuant to Miss. Code Ann. §§ 7-1-5(n) and 7-1-33. 2. On June 15, 2012, Defendant Secretary of Homeland Security Janet Napolitano issued a Directive entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (hereinafter “the Directive”). The Directive, attached to

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this Complaint as Appendix A, instructs ICE officers to refrain from placing certain aliens who are unlawfully present in the United States (“illegal aliens”) into removal proceedings, and to take actions to facilitate the granting of deferred action to aliens who are unlawfully present in the United States. The Directive also directs DHS personnel to grant employment authorization to certain beneficiaries of the Directive.
3. The requirements that an unlawfully present alien must assert to be granted the privileges described in the Directive are that the alien:
• came to the United States under the age of sixteen; • has continuously resided in the United States for a least five years preceding June 15, 2012, and was present in the United States on June 15, 2012; • is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; • has not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and does not otherwise pose a threat to national security or public safety; and • is not above the age of thirty. 4. The Directive commands ICE officers to violate federal law, as detailed below, commands ICE officers to violate their oaths to uphold and support federal law, violates the Administrative Procedure Act, unconstitutionally usurps and encroaches upon the legislative powers of Congress, as defined in Article I of the United States Constitution, and violates the obligation of the executive branch to faithfully execute the law, as required by Article II, Section 3, of the United States Constitution.
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5. Plaintiffs bring this civil action to seek injunctive relief preventing the implementation of this unlawful and unconstitutional Directive.
6. This lawsuit seeks to prevent law enforcement officer Plaintiffs from being forced to either violate federal law if they comply with the unlawful Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary.
7. This lawsuit also seeks to protect the State of Mississippi from the fiscal burden imposed upon the State by illegal aliens who would otherwise be placed in removal proceedings and removed from the United States, but for the implementation of the unlawful Directive.
8. This lawsuit also seeks to preserve the balance of legislative and executive powers established by the United States Constitution.
THE PARTIES Plaintiffs 9. Plaintiff Christopher L. Crane is an ICE Deportation Officer. He serves in Enforcement and Removal Operations at the Salt Lake City Field Office at 2975 Decker Lake Drive, Stop A, in West Valley City, Utah. He is also the President of the ICE Agents and Officers Union, AFGE Council #118. As an ICE Deportation Officer, Crane is authorized by law to, inter alia, arrest aliens for administrative immigration violations or for any criminal offense against the United States and execute administrative and criminal arrest warrants. 10. Plaintiff David A. Engle is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Dallas Field Office at 8101 N. Stemmons Freeway, in Dallas, Texas. As an ICE Immigration Enforcement Agent, Engle is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
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11. Plaintiff Anastasia Marie Carroll is an ICE Immigration Enforcement Agent. She serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Carroll is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
12. Plaintiff Ricardo Diaz is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Diaz is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
13. Plaintiff Lorenzo Garza is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Port Isabel Detention Center at 27791 Buena Vista Boulevard, in Los Fresnos, Texas. As an ICE Immigration Enforcement Agent, Garza is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
14. Plaintiff Felix Luciano is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the San Diego Field Office at 880 Front Street, Suite B2232, in San Diego, California. As an ICE Immigration Enforcement Agent, Luciano is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
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15. Plaintiff Tre Rebstock is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Houston Field Office at 7405 C-1 Highway 75 South, in Huntsville, Texas. As an ICE Immigration Enforcement Agent, Rebstock is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
16. Plaintiff Fernando Silva is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Silva is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and issue administrative arrest warrants for aliens.
17. Plaintiff Samuel Martin is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations in the El Paso Field Office at 8915 Montana Avenue, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Martin is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
18. Plaintiff James D. Doebler is an ICE Deportation Officer. He serves in Enforcement and Removal Operations in the Dover Sub-Office at 1305 McD Drive, in Dover, Delaware. As an ICE Deportation Officer, Doebler is authorized by law to, inter alia, arrest aliens for administrative immigration violations or for any criminal offense against the United States and execute administrative and criminal arrest warrants.
19. Each ICE plaintiff is authorized to execute the laws of the United States pursuant to statutory authority and delegated authority under regulations of the Department of Homeland Security.
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20. Illegal immigration imposes a wide variety of significant fiscal costs on Plaintiff the State of Mississippi and its taxpayers, including but not limited to: costs associated with educating illegal aliens in the State’s K-12 school system; costs related to uncompensated healthcare provided by state agencies, hospitals, and clinics; law enforcement costs associated with arresting, prosecuting, and incarcerating illegal aliens in the State’s criminal justice system; and lost tax revenues and economic losses related to illegal aliens who work “off the books” and thereby avoid paying state taxes and/or who send “remittances” to relatives in foreign countries, diverting dollars that otherwise would remain in the State’s economy and generate additional state tax revenues.
21. Governor Phil Bryant brings this suit on behalf of the State of Mississippi pursuant to Miss. Code Ann. §§ 7-1-5(n) and 7-1-33.
Defendants 22. Defendant Janet Napolitano is the Secretary of Homeland Security and the head of the United States Department of Homeland Security (“DHS”) and in her official capacity is responsible for the enforcement of federal immigration laws, 6 U.S.C. § 112, 8 U.S.C. § 1101, et seq., pursuant to 8 U.S.C. § 1103(a)(2). 23. Defendant John Morton is the Director of United States Immigration and Customs Enforcement (ICE) and in his official capacity is responsible for administering all operations of ICE. Defendant Morton is not authorized to promulgate regulations implementing the Immigration and Nationality Act. 24. Defendant Alejandro Mayorkas is the Director of United States Citizenship and Immigration Services (USCIS) and in his official capacity is responsible for administering all
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operations of USCIS. Defendant Mayorkas is not authorized to promulgate regulations implementing the Immigration and Nationality Act.
25. Defendant Napolitano issued the Directive on June 15, 2012, and is the executive branch official responsible for its implementation by and through her inferior officers and other employees of DHS. Defendant Napolitano is the official authorized to promulgate regulations implementing the Immigration and Nationality Act in the Department of Homeland Security.
JURISDICTION AND VENUE 26. This Court has jurisdiction pursuant to 28 U. S.C. § 1331 over Plaintiffs’ claims under the Constitution and laws of the United States. This Court is authorized to grant Plaintiffs’ requests for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. 27. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e) because the majority of the Plaintiffs named in this complaint reside and work in the State of Texas. Plaintiff Engle resides and works in the Northern District of Texas.
THE DIRECTIVE AND RELATED EVENTS 28. On June 17, 2011, Defendant Morton issued a Memorandum entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (the “Morton Memorandum”). 29. On June 15, 2012, Defendant Napolitano issued the Directive. 30. In July 2012, DHS issued the “ERO Supplemental Guidance: Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children” which directs Plaintiffs and other DHS personnel to implement the terms of the Directive.
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31. In early August 2012, DHS issued a document of more than 90 pages explaining how applicants for the benefits of the Directive would be processed by DHS, entitled “National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (DACA) (Form I-821D and Form I-765).”
32. On August 15, 2012, DHS began full implementation of the Directive, including receiving applications and distributing the benefits of deferred action and employment authorization.
33. The orders in the field that have been given to Plaintiffs by their supervisors are that an alien only needs to claim that he is covered by the Directive in order to be released and offered the benefits of the Directive. ICE agents are prohibited from demanding that an alien provide proof that he meets the Directive’s criteria.
34. On August 16, 2012, DHS published a Federal Register Notice soliciting public comments on the Directive. The Notice offered for review and comment no actual rules that will be promulgated. Instead, it only solicited comments on the questions to be posed on the form that DHS has developed to accept applications for benefits under the Directive. DHS categorized the notice as an “information collection” exercise.
35. According to official estimates provided on August 16, 2012, by the U.S. Citizenship and Immigration Service, pursuant to the Paperwork Reduction Act, the number of aliens unlawfully present in the United States who qualify for the benefits offered by the Directive is estimated to be 1.76 million. Source: U.S. Citizenship and Immigration Services, Agency Information Collection Activities: Consideration of Deferred Action for Childhood Arrivals, Form I–821D, New Information Collection; Emergency Submission to the Office of Management and Budget; Comment Request, 77 Fed. Reg. 49451 (Aug. 16, 2012) (1,041,300
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estimated total number of responses for new Consideration of Deferred Action for Childhood Arrivals, Form I-821D, USCIS); U.S. Citizenship and Immigration Services, Agency Information Collection Activities: Application for Employment Authorization, Form I–765, Revision of a Currently Approved Information Collection; Emergency Submission to the Office of Management and Budget; Comment Request, 77 Fed. Reg. 49453 (Aug. 16, 2012) (estimated 1,761,300 responses related to Application for Employment Authorization Document, Form I– 765, USCIS; 1,385,292 responses related to Biometrics; 1,047,357 responses related to Application for Employment Authorization Document Worksheet, Form I–765WS, USCIS; and 1,761,300 responses to required Passport-Style Photographs).
36. According to DHS, the number of aliens unlawfully present in the United States is estimated to be 11.5 million. Michael Hoefer, Nancy Rytina, and Bryan Baker, “Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2011” (March 2012), available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf.
FEDERAL STATUTORY BACKGROUND 37. In 1996, Congress sought to significantly reduce executive discretion in the enforcement of federal immigration laws: “[I]mmigration law enforcement is as high a priority as other aspects of Federal law enforcement, and illegal aliens do not have the right to remain in the United States undetected and unapprehended.” H.R. Rep. 104-725 (1996), at 383. 38. Enacted in 1996, 8 U.S.C. § 1225(a)(1) provides that “an alien present in the United States who has not been admitted … shall be deemed for purposes of this chapter an applicant for admission.” 39. 8 U.S.C. § 1225(a)(3) provides that all applicants for admission “shall be inspected by immigration officers.”
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40. 8 U.S.C. § 1225(b)(2)(A) mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” (emphasis added).
41. Deferred action is not specifically authorized anywhere in federal law. Historically, deferred action has been utilized sparsely for small numbers of aliens in discrete distress pending statutory or foreign policy-mandated regulatory changes. No group of aliens has been granted deferred action in the past 15 years that approaches a fraction of the size of the class of aliens subject to the Directive.
42. Regulations describe deferred action only in the application sense as authorizing employment upon application in 8 C.F.R. § 274a.12(c)(14), or application for social security benefits, 8 C.F.R. § 1.3(a)(4)(vi). Accordingly, “deferred action” is a substantive government benefit.
43. Federal regulations do not authorize the Secretary to grant deferred action wholesale to a large number of illegal aliens.
44. Eligibility for a substantive immigration benefit may not be conferred as a matter of prosecutorial discretion, but only by regulations promulgated under authority delegated by Congress, consistent with the terms of the law authorizing the regulations.
45. By definition, “prosecutorial discretion” cannot be used to confer a substantive benefit.
46. USCIS is not a law enforcement agency and has no “prosecutorial” authority. As such, USCIS cannot exercise “prosecutorial discretion.”
HARM
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47. ICE Plaintiffs have each sworn an oath to support and defend the Constitution of the United States and the laws of the United States.
48. ICE Plaintiffs believe that if they follow the Directive, they will be violating their oath of office, as well as violating several laws of the United States.
49. ICE Plaintiffs reasonably fear, based upon official communications to them, their knowledge of communications to Plaintiff Doebler, Plaintiff Martin, and Plaintiff Crane from their superiors, past events, and public sources, that if they follow the requirements of federal law, contrary to the “Directive,” and arrest an alien or issue an alien an Notice to Appear (NTA) in removal proceedings, they will be disciplined or suffer other adverse employment consequences.
50. Plaintiff James D. Doebler arrested an alien who was unlawfully present in the United States and issued the alien an NTA, contrary to the general directions of his supervisors that he should decline to issue NTAs to certain illegal aliens. Plaintiff Doebler was issued a Notice of Proposed Suspension. Plaintiff Doebler is facing a three-day suspension for arresting and processing the alien for a hearing rather than exercising the “prosecutorial discretion” commanded by his supervisors. Plaintiff Doebler requested a written directive ordering him not to issue the NTA. His supervisors have refused to give him a written directive and would not sign any paperwork authorizing the use of “prosecutorial discretion.”
51. Plaintiff Doebler reasonably fears, based on his past experience, that if he follows the requirements of federal law, contrary to the “Directive,” and arrests an alien or issues the alien an NTA, he will be disciplined again. He reasonably fears that a second disciplinary action will result in the loss of his job.
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52. On July 17, 2012, Plaintiff Samuel Martin, along with another immigration enforcement agent, picked up an illegal alien from the El Paso County Jail. While the agents were trying to place the alien in the vehicle, the alien attempted to escape, and resisted and assaulted Plaintiff Martin and his colleague. The agents regained custody of the alien and transported him to the El Paso Criminal Alien Program office for processing. Plaintiff Martin’s supervisors ordered him to release the alien without any charges being filed against the alien and ordered Plaintiff Martin not to issue an NTA. The agents who were present protested the release of the alien; but they were told “it was a management decision, based on the President’s new immigration policies.” No supervisor ever asked the agents if they were injured or if they needed assistance. It is the understanding of Plaintiff Martin, reflected in his signed statement concerning the incident, that his supervisors gave him these orders based on the Directive.
53. On January 25, 2012, Plaintiff Christopher L. Crane, in his capacity as President of the ICE Agents and Officers Union, filed a Demand to Bargain with Defendants, expressing significant concerns with the Morton Memorandum, including that the actions that ICE agents would have to take or not take under it were contrary to federal law. The Demand to Bargain included the proposal that: “No employee will be subject to disciplinary or adverse action for refusing to obey an unlawful order.”
54. On April 5, 2012, Plaintiff Christopher L. Crane, in his capacity as President of the ICE Agents and Officers Union, submitted Additional Proposals, reiterating that officers should not be subject to discipline or adverse action for refusing to obey an unlawful order. Plaintiff Crane also filed an Information Request at that time.
55. On August 20, 2012, nearly eight months after the January 25, 2012, Demand to Bargain, Defendant Morton sent a letter to the ICE Agents and Officers Union merely indicating
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that Defendant Morton “may” formally respond to the January 25, 2012, Demand to Bargain and the April 5, 2012, Additional Proposals at an unspecified time in the future. In the past, when confronted with a Demand to Bargain letter, Defendants have ultimately refused to bargain at all and have refused to make any changes to their policies.
56. As of the filing of this complaint, Defendants have not changed ICE policies in any way in response to Plaintiff Crane’s January 25, 2012, Demand to Bargain and April 5, 2012, Additional Proposals.
57. ICE Plaintiffs reasonably expect that the filing of a similar Demand to Bargain in order to protest the Directive would be treated in a similarly non-responsive manner, and that it would not result in any response or alteration of the Directive policy.
58. Because ICE Plaintiffs are now being ordered to implement the Directive, they have an immediate and urgent need for relief. They are being ordered to violate federal law and are facing discipline or adverse employment action if they follow federal law.
59. Defendants Napolitano and Morton are obligated, under the terms of their signed agreement with the ICE Agents and Officers Union, to issue an “Article 9A Notice of Proposed Change” prior to the alteration of agency policies. The purpose of such a Notice is to allow ICE agents and officers to provide input regarding proposed agency policies. No such Notice was issued prior to the June 15, 2012, Directive or its August 15, 2012, implementation date.
60. Plaintiff the State of Mississippi will be compelled to bear the foreseeable fiscal costs of the illegal aliens residing in Mississippi who are not placed in removal proceedings, who are granted deferred action, or who are otherwise permitted to remain in the State of Mississippi, as a direct consequence of the Directive.
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61. Mississippi Governor Phil Bryant formerly served as the State Auditor of Mississippi. In that capacity, on February 21, 2006, he issued a report entitled “The Impact of Illegal Immigration on Mississippi: Costs and Population Trends” (OSA Report). A copy of the OSA Report is attached to this Amended Complaint.
62. The OSA Report concluded that the net fiscal impact of illegal aliens in the State of Mississippi was at least $25 million per year. The OSA Report took into consideration the tax contributions made to the State by illegal aliens.
63. The OSA Report was based on an estimate that the number of illegal aliens in Mississippi in 2006 was 49,000. This represented a midpoint among various estimates available at the time. Upon information and belief, the State’s current illegal alien population remains that high, if not higher.
64. Prior to the issuance of the Directive, a significant number of illegal aliens aged 30 and younger were removed from the State of Mississippi by the federal government each year.
65. The implementation of the Directive will allow a significant number of illegal aliens aged 30 and younger, who would otherwise have been removed, to remain in the State of Mississippi.
66. The illegal alien beneficiaries of the Directive that remain in the State of Mississippi will impose a net fiscal cost on the State that is foreseeable, estimable, and significant. The sources of that fiscal cost are described in the OSA Report. They include, inter alia: costs associated with educating illegal aliens in the State’s K-12 school system; costs related to uncompensated healthcare provided by state agencies, hospitals, and clinics; law enforcement costs associated with arresting, prosecuting, and incarcerating illegal aliens in the
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State’s criminal justice system; and lost tax revenues and economic losses related to illegal aliens who work “off the books” and thereby avoid paying state taxes and/or who send “remittances” to relatives in foreign countries, diverting dollars that otherwise would remain in the State’s economy and generate additional state tax revenues.
FIRST CAUSE OF ACTION THE DIRECTIVE EXPRESSLY VIOLATES FEDERAL STATUTES
REQUIRING THE INITIATION OF REMOVALS 67. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein. 68. 8 U.S.C. § 1225(a)(1) requires that “an alien present in the United States who has not been admitted … shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers 8 U.S.C. § 1225(a)(3), which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers 8 U.S.C. § 1225(b)(2)(A), which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” The proceedings under 8 U.S.C. § 1229a are removal proceedings in United States immigration courts. 69. The Directive orders ICE Plaintiffs to violate the above-listed provisions of federal law by declining to place certain aliens into removal proceedings, when federal law clearly requires Plaintiffs to place such aliens into removal proceedings. 70. The Morton Memorandum, as implemented by Defendants, asserts “prosecutorial discretion… [not] to issue, reissue, serve, file, or cancel a Notice to Appear (NTA),” in direct contradiction of 8 U.S.C. § 1225(b)(2)(A) in cases in which that statute applies.
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71. Because Congress has expressly limited the discretion of Defendants to not initiate removal proceedings, any “prosecutorial discretion” that Defendants exercise must be consistent with 8 U.S.C. § 1225 and can only occur after an alien has been placed into removal proceedings as required by 8 U.S.C. § 1225, or under a provision of federal law expressly authorizing such “prosecutorial discretion.”
72. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to violate the requirements of federal law expressed in 8 U.S.C. § 1225.
73. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
SECOND CAUSE OF ACTION THE DIRECTIVE VIOLATES FEDERAL LAW BY CONFERRING A NON-STATUTORY FORM OF BENEFIT, DEFERRED ACTION, TO MORE THAN 1.7 MILLION ALIENS, RATHER THAN A FORM OF RELIEF OR BENEFIT THAT FEDERAL LAW PERMITS ON SUCH A
LARGE SCALE 74. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein. 75. “Deferred action” is a benefit that is not authorized in federal statute and is only authorized to a limited extent and for limited purposes in federal regulations. 76. No federal regulation authorizes the granting of the benefit of deferred action to aliens who are in the position of the more than 1.7 million beneficiaries of the Directive. 77. No federal regulation authorizes the conferral of the benefit of deferred action to an entire category of unlawfully present aliens numbering in excess of 1.7 million persons. 78. If an executive agency’s practice contradicts the express terms of federal law, that practice is ultra vires and unlawful.
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79. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to violate the requirements of federal law expressed in 8 U.S.C. § 1225.
80. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
THIRD CAUSE OF ACTION THE DIRECTIVE VIOLATES FEDERAL LAW BY CONFERRING THE LEGAL BENEFIT OF EMPLOYMENT AUTHORIZATION WITHOUT
ANY STATUTORY BASIS AND UNDER THE FALSE PRETENSE OF “PROSECUTORIAL DISCRETION”
81. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein.
82. The Directive purports to use “prosecutorial discretion” to grant the benefit of employment authorization to unlawfully present aliens.
83. Employment authorization is a benefit under federal regulations that is “granted” to beneficiary aliens. 8 C.F.R. § 274a.12(c)(14).
84. Federal law specifies the circumstances under which aliens may be granted the benefit of employment authorization.
85. The Morton Memorandum on pp. 2-3 lists twelve ways in which “prosecutorial discretion” may purportedly be exercised in immigration law, but nowhere mentions the conferral of the benefit of employment authorization.
86. “Prosecutorial discretion,” insofar as it is permitted by federal immigration law, is by definition the exercise of discretion not to remove; it is not the conferral of a benefit.
87. To the limited extent that any “prosecutorial discretion” is permitted by federal immigration law, such discretion allows ICE to seek the cancellation or withholding of a
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removal. The exercise of “prosecutorial discretion” does not permit any DHS employee or officer to grant unlawfully present aliens the benefit of employment authorization in the manner attempted by the Directive.
88. U.S. Citizenship and Immigration Services is not a law enforcement agency. 89. A non-law-enforcement agency cannot exercise prosecutorial discretion. 90. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to confer a substantive benefit on aliens that is not authorized by federal law. 91. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
FOURTH CAUSE OF ACTION THE DIRECTIVE VIOLATES THE CONSTITUTIONAL ALLOCATION
OF LEGISLATIVE POWER TO CONGRESS 92. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein. 93. Article I, section 1, of the United States Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” 94. The Development, Relief, and Education for Alien Minors Act (DREAM Act), in various forms, has been proposed in Congress at least 24 times. It was introduced in the following bills: S. 1291, 107th Cong. §§ 2, 3 (2001); S. 1545, 108th Cong. (2003); S. 2863, 108th Cong. §§ 1801-1813 (2004); S. 2075, 109th Cong. (2005); H.R. 5131, 109th Cong. (2006); S. 2611, 109th Cong. §§ 621–632 (2006); H.R. 1275, 110th Cong. (2007); H.R. 1645, 110th Cong. §§ 621-632 (2007); S. 774, 110th Cong. (2007); S. 1348, 110th Cong. §§ 621–632 (2007)
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(as amended by S.A. 1150 §§ 612–619); S. 1639, 110th Cong. §§ 612-620 (2007); S. 2205, 110th Cong. (2007); H.R. 1751, 111th Cong. (2009); S. 729, 111th Cong. (2009); H.R. 5281, 111th Cong. §§ 5-16 (2010); H.R. 6497, 111th Cong. (2010); S. 3827, 111th Cong. (2010); S. 3932, 111th Cong. §§ 531-542 (2010); S. 3962, 111th Cong. (2010); S. 3963, 111th Cong. (2010); S. 3992, 111th Cong. (2010); H.R. 1842, 112th Cong. (2011); S. 952, 112th Cong. (2011); S. 1258, 112th Cong. §§ 141-149 (2011); H.R. 5869, 112th Cong. (2012).
95. The principal provisions of the DREAM Act, as reiterated in the two dozen DREAM Act bills introduced in Congress, are that it establishes a class of unlawfully present aliens who may apply for cancellation of removal and either temporary or conditional lawful residence, and then may adjust to lawful permanent resident status or have the conditions removed. The class is generally defined as those aliens who arrived in the United States as minors, have been physically present in the United States for a period of years (typically five years) prior to enactment, have not been convicted of a felony or two or more misdemeanors and do not pose a threat to national security or public safety, have earned a high school diploma or a general education development certificate in the United States, and are below a certain age (typically early to mid-thirties) on the date of enactment. Qualifying aliens whose removal is cancelled and who are granted temporary or conditional residence then must be admitted to, or earn a certain number of credits in, an institution of higher education or serve honorably in the U.S. Armed Forces for a certain period in order to adjust to lawful permanent resident status or have the conditions on their status removed.
96. The DREAM Act has never been passed by both houses of Congress and signed into law by the President.
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97. The fact that the DREAM Act has been proposed in Congress two dozen times, and has been voted on by the United States House of Representatives and by the United States Senate, indicates Congress’s understanding that federal legislation is required in order to achieve these objectives.
98. The Directive attempts to confer continued presence in the United States, as well as employment authorization, to all aliens meeting the criteria specified in the Directive.
99. The unlawfully present aliens who are given benefits by the Directive are substantially the same aliens that would have been given benefits by the DREAM Act, had it passed both Houses of Congress and been signed into law by the President.
100. The conferral of legal rights and privileges to a large class of persons meeting certain criteria is a legislative act.
101. The application of “deferred action” to approximately 15% of aliens who are in the United States without authorization is not an exercise of executive branch discretion permitted by the Constitution. The application of “deferred action” to approximately 15% of aliens who are in the United States without authorization is a legislative act of amnesty, the granting of a legislative benefit, and an act otherwise exceeding the Secretary’s authority as a principal executive officer under the Constitution. It therefore usurps the legislative authority conferred by the Constitution exclusively on Congress.
102. Because the Directive is a legislative act that Defendants have implemented through executive action, it is in violation of Article I, section 1, of the United States Constitution.
103. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to exercise legislative powers through the issuance of directives.
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104. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
FIFTH CAUSE OF ACTION THE DIRECTIVE VIOLATES THE ARTICLE II, SECTION 3, CONSTITUTIONAL OBLIGATION OF THE EXECUTIVE TO TAKE
CARE THAT THE LAWS ARE FAITHFULLY EXECUTED 105. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein. 106. Article II, section 3, of the United States Constitution requires that the President, by and through his executive branch officials, including Defendants, “shall take Care that the Laws be faithfully executed.” 107. The application of “deferred action” to approximately 15% of aliens who are in the United States without authorization is not consistent with the executive’s duty to take care that the laws be faithfully executed. In effect, the Directive orders that the immigration laws of the United States shall not be executed against a class of more than 1.7 million aliens. 108. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to decline to enforce federal immigration laws against a class of more than 1.7 million aliens. 109. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
SIXTH CAUSE OF ACTION THE DIRECTIVE VIOLATES THE ADMINISTRATIVE PROCEDURE
ACT THROUGH CONFERRAL OF A BENEFIT WITHOUT REGULATORY IMPLEMENTATION
110. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein.
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111. The Administrative Procedure Act requires that agencies implementing Congressional statutes in whole or in part through an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy do so through a rulemaking. A rulemaking under the Administrative Procedure Act is defined as the agency process for formulating, amending, or repealing a rule through notice and comment procedures under the Administrative Procedure Act, 5 U.S.C. § 553. The Immigration and Nationality Act delegates authority to the Secretary of Homeland Security and the Attorney General to implement its provisions through regulations. The Secretary has not promulgated any regulation that establishes the criteria for eligibility for relief from removal from the United States or the granting of employment authorization. The Directive identifies a large class of individuals by specific eligibility criteria against whom the immigration laws of the United States requiring their removal shall not be executed and who are made eligible for specific benefits.
112. Establishing a class of eligibility by criteria for exception from removal from the United States and affirmative eligibility for benefits is quintessentially a “rule” under the Administrative Procedure Act, 5 U.S.C. § 551(4). The Secretary has not issued a notice of proposed rulemaking or promulgated a final rule in conformity with the Administrative Procedure Act. The Directive is not a rule under the Administrative Procedure Act.
113. The Directive is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, and without observance of procedure required by the Administrative Procedure Act.
114. Defendant Napolitano’s issuance of a Federal Register Notice on August 16, 2012, as part of a so-called “information collection” exercise in no way satisfies the publication and comment requirements for rulemaking under the Administrative Procedure Act.
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115. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to circumvent the terms of the Administrative Procedure Act by simply issuing “directives” or “orders” that confer substantive legal benefits and privileges, and significantly transform the enforcement of federal immigration law.
116. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that the Court:
A. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(B) that the Directive is unlawful and in violation of Article I of the Constitution of the United States as a usurpation of legislative authority, and vacate the Directive;
B. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(B) that the Directive is unlawful and in violation of Article II of the Constitution of the United States as in excess of executive authority and vacate the Directive;
C. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(B) that the Directive and relevant provisions of the Morton Memorandum are unlawful and in violation of 8 U.S.C. § 1225(b)(2)(A) and vacate the Directive and relevant provisions of the Morton Memorandum;
D. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(C) that the Directive is unlawful and in violation of the Immigration and Nationality Act as in excess of delegated authority and vacate the Directive;
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E. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(D) that the Directive is unlawful and in violation of the Administrative Procedure Act as a rule promulgated without conforming to the procedure described therein and vacate the Directive;
F. Temporarily restrain, preliminarily enjoin, and permanently enjoin Defendants and their subordinate officers, employees, and agents from implementing or enforcing the Directive, or taking any adverse action against Plaintiffs pursuant to the Directive or for not following the Directive;
G. Direct Defendants to pay all costs associated with this lawsuit; and H. Grant such other and further relief as this Court deems equitable, just, and proper.

Dated: October 10, 2012

By: s/ Kris W. Kobach
KRIS W. KOBACH Kansas Bar No. 17280 (pro hac vice applic. pending) Kobach Law, LLC 4701 N. 130th St. Kansas City, Kansas 66109 Telephone: 913-638-5567 kkobach@gmail.com
P. MICHAEL JUNG Texas Bar No. 11054600 Strasburger & Price, LLP 901 Main Street, Suite 4400 Dallas, Texas 75202 Telephone: 214-651-4300 michael.jung@strasburger.com
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that this Amended Complaint has been served on the defendants by mailing copies thereof to: Hon. Janet Napolitano, Secretary of Homeland Security, Department of Homeland Security, Washington, D.C. 20528; and Hon. John Morton, Director, Immigration and Customs Enforcement, 500 12th Street, S.W., Washington, D.C. 20536; both on this 10th day of October, 2012.
/s P. Michael Jung
P. MICHAEL JUNG
SP-#4303469-v1-Certificate_of_Service_(TC).DOC

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

§

CHRISTOPHER L. CRANE, et al.,

§

§

Plaintiffs,

§

§

v.

§

§

JANET NAPOLITANO, in her official

§

capacity as Secretary of Homeland Security, §

et al.,

§

§

Defendants.

§

§

Civil Action No. 3:12-cv-03247-O

MEMORANDUM OPINION AND ORDER

Before the Court are Defendants’ Motion to Dismiss and Memorandum in Support (ECF No.

23), Plaintiffs’ Response to Defendants’ Motion to Dismiss (ECF No. 30), Appendix to Plaintiffs’

Response to Defendants’ Motion to Dismiss (ECF No. 31), and Defendants’ Reply to Plaintiffs’

Response to Defendants’ Motion to Dismiss (ECF No. 33). Having considered the motion, the

related briefing, the evidence presented by counsel, and the applicable law, the Court finds that

Defendants’ Motion to Dismiss (ECF No. 23) should be and is hereby GRANTED in part and

DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

The United States Department of Homeland Security (“DHS”) is a Cabinet-level department

of the United States government created in 2002 for the purpose of coordinating and unifying

national homeland security efforts. Creation of the Department of Homeland Security,

http://www.dhs.gov/creation-department-homeland-security (last visited Jan. 23, 2013). Defendant

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Janet Napolitano is the current Secretary of DHS. Pls.’ Am. Compl. ¶ 22, ECF No. 15. DHS is charged with, among other things, protecting our nation’s border security, cybersecurity, and economic security, preventing human trafficking and terrorism, and safeguarding civil rights and civil liberties. Topics, http://www.dhs.gov/topics (last visited Jan. 23, 2013). DHS is also responsible for overseeing citizenship and immigration in the United States. Id. The United States Citizenship and Immigration Services (“USCIS”) oversees lawful immigration in the United States. Citizenship & Immigration Overview, http://www.dhs.gov/topic/citizenship-and-immigrationoverview (last visited Jan. 23, 2013). Defendant Alejandro Mayorkas is the current Director of USCIS. Pls.’ Am. Compl. ¶ 24, ECF No. 15. USCIS grants immigration and citizenship benefits, promotes an awareness and understanding of citizenship, and ensures the integrity of our immigration system. Citizenship & Immigration Overview, http://www.dhs.gov/topic/citizenshipand-immigration-overview (last visited Jan. 23, 2013). The United States Immigration and Customs Enforcement (“ICE”) is the principal investigative arm of DHS, and its primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration. Overview, http://www.ice.gov/about/overview (last visited Jan. 23, 2013). Defendant John Morton is the current Director of ICE. Pls.’ Am. Compl. ¶ 23, ECF No. 15. ICE receives an annual appropriation from Congress to remove individuals who are unlawfully present in the United States. Immigration Enforcement Overview, http://www.dhs.gov/topic/immigration-enforcement-overview (last visited Jan. 23, 2013).
On June 17, 2011, Defendant Morton issued a Memorandum entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency
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for the Apprehension, Detention, and Removal of Aliens” (the “Morton Memorandum”). Pls.’ Am. Compl. ¶ 28, ECF No. 15. The Morton Memorandum provides ICE personnel “guidance on the exercise of prosecutorial discretion to ensure that the agency’s immigration enforcement resources are focused on the agency’s enforcement priorities,” which include “the promotion of national security, border security, public safety, and the integrity of the immigration system.” Morton Mem. at 1, 2, available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretionmemo.pdf. The Morton Memorandum sets out several factors that ICE officers, agents, and attorneys should consider when determining whether an exercise of prosecutorial discretion may be warranted for a particular alien. See Morton Mem. at 4–5, available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
On June 15, 2012, Defendant Napolitano issued a Directive entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (the “Directive”). Pls.’ Am. Compl. ¶¶ 2, 29, ECF No. 15; Pls.’ Am. Compl. Ex. 1 (Directive), ECF No. 15-1. The Directive sets forth to what extent, in the exercise of prosecutorial discretion, DHS should enforce immigration laws “against certain young people who were brought to this country as children and know only this country as home.” Pls.’ Am. Compl. Ex. 1 (Directive), at 1, ECF No. 15-1. The Directive instructs ICE officers to refrain from placing certain aliens who are unlawfully present in the United States into removal proceedings. It also directs ICE officers to facilitate granting deferred action to aliens who are unlawfully present in the United States and are already in removal proceedings but not yet subject to a final order of removal. Pls.’ Am. Compl. ¶ 2, ECF No. 15; Pls.’ Am. Compl. Ex. 1 (Directive), at 2, ECF No. 15-1. The Directive also instructs USCIS to accept applications to determine whether the individuals who receive deferred action are qualified
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for work authorization during the period of deferred action. Pls.’ Am. Compl. ¶ 2, ECF No. 15;
Pls.’ Am. Compl. Ex. 1 (Directive), at 3, ECF No. 15-1. To qualify for deferred action under the
Directive, the alien must satisfy the following criteria:
C came to the United States under the age of sixteen; C has continuously resided in the United States for at least five
years preceding the date of [the Directive] and is present in the United States on the date of [the Directive]; C is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; C has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and C is not above the age of thirty.
Pls.’ Am. Compl. Ex. 1 (Directive), at 1, ECF No. 15-1.
In July 2012, DHS issued the “ERO Supplemental Guidance: Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States as Children,” which directs
DHS personnel to implement the terms of the Directive. Pls.’ Am. Compl. ¶ 30, ECF No. 15. In
early August 2012, DHS issued a document entitled “National Standard Operating Procedures
(SOP): Deferred Action for Childhood Arrivals (DACA) (Form I-821D and Form I-765),” which
explains how DHS will process applications for deferred action under the Directive. Id. ¶ 31. On
August 15, 2012, DHS began accepting requests for consideration of deferred action and applications
for employment authorization pursuant to the Directive. Id. ¶ 32.
Several ICE Deportation Officers and Immigration Enforcement Agents (the “ICE Agent
Plaintiffs”)1 and the state of Mississippi, by and through Governor Phil Bryant, filed this lawsuit on
1 Plaintiff Christopher L. Crane is an ICE Deportation Officer in West Valley City, Utah. Pls.’ Am. Compl. ¶ 9, ECF No. 15. Plaintiff David A. Engle is an ICE Immigration Enforcement Agent in Dallas,
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August 23, 2012, to challenge the constitutional and statutory validity of the Directive and the Morton Memorandum. See generally Pls.’ Compl., ECF No. 1; Pls.’ Am. Compl., ECF No. 15. Plaintiffs assert that the Directive violates (1) federal statutes requiring the initiation of removals; (2) federal law by conferring a non-statutory form of benefit—deferred action—to more than 1.7 million aliens, rather than a form of relief or benefit that federal law permits on such a large scale; (3) federal law by conferring the legal benefit of employment authorization without any statutory basis and under the false pretense of “prosecutorial discretion”; (4) the constitutional allocation of legislative power to Congress; (5) the Article II, Section 3, constitutional obligation of the executive to take care that the laws are faithfully executed; and (6) the Administrative Procedure Act through conferral of a benefit without regulatory implementation. Pls.’ Am. Compl. ¶¶ 67–116, ECF No. 15. Plaintiffs’ causes of action 1, 2, 4, 5, and 6 challenge the portions of the Directive and Morton Memorandum that require ICE officers to exercise prosecutorial discretion and defer action against aliens who satisfy the Directive’s criteria. Plaintiffs’ third cause of action challenges the portion of the Directive that permits USCIS to issue employment authorization to Directive-eligible aliens during the period of deferred action. According to the Amended Complaint, the ICE Agent Plaintiffs’ supervisors have instructed them that an alien only needs to claim he is covered by the
Texas. Id. ¶ 10. Plaintiff Anastasia Marie Carroll is an ICE Immigration Enforcement Agent in El Paso, Texas. Id. ¶ 11. Plaintiff Ricardo Diaz is an ICE Immigration Enforcement Agent in El Paso, Texas. Id. ¶ 12. Plaintiff Lorenzo Garza is an ICE Immigration Enforcement Agent in Los Fresnos, Texas. Id. ¶ 13. Plaintiff Felix Luciano is an ICE Immigration Enforcement Agent in San Diego, California. Id. ¶ 14. Plaintiff Tre Rebstock is an ICE Immigration Enforcement Agent in Huntsville, Texas. Id. ¶ 15. Plaintiff Fernando Silva is an ICE Immigration Enforcement Agent in El Paso, Texas. Id. ¶ 16. Plaintiff Samuel Martin is an ICE Immigration Enforcement Agent in El Paso, Texas. Id. ¶ 17. Plaintiff James D. Doebler is an ICE Deportation Officer in Dover, Delaware. Id. ¶ 18. In this Order, the Court collectively refers to these Plaintiffs as the “ICE Agent Plaintiffs.”
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Directive to be released and offered the benefits of the Directive. Id. ¶ 33. The ICE Agent Plaintiffs are prohibited from demanding proof that an alien meets the Directive’s criteria. Id.
Plaintiffs contend that the Directive commands ICE officers to violate federal law and to violate their oaths to uphold and support federal law.2 Id. ¶¶ 4, 37–46. As a result, the ICE Agent Plaintiffs have expressed their desire not to follow the Directive, but they believe they will be disciplined or suffer other adverse employment consequences if they arrest or issue a Notice to Appear in removal proceedings (“NTA”)3 to an alien who satisfies the factors for deferred action set out in the Directive. Id. ¶ 49. The state of Mississippi contends that the beneficiaries of the Directive who remain in the state will impose a net fiscal cost on the state, including increased costs of education, healthcare, arresting, prosecuting and incarcerating illegal aliens in the state’s criminal justice system, and lost tax revenues from illegal aliens sending “remittances” to relatives in foreign countries. Id. ¶ 66. Plaintiffs seek a declaratory judgment from this Court finding the Directive unlawful and in violation of the Constitution. Pls.’ Am. Compl. ¶¶ A–E, ECF No. 15. Plaintiffs correspondingly request the Court to vacate the Directive and relevant provisions of the Morton Memorandum. Id. Plaintiffs ultimately seek a permanent injunction preventing the implementation of the Directive and preventing DHS from taking any adverse action against Plaintiffs for failure to follow the Directive. Id. ¶ F.
Defendants filed their Motion to Dismiss on November 13, 2012, asserting that Plaintiffs lack standing to challenge the Directive and the Morton Memorandum. See generally Defs.’ Mot.
2 The specific provisions of federal law at issue will be discussed later in this Order. See infra Part III.A.1.a.iii.
3 An NTA is a legal document that initiates removal proceedings against an alien. See 8 C.F.R. § 239.1.
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Dismiss, ECF No. 23. Plaintiffs filed a Response to Defendants’ Motion to Dismiss on December 4, 2012. See generally Pls.’ Resp. Mot. Dismiss, ECF No. 30; App. Pls.’ Resp. Mot. Dismiss, ECF No. 31. Defendants filed their Reply on December 18, 2012. See generally Defs.’ Reply Mot. Dismiss, ECF No. 33. Accordingly, the issues have been briefed by the parties and this matter is ripe for determination. II. LEGAL STANDARD
Federal courts are courts of limited jurisdiction, and they possess “only the power that is authorized by Article III of the Constitution and statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Under Article III of the Constitution, federal courts are confined “to adjudicating actual ‘cases’ and ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750 (1984). Of all the case-or-controversy doctrines—including standing, ripeness, political question, etc.—the requirement that a litigant have standing to invoke the power of a federal court is perhaps the most important. Id. Because the question of standing implicates the court’s subject-matter jurisdiction, the court applies the standards for a motion to dismiss pursuant to Rule 12(b)(1). Villas at Parkside Partners v. City of Farmers Branch, Tex., 245 F.R.D. 551, 556 (N.D. Tex. 2007) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998); Allen, 468 U.S. at 751).
A Rule 12(b)(1) motion to dismiss challenges the subject-matter jurisdiction of a federal district court. See Fed. R. Civ. P. 12(b)(1). Plaintiffs, as the parties invoking jurisdiction, bear the burden of demonstrating that the requirements for standing are satisfied. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). To prove standing, Plaintiffs must establish injury-in-fact, causation, and redressability. Croft v. Governor of Tex., 562 F.3d 735, 745 (5th Cir. 2009) (citing
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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). The injury-in-fact must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical,” and “the injury must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560, 560 n.1 (internal quotation marks omitted).
A court can find that subject-matter jurisdiction is lacking based on “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Ramming, 281 F.3d at 161. When challenging subject-matter jurisdiction under Rule 12(b)(1), a party can make a “facial attack” or a “factual attack.” Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). If the party merely files a Rule 12(b)(1) motion, it is considered a facial attack, and the court looks only at the sufficiency of the allegations in the pleading and assumes them to be true. Id. If, however, a party submits evidence, such as affidavits or testimony, in support of its Rule 12(b)(1) motion, the moving party makes a factual attack on subject-matter jurisdiction, and the non-moving party must submit evidence and prove by a preponderance of the evidence that the court has jurisdiction. Id. While a district court is “empowered to consider matters of fact which may be in dispute,” a motion to dismiss for lack of subject-matter jurisdiction “should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” Ramming, 281 F.3d at 161. Here, Defendants filed their motion to dismiss without any supporting affidavits or testimony, and thus Defendants make a facial attack on the Court’s subject-matter jurisdiction. Therefore, for purposes of ruling on Defendants’ motion to dismiss for lack of standing, the Court “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 (1975).
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III. ANALYSIS In their Motion to Dismiss, Defendants assert that the ICE Agent Plaintiffs have not alleged
an adequate injury-in-fact to satisfy the constitutional requirements of standing, and that the state of Mississippi has failed to allege an adequate injury-in-fact that can be redressed by a favorable ruling from the Court. Defs.’ Mot. Dismiss 8–22, ECF No. 23. Defendants argue that Plaintiffs also lack prudential standing to challenge the Directive and the Morton Memorandum because Plaintiffs are asserting generalized policy grievances and do not fall within the “zone of interests” of the provisions of the Immigration and Nationality Act at issue in this case. Id. at 22–24. Alternatively, Defendants assert that this Court lacks jurisdiction to resolve Plaintiffs’ federal employment disputes pursuant to the Civil Service Reform Act (“CSRA”). Id. at 11 n.3; Defs.’ Reply Mot. Dismiss 5, ECF No. 33. Finally, Defendants contend that Plaintiffs’ claims must be dismissed for improper venue. Defs.’ Mot. Dismiss 24–25, ECF No. 23.
Plaintiffs respond that they have suffered sufficient injuries-in-fact to satisfy the constitutional requirements for standing, and that Mississippi’s alleged fiscal injury would be redressed by a favorable ruling and an injunction preventing the implementation of the Directive and Morton Memorandum. Pls.’ Resp. Mot. Dismiss 2–14, 16–20, ECF No. 30. Plaintiffs argue that they have prudential standing because the ICE Agent Plaintiffs are directly regulated by the statutory provisions at issue, and their arguments are based on the law rather than general policy objections. Id. at 14–15. Finally, Plaintiffs assert that venue is proper in the Northern District of Texas because one of the ICE Agent Plaintiffs resides in this district. Id. at 24–25.
The Court will first address Defendants’ contention that Plaintiffs lack standing to challenge the Directive and the Morton Memorandum.
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A. Standing The “irreducible constitutional minimum of standing contains three elements.” Lujan, 504 U.S. at 560. First, Plaintiffs “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.’” Id. (internal citations omitted) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Second, Plaintiffs must demonstrate “a causal connection between the injury and the conduct complained of—the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.’” Id. (alteration in original) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976)). “Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id. (quoting Simon, 426 U.S. at 38, 43). “[T]he injury required for standing need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008). Beyond the constitutional requirements for standing, “the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982). 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.” Id. (quoting Warth, 422 U.S. at 499). “In addition, even when the plaintiff has alleged redressable injury sufficient to meet the requirements of Art. III,” federal courts refrain from “adjudicating ‘abstract questions of wide public significance’ which amount to ‘generalized grievances,’ pervasively shared and most appropriately addressed in the
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representative branches.” Id. at 474–75 (quoting Warth, 422 U.S. at 499–500). Finally, Plaintiffs must fall within “the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Id. at 475 (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). A court analyzes prudential standing “only if the Article III standing requirements are met.” Wyoming v. U.S. Dep’t of the Interior, 674 F.3d 1220, 1231 (10th Cir. 2012). “Where a party champions his own rights, and where the injury alleged is a concrete and particularized one which will be prevented or redressed by the relief requested, the basic practical and prudential concerns underlying the standing doctrine are generally satisfied when the constitutional requisites are met.” Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 80–81 (1978). As the parties invoking jurisdiction, Plaintiffs bear the burden of demonstrating that all of the requirements for standing are satisfied. See Ramming, 281 F.3d at 161.
In their Amended Complaint, Plaintiffs challenge two distinct aspects of the Directive and Morton Memorandum: (1) the requirement that ICE Agents exercise prosecutorial discretion when they encounter an illegal alien who satisfies the criteria set out in the Directive, and (2) the requirement that USCIS accept applications to determine whether illegal aliens for whom action is deferred qualify for work authorization during the period of deferred action. The Court will address each of these challenges separately with respect to the ICE Agent Plaintiffs and the state of Mississippi.
1. ICE Agent Plaintiffs a. Challenge to the Exercise of Prosecutorial Discretion
Plaintiffs’ causes of action 1, 2, 4, 5, and 6 challenge the portions of the Directive and Morton Memorandum that require ICE officers to exercise prosecutorial discretion and defer action
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against aliens who satisfy the Directive’s criteria. Defendants assert that the ICE Agent Plaintiffs have not alleged a sufficient injury-in-fact to satisfy the constitutional requirements of standing to challenge those portions of the Directive and Morton Memorandum. See generally Defs.’ Mot. Dismiss, ECF No. 23. Defendants do not challenge the causation and redressability requirements of constitutional standing. See generally id. Specifically, Defendants argue that the ICE Agent Plaintiffs’ allegation that compliance with the Directive and the Morton Memorandum would require them to violate their oath is insufficient to establish standing because the violation of one’s oath, on its own, is not a sufficient injury-in-fact. Id. at 11–16. In response, Plaintiffs assert that the ICE Agent Plaintiffs have suffered three distinct injuries-in-fact, any one of which would be sufficient to satisfy the requirements of standing: (1) “being compelled to violate their oaths of office, on pain of adverse employment action if they do not,” (2) “the burden of compliance with the Directive,” and (3) “being compelled to violate a federal statute directed specifically at them, on pain of adverse employment action if they do not.” Pls.’ Resp. Defs.’ Mot. Dismiss 2, ECF No. 30. The Court will address the adequacy of each of these alleged injuries-in-fact in turn.
i. Violation of Oath First, the ICE Agent Plaintiffs assert that they have suffered an injury-in-fact because following the Directive and the Morton Memorandum would require them to violate their oaths to uphold the Constitution and laws of the United States of America. See Pls.’ Resp. Mot. Dismiss 7–12, ECF No. 30. Defendants argue that the violation of one’s oath is insufficient to establish standing in the Fifth Circuit because there must also be a separate, concrete, adverse consequence that flows from one’s violation of his oath. Defs.’ Mot. Dismiss 11, ECF No. 23. Because the ICE Agent Plaintiffs have not alleged that they will suffer any separate, concrete, adverse consequence
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apart from the violation of their oath if they comply with the Directive, Defendants assert that the ICE Agent Plaintiffs have not alleged a sufficient injury-in-fact to satisfy the constitutional requirements of standing. Id. at 11–16. The Court finds that the ICE Agent Plaintiffs have not alleged a sufficient injury-in-fact under the Fifth Circuit’s standard for violation-of-oath standing.
Violation-of-oath standing originated in the Supreme Court’s decision of Board of Education v. Allen, 392 U.S. 236 (1968). In Allen, school boards in New York challenged a state law that required them to provide free textbooks to students attending private, parochial schools as well as public schools. Id. at 238–40. The school boards alleged that the state law violated both the State and Federal Constitutions; that if they failed to lend books to parochial school students, in reliance on their interpretation of the Constitutions, then the defendant would remove them from office; and to prevent their removal the school boards were complying with the law. Id. at 240. The case eventually made its way to the Supreme Court of the United States. Though the issue of standing was not raised before the Supreme Court, the Court stated in a footnote:
Appellants have taken an oath to support the United States Constitution. Believing § 701 to be unconstitutional, they are in the position of having to choose between violating their oath and taking a step—refusal to comply with § 701—that would be likely to bring their expulsion from office and also a reduction in state funds for their school districts. There can be no doubt that appellants thus have a “personal stake in the outcome” of this litigation. Id. at 241 n.5. Subsequent decisions have recognized standing on this theory, while some circuit courts—including the Fifth Circuit—have questioned Allen’s continued validity. Compare Regents of Univ. of Minn. v. Nat’l Collegiate Athletic Ass’n, 560 F.2d 352, 363–64 (8th Cir. 1977), Akron Bd. of Educ. v. State Bd. of Educ. of Ohio, 490 F.2d 1285, 1290–91 (6th Cir. 1974), and Peick v. Pension Benefit Guar. Corp., 724 F.2d 1247, 1260 n.14 (7th Cir. 1983), with Drake v. Obama, 664
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F.3d 774, 779–81 (9th Cir. 2011), City of S. Lake Tahoe v. Cal. Tahoe Reg’l Planning Agency, 625 F.2d 231, 234–38 (9th Cir. 1980), Donelon v. La. Div. of Admin. Law ex rel. Wise, 522 F.3d 564, 566–68 (5th Cir. 2008), and Finch v. Miss. State Med. Ass’n, 585 F.2d 765, 773–75 (5th Cir. 1978).
The Fifth Circuit addressed violation-of-oath standing and the continued validity of the Allen rule in Finch v. Mississippi State Medical Association, 585 F.2d at 773–75. In Finch, the Governor of Mississippi, among others, challenged the constitutional validity of a state statute that provided for the appointment of members of the State Medical Association. Id. at 768–69. The Governor asserted that he had standing to challenge the state statute because:
he must violate his oath of office to uphold the laws of Mississippi if he ignores the statute and he must violate his oath to uphold the Constitutions of Mississippi and the United States if he obeys it; in his opinion the statute violates both constitutions; and if he fails to act, he may be sued for damages. Id. at 773. The Fifth Circuit held that the Governor lacked standing to challenge the statute. Id. at 775. The Fifth Circuit stated that subsequent Supreme Court decisions had narrowed the scope of standing based on the Allen rule. Id. at 773 (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976); Warth, 422 U.S. 490). The Court found that “[t]he mental disposition of the Governor is all that gives him cause to complain; were he to change his mind tomorrow and decide . . . that the statute is valid, he would no longer have any interest in the case.” Id. at 774. Because the Governor faced no negative consequences if he followed the challenged statute, the alleged violation of his oath was insufficient on its own to satisfy the constitutional requirements of standing. Id. (“The Governor, as an elected official, is in no danger of expulsion from office as a result of any action that he alone believes may
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have violated his oath. . . . Furthermore, there is no allegation that his office is in any danger of a loss of funds . . . if the Governor refuses to comply with the statute.”).
Similarly, in Donelon the Fifth Circuit found that the Louisiana State Commissioner of Insurance did not have standing to challenge the constitutionality of a Louisiana law that allowed judges in the Louisiana Division of Administrative Law to overturn his decisions. 522 F.3d at 565. The Commissioner lacked standing to sue primarily because he was seeking to protect the full extent of his official powers under federal and state law, and there was no claim that he suffered any personal injury when an administrative law judge overturned one of his decisions pursuant to the challenged law. Id. at 568. “As in Finch,” the Commissioner was “merely suing to ensure Louisiana law conforms to his opinion of what federal law requires.” Id. Furthermore, the Commissioner faced no negative consequences if he complied with the challenged law. Id. (“Nor is there a claim that he will be expelled from office or lose public funding if he complies with Louisiana law.”).
Defendants assert that Finch and Donelon establish that, in the Fifth Circuit, if an alleged violation of one’s oath “is the only consequence that flows from upholding a challenged law, a plaintiff cannot establish standing by suggesting that a refusal to uphold the law will result in injury.” Defs.’ Mot. Dismiss 14, ECF No. 23. The Court agrees. Here, the ICE Agent Plaintiffs are suing to ensure that the Directive and Morton Memorandum comply with their opinion of what federal law requires. See Donelon, 522 F.3d at 568; see also Finch, 585 F.2d at 774. The ICE Agent Plaintiffs have alleged that they will be disciplined if they refuse to comply with the Directive and the Morton Memorandum. However, they have not alleged that they will be disciplined if they comply with the Directive and Morton Memorandum. They allege, instead, that complying with the Directive and Morton Memorandum will cause them to violate their oaths to uphold the Constitution
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and laws of the United States. Because the ICE Agent Plaintiffs have not alleged that any negative consequence apart from the violation of their oath will flow from complying with the challenged Directive and Morton Memorandum, they have failed to allege a sufficient injury-in-fact under the Fifth Circuit’s interpretation of violation-of-oath standing. See Donelon, 522 F.3d at 568; Finch, 585 F.2d at 774.4
ii. Burden of Compliance Next, the ICE Agent Plaintiffs assert that the burden of compliance with the Directive qualifies as a sufficient injury-in-fact to satisfy the requirements of constitutional standing. Pls.’ Resp. Mot. Dismiss 12–14, ECF No. 30. Essentially, the ICE Agent Plaintiffs contend that because they have to alter their conduct to conform to the requirements of the Directive and the Morton Memorandum, they possess standing to challenge the constitutionality of the Directive and the Morton Memorandum. See id. Defendants argue that “a government employee responsible for carrying out an agency policy does not have standing to challenge that policy merely because of work responsibilities related to that policy.” Defs.’ Reply Mot. Dismiss 5, ECF No. 33. The Court finds that the burden of compliance with the Directive and the Morton Memorandum is insufficient to satisfy the injury-in-fact requirement of constitutional standing.
4 The Ninth Circuit uses this same standard for violation-of-oath standing. See Drake, 664 F.3d at 780. In Drake, plaintiff on active military duty asserted that President Obama was ineligible for the presidency and, as a result, following President Obama’s orders would force plaintiff to violate his oath to uphold the Constitution. Id. The Ninth Circuit held that plaintiff did not allege a sufficient injury-in-fact because it was purely speculative that he would be disciplined for obeying President Obama’s orders. Id. “He might be disciplined for disobeying those orders, but he has an ‘available course of action which subjects [him] to no concrete adverse consequences’—he can obey the orders of the Commander-in-Chief.” Id.
(quoting City of S. Lake Tahoe, 625 F.2d at 237 (alteration in original)). 16

The ICE Agent Plaintiffs allege that they must inevitably alter their current procedures to ensure that they comply with the Directive and the Morton Memorandum and defer action with respect to Directive-eligible aliens. App. Pls.’ Resp. Mot. Dismiss Ex. 1 (Crane Aff.), ¶ 11, ECF No. 31 (stating that the ICE Agent Plaintiffs must spend time “conducting criminal and immigration background checks as well as conducting interviews of aliens who claim to be eligible for deferred action”); id. Ex. 2 (Engle Aff.), ¶ 18 (same); id. Ex. 3 (Doebler Aff.), ¶ 14 (same); id. Ex. 4 (Martin Aff.), ¶ 21 (same). The ICE Agent Plaintiffs assert that this alone may be a sufficient injury-in-fact traceable to the Directive and the Morton Memorandum that a favorable decision could redress. Pls.’ Resp. Mot. Dismiss 13, ECF No. 30 (quoting Gray v. City of Valley Park, Mo., 567 F.3d 976, 979–80 (8th Cir. 2009)). However, merely having to alter one’s conduct is not a sufficient injury-infact to have standing to challenge a statute, regulation, or rule. The cases on which the ICE Agent Plaintiffs rely all involved entities that would inevitably incur financial costs or harm to property interests as a result of complying with the challenged statutes. See Gray, 567 F.3d at 986 (owners of rental properties had to incur costs in altering their hiring procedures to ensure that they complied with the challenged ordinance); Am. Forest & Paper Ass’n v. U.S. E.P.A., 137 F.3d 291, 296 (5th Cir. 1998) (the costs of complying with the EPA’s challenged regulation, “including delays in permitting and the added risk that an application will be denied,” qualified as an injury-in-fact sufficient to satisfy the constitutional requirements of standing); Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp. 2d 835, 848 (N.D. Tex. 2012) (apartment tenants had to modify their rental agreements to comply with the challenged city ordinance); see also 520 Mich. Ave. Assocs. v. Devine, 433 F.3d 961, 963 (7th Cir. 2006) (explaining that in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), drug manufacturers had standing to challenge a regulation because
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of the costs “the manufacturers would incur in preparing to comply (or the legal risks they would incur in not doing so)”). Here, the ICE Agent Plaintiffs do not suffer any financial burden or harm to their personal property interests by complying with the Directive and the Morton Memorandum and deferring action against Directive-eligible aliens. They simply must change the way they conduct their duties while performing their jobs as ICE agents. Accordingly, the Court finds that the burden of compliance with the Directive and the Morton Memorandum, standing alone, is not a sufficient injury-in-fact that satisfies the constitutional requirements of standing.
iii. Being Compelled to Violate a Federal Statute upon Pain of Adverse Employment Action
Next, the ICE Agent Plaintiffs assert that they have suffered an injury-in-fact by virtue of being compelled to violate a federal statute upon pain of adverse employment action. Pls.’ Resp. Mot. Dismiss 2–7, ECF No. 30. Plaintiffs allege that the Directive and the Morton Memorandum require them to choose between (1) complying with the Directive and the Morton Memorandum and consequently violating their statutory duties under federal law and (2) violating the Directive and the Morton Memorandum and being disciplined as a result. Id. Defendants’ response to this basis of standing is essentially the same as their response to the issue of violation-of-oath standing: Defendants contend that the ICE Agent Plaintiffs have not alleged a sufficient injury-in-fact because they have not alleged that they will “personally suffer any adverse consequence as a result of implementing the challenged memoranda.” Defs.’ Reply Mot. Dismiss 1, ECF No. 33. For the reasons set forth below, the Court finds that the ICE Agent Plaintiffs have alleged a sufficient injuryin-fact to satisfy the constitutional requirements of standing.
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The ICE Agent Plaintiffs allege that compliance with the Directive and Morton Memorandum would require them to violate their statutory obligations under the Immigration and Nationality Act (“INA”). Pls.’ Am. Compl. ¶¶ 37–40, ECF No. 15; see generally 8 U.S.C. §§ 1101–1537. The INA provides that “[a]n alien present in the United States who has not been admitted . . . shall be deemed for purposes of this chapter an applicant for admission.” 8 U.S.C. § 1225(a)(1). All applicants for admission “shall be inspected by immigration officers.” Id. § 1225(a)(3). “[I]f the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [of the INA].” Id. § 1225(b)(2)(A). The ICE Agent Plaintiffs assert that these statutory provisions require them to arrest or issue an NTA to illegal aliens whenever those aliens “are not clearly and beyond a doubt entitled to be admitted” to the United States. Pls.’ Am. Compl. ¶¶ 37–40, ECF No. 15; Pls.’ Resp. Mot. Dismiss 2–3, ECF No. 30. Because Directive-eligible aliens may not be “clearly and beyond a doubt entitled to be admitted,” Plaintiffs allege that federal law requires them to arrest those aliens or issue an NTA. Pls.’ Am. Compl. ¶¶ 37–40, ECF No. 15; Pls.’ Resp. Mot. Dismiss 2–3, ECF No. 30. The Directive and the Morton Memorandum, in contrast, require the ICE Agent Plaintiffs to defer action against Directive-eligible aliens. Pls.’ Resp. Mot. Dismiss 3, ECF No. 30. The ICE Agent Plaintiffs “fear, based upon official communications to them, . . . that if they follow the requirements of federal law, contrary to the Directive, and arrest an alien or issue an alien a Notice to Appear (NTA) in removal proceedings, they will be disciplined or suffer other adverse employment consequences.” Pls.’ Am. Compl. ¶ 49, ECF No. 15.
Several cases have made it clear that where a plaintiff states an intention to engage in a course of conduct prohibited by rule, the plaintiff has standing to challenge the rule, even absent a
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specific threat of enforcement. For example, in Doe v. Bolton the Supreme Court found that several physicians had standing to challenge a Georgia abortion statute because they risked criminal prosecution if they disobeyed the requirements of the statute, even though no prosecution had been threatened. 410 U.S. 179, 188 (1973). Similarly, in United Food & Commercial Workers International Union v. IPB, Inc., the Eighth Circuit found that unions and union officials had standing to challenge two anti-picketing statutes because they risked criminal prosecution if they disobeyed the requirements of the statutes, even though no picketers had been arrested or prosecuted. 857 F.2d 422, 424, 427–28 (8th Cir. 1988). In Gray v. City of Valley Park, Missouri, the Eighth Circuit found that owners of rental properties in Valley Park, Missouri had standing to challenge an ordinance that prohibited business entities in the city from knowingly employing unauthorized aliens. 567 F.3d 976, 979–80 (8th Cir. 2009). The court stated: “Where a plaintiff alleges an intention to engage in a course of conduct that is clearly proscribed by statute, courts have found standing to challenge the statute, even absent a specific threat of enforcement.” Id. at 985 (citing Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 507 (1972)). Additionally, in KVUE, Inc. v. Moore, the Fifth Circuit found that a television broadcaster had standing to challenge a Texas statute prescribing the rates radio and television stations could charge political advertisers even though the broadcaster had not been threatened with prosecution. 709 F.2d 922, 926 (5th Cir. 1983). The broadcaster had stated its desire to violate the statute by charging higher rates, and the county attorney had “not rule[d] out prosecution.” Id. at 930. The Fifth Circuit found that the broadcaster had demonstrated “a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement,” even though the state had not yet enforced the statute against the broadcaster. Id. at 928, 930 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
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Here, the Directive and the Morton Memorandum require Plaintiffs to defer action against illegal aliens who satisfy the criteria set out in the Directive. Pls.’ Am. Compl. Ex. 1 (Directive), at 2, ECF No. 15-1. Plaintiffs have made it clear that they do not intend to comply with the Directive and the Morton Memorandum by deferring action for Directive-eligible aliens. Pls.’ Am. Compl. ¶¶ 50–58, ECF No. 15. Rather, Plaintiffs intend to comply with what they believe to be their statutory obligations by arresting or issuing an NTA to any illegal aliens who are not “clearly and beyond a doubt entitled to be admitted” to the United States, which may include some Directiveeligible aliens. See 8. U.S.C. § 1225(b)(2)(A). Plaintiffs face the threat of disciplinary action if they engage in this intended course of conduct and violate the commands of the Directive by arresting or issuing an NTA to a Directive-eligible alien. See Pls.’ Am. Compl. ¶ 49, ECF No. 15. There is “no question” that the ICE Agent Plaintiffs have sufficient standing as plaintiffs under these circumstances: the Directive and the Morton Memorandum are specifically directed at the ICE Agent Plaintiffs; the Directive and the Morton Memorandum require them to make significant changes in the way they carry out their duties; and if they fail to comply with the Directive and the Morton Memorandum they will be exposed to adverse employment consequences. See Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967). An adverse employment action, or the threat thereof, constitutes an injury-in-fact. See United States v. City of Miami, Fla., 664 F.2d 435, 446 (Former 5th Cir. Dec. 1981) (en banc) (per curiam) (finding that plaintiffs suffered the requisite injury-in-fact to satisfy the requirements of Article III where decree allowed plaintiffs who passed a civil service test to be passed over for promotions); see also Shanahan v. City of Chi., 82 F.3d 776, 780 (7th Cir. 1996) (finding that plaintiff suffered an adequate injury-in-fact when he was demoted to his former position). The Court finds that the potential disciplinary action that results from failing to comply
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with the Directive and the Morton Memorandum constitutes a sufficient injury-in-fact to satisfy the constitutional requirements of standing.5
Accordingly, the Court finds that the ICE Agent Plaintiffs have alleged a sufficient injury-infact to satisfy the constitutional requirements of standing. Furthermore, the alleged injury is directly traceable to the Defendants’ conduct in issuing and enforcing the Directive and Morton Memorandum, and a favorable decision by this Court would likely redress the injury. Accordingly, the Court finds that the ICE Agent Plaintiffs have met their burden of establishing the constitutional requirements of standing to challenge the portions of the Directive and the Morton Memorandum related to the exercise of prosecutorial discretion.
iv. Prudential Standing A court analyzes prudential standing “only if the Article III standing requirements are met.” Wyoming v. U.S. Dep’t of the Interior, 674 F.3d 1220, 1231 (10th Cir. 2012). Because the Court has found that the ICE Agent Plaintiffs have alleged a sufficient injury-in-fact to satisfy the constitutional requirements of standing to challenge the portions of the Directive and the Morton Memorandum related to deferred action, the Court must now address whether the prudential principles of standing require the Court to dismiss the case. Defendants argue that Plaintiffs do not have prudential standing because they are asserting “generalized grievances” shared by the public at large and because Plaintiffs are not in the “zone of
5 The Court finds the threat of disciplinary action sufficiently concrete to qualify as an injury-in-fact. Plaintiff James D. Doebler has already been disciplined for issuing an NTA to a Directive-eligible alien. Pls.’ Am. Compl. ¶ 50, ECF No. 15; App. Pls.’ Resp. Mot. Dismiss Ex. 3 (Doebler Aff.), ¶¶ 2–9, ECF No. 31. Plaintiff David A. Engle has been specifically threatened with disciplinary action if he issues an NTA to a Directive-eligible alien. App. Pls.’ Resp. Mot. Dismiss Ex. 2 (Engle Aff.), ¶¶ 8, 20, ECF No. 15-1. The Court finds the remaining ICE Agent Plaintiffs’ fear of disciplinary action reasonable in light of what their colleagues have experienced.
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interests” protected or regulated by the provisions of the INA at issue in the present case. Defs.’ Mot. Dismiss 2, 3–4, 22–24, ECF No. 23. Defendants assert that Plaintiffs are not within the zone of interests protected or regulated by 8 U.S.C. § 1225(b)(2)(A) because that statute establishes a procedure for aliens to be subject to removal, and Congress provided a framework for aliens to contest such removals in 8 U.S.C. § 1252(a). Id. at 23–24. Plaintiffs respond that they are not asserting generalized policy objections; rather, their complaint is based on the allegation that the Directive and Morton Memorandum violate the Administrative Procedure Act and the express terms of 8 U.S.C. §§ 1225(a)(3) and (b)(2)(A). Pls.’ Resp. Mot. Dismiss 14, ECF No. 30. Plaintiffs also argue that they satisfy the “zone of interests” test because the statutes in question—8 U.S.C. §§ 1225(a)(3) and (b)(2)(A)—directly regulate their conduct as immigration enforcement agents. Id. at 15.
To have prudential standing, 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.” Valley Forge Christian Coll., 454 U.S. at 474 (quoting Warth, 422 U.S. at 499). “In addition, even when the plaintiff has alleged redressable injury sufficient to meet the requirements of Art. III,” federal courts refrain from “adjudicating ‘abstract questions of wide public significance’ which amount to ‘generalized grievances,’ pervasively shared and most appropriately addressed in the representative branches.” Id. at 474–75 (quoting Warth, 422 U.S. at 499–500). Finally, Plaintiffs must fall within “the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Id. at 475 (quoting Camp, 397 U.S. at 153). “Where a party champions his own rights, and where the injury alleged is a concrete and particularized one which will be prevented or redressed by the relief requested, the basic practical and prudential concerns underlying the standing
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doctrine are generally satisfied when the constitutional requisites are met.” Duke Power Co., 438 U.S. at 80–81.
Here, because the ICE Agent Plaintiffs are asserting their own rights to be free from adverse employment consequences, because the alleged injury is sufficiently concrete, and because the injury will be prevented or redressed by the relief requested, the Court is satisfied that the ICE Agent Plaintiffs are not asserting “generalized policy grievances” that would be more appropriately resolved by the representative branches of government. See supra Part III.A.1.a.iii. Additionally, the statutory provisions at issue in this case—8 U.S.C. §§ 1225(a)(3) and (b)(2)(A)—govern the conduct of the ICE Agent Plaintiffs while conducting their investigations and initiating removal proceedings. The Court therefore finds that the ICE Agent Plaintiffs are within the “zone of interests . . . regulated by the statute” in question. See Valley Forge Christian Coll., 454 U.S. at 475. Accordingly, the Court is satisfied that the ICE Agent Plaintiffs have met their burden of proving that they have prudential standing to challenge the portions of the Directive and the Morton Memorandum related to the exercise of prosecutorial discretion.
b. Challenge to Employment Authorization Plaintiffs’ third cause of action challenges the portion of the Directive that permits USCIS to issue employment authorization to Directive-eligible aliens during the period of deferred action. See Pls.’ Am. Compl. ¶¶ 81–91, ECF No. 15. Defendants assert that the ICE Agent Plaintiffs “have claimed no injury that results from USCIS providing employment authorization to those with deferred action.” Defs.’ Mot. Dismiss 10, ECF No. 23. Defendants argue that the ICE Agent Plaintiffs’ challenge to the portion of the Directive instructing USCIS to provide employment authorization is a generalized grievance that does not satisfy the constitutional requirements of
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standing because the ICE Agent Plaintiffs have no connection to the employment-authorization process. Id. at 9–10.
Plaintiffs respond that Defendants have misconstrued the ICE Agent Plaintiffs’ role in the employment-authorization process. Pls.’ Resp. Mot. Dismiss 20, ECF No. 30. Plaintiffs explain that the Directive specifies three avenues by which illegal aliens who qualify for deferred action may obtain employment authorization:
(1) ICE encounters such aliens during its law enforcement operations and must then grant them deferred action; (2) ICE identifies Directive-eligible aliens who are already in removal proceedings and must then grant them deferred action; and (3) aliens present themselves to USCIS to request deferred action without ever interacting with ICE. Id. at 20–21 (citing Pls.’ Am. Compl. Ex. 1 (Directive), at 2, ECF No. 15-1). The ICE Agent Plaintiffs assert that they are directly involved in the employment-authorization process because an ICE agent’s decision to defer action under the Directive “is a prerequisite to the alien receiving employment authorization” in two out of the three possible avenues for obtaining employment authorization. Id. at 21. In the third avenue, where aliens present themselves to USCIS to request deferred action and employment authorization without ever interacting with ICE, the ICE Agent Plaintiffs argue that the granting of employment authorization constrains their ability “to carry out their duties after-the-fact.” Id. Plaintiffs allege that when an ICE officer encounters aliens who have been issued employment authorization under the Directive, he must decline to remove those aliens and decline to take action against their employers. Id. at 21–22. According to Plaintiffs, the restriction in the way the ICE Agent Plaintiffs must carry out their duties is sufficient to confer standing to challenge the issuance of employment authorizations.
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The Court finds that the ICE Agent Plaintiffs have not alleged a sufficient injury to satisfy the requirements of standing to challenge the portion of the Directive related to the issuance of employment authorization. First, the ICE Agent Plaintiffs are not involved in the employmentauthorization process. Contrary to their allegation, the ICE Agent Plaintiffs are not a “necessary first step that is part of a two-step process” for Directive-eligible aliens to obtain employment authorization. See id. at 21. The avenues described above are not three separate avenues by which Directive-eligible aliens may obtain employment authorization. Rather, they are three separate avenues by which an alien may obtain deferred action. The Directive only provides one avenue for aliens to obtain work authorization: filing an application with USCIS. See Pls.’ Am. Compl. Ex. 1 (Directive), at 3, ECF No. 15-1 (“For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during the period of deferred action.”). While a decision to defer action is a prerequisite to an alien obtaining employment authorization, under the Directive many aliens may be granted deferred action and employment authorization without ICE ever being involved. An alien may request deferred action and apply for employment authorization directly with USCIS, which is an agency of DHS that is completely separate from ICE. See generally “Deferred Action for Childhood Arrivals,” http://www.dhs.gov/deferred-action-childhood-arrivals (last visited Jan. 23, 2013) (explaining the process for requesting consideration of deferred action and applying for employment authorization with USCIS). The ICE Agent Plaintiffs are never involved in the decision to issue employment authorization under the Directive. That is a decision left solely to USCIS.
Second, the ICE Agent Plaintiffs have failed to articulate how the issuance of employment authorization harms them personally. With respect to the decision to defer action, the ICE Agent
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Plaintiffs have alleged a sufficient personal stake in the outcome of the litigation because they face adverse employment consequences if they fail to comply with the Directive. Unlike the decision to defer action, however, the ICE Agent Plaintiffs have not alleged that they will be disciplined if USCIS fails to issue employment authorization to Directive-eligible aliens, or that they will be harmed in any other way. The Supreme Court has “‘consistently held that a plaintiff . . . claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large . . . does not state an Article III case or controversy.’” Lance v. Coffman, 549 U.S. 437, 439 (2007) (quoting Lujan, 504 U.S. at 573–74). Plaintiffs’ third cause of action alleges simply that “the Directive violates federal law by conferring the legal benefit of employment authorization without any statutory basis and under the false pretense of ‘prosecutorial discretion.’” Pls.’ Am. Compl. 17, ECF No. 15. Because this cause of action avers generally that the issuance of employment authorization is inconsistent with the Constitution and laws of the United States, and because a favorable ruling from this Court vacating the portion of the Directive that relates to employment authorization would “no more directly and tangibly benefit[]” the ICE Agent Plaintiffs than it would the public at large, the Court finds that the ICE Agent Plaintiffs lack standing to challenge this portion of the Directive. See Lance, 549 U.S. at 439. Accordingly, Plaintiffs’ third cause of action challenging the issuance of employment authorization to Directive-eligible aliens is hereby DISMISSED without prejudice to refiling.6
6 While the ICE Agent Plaintiffs do not have standing to challenge the issuance of work authorization, as discussed above they do have standing to challenge the portions of the Directive and the Morton Memorandum that relate to deferred action. The ICE Agent Plaintiffs’ standing to challenge the granting of deferred action is based on the fact that they may be disciplined for arresting or issuing an NTA to a Directive-eligible alien; however, the ICE Agent Plaintiffs face no similar threat of disciplinary action
27

2. Mississippi Defendants assert that Mississippi’s claims should be dismissed for lack of standing because Mississippi’s alleged fiscal injury is purely speculative. See Defs.’ Mot. Dismiss 16–21, ECF No. 23. Mississippi’s alleged injury is the purported “fiscal costs of the illegal aliens residing in Mississippi” who are permitted to remain in the state pursuant to the Directive and the Morton Memorandum. Pls.’ Am. Compl. ¶ 60, ECF No. 15. Defendants do not dispute that the expenditure of state funds may qualify as an invasion of a legally protected interest sufficient to establish standing under the proper circumstances. See, e.g., Sch. Dist. of City of Pontiac v. Sec’y of U.S. Dep’t of Educ., 584 F.3d 253, 261 (6th Cir. 2009) (school districts and education associations had standing “based on their allegation that they must spend state and local funds” to comply with the challenged law); Clinton v. City of N.Y., 524 U.S. 417, 430–31 (1998) (adverse effects on the “borrowing power, financial strength, and fiscal planning” of a governmental entity can constitute a sufficient injury-in-fact to establish constitutional standing). Rather, Defendants assert that Mississippi’s alleged injury is purely conjectural and based on speculation, thus making it insufficiently concrete to confer standing. Defs.’ Mot. Dismiss 16–21, ECF No. 23. Plaintiffs rely on reports and statistics outlining the costs illegal aliens impose on the nation as a whole and the state of Mississippi specifically to support their assertion that Mississippi’s economic injury resulting from the implementation of the Directive and the Morton Memorandum is “already manifest.” See Pls.’ Resp. Mot. Dismiss 16–19, ECF No. 30. Based on the evidence presented, the Court concludes
if USCIS fails to issue work authorization under the Directive. The Court recognizes that should the ICE Agent Plaintiffs ultimately prevail on their challenge to the granting of deferred action, such a decision will necessarily affect USCIS’s ability to issue work authorization under the Directive. However, the Court finds that the ICE Agent Plaintiffs do not have standing to challenge the issuance of work authorization directly because they are not personally harmed by the work authorization process.
28

that Mississippi’s alleged injury of increased fiscal costs resulting from the Directive and the Morton Memorandum is insufficiently concrete to satisfy the constitutional requirements of standing because it is conjectural and based on speculation.
Mississippi, as the party invoking federal jurisdiction, bears the burden of establishing that the constitutional requirements of standing are satisfied. See Lujan, 504 U.S. at 561. The first element of constitutional standing is that “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.” Id. at 560. To qualify as an injury in fact sufficient to confer constitutional standing, a state’s alleged fiscal burden must not be “purely speculative” or “remote and indirect.” See Florida v. Mellon, 273 U.S. 12, 17–18 (1927) (“The claim of immediate injury to the state rests upon the allegation that the act will have the result of inducing potential taxpayers to withdraw property from the state, thereby diminishing the subjects upon which the state power of taxation may operate. The averment to that effect, however, affords no basis for relief, because . . . the anticipated result is purely speculative, and, at most, only remote and indirect.”).
Plaintiffs primarily rely on a 2006 Audit Report compiled by then Mississippi State Auditor Phil Bryant entitled “The Impact of Illegal Immigration on Mississippi: Costs and Population Trends” to support their assertion that the Directive and Morton Memorandum result in fiscal injury to the state of Mississippi. See Pls.’ Resp. Mot. Dismiss 16, ECF No. 30; see generally Pls.’ Am. Compl. Ex. 2 (2006 Audit Report), ECF No. 15-2. The economic data in the 2006 Audit Report, however, does not support Mississippi’s alleged injury. The report admits that Mississippi cannot “accurately quantify the costs of illegal immigrants,” the report’s conclusions are “estimates” because there is a “lack of data” or only “anecdotal evidence,” and local and state law enforcement
29

have “no accurate picture of the costs associated with illegal immigrants.” Pls.’ Am. Compl. Ex. 2 (2006 Audit Report), 18–19, ECF No. 15-2. While it is not necessary for Plaintiffs to quantify the exact extent of any alleged fiscal injury, it is necessary for Plaintiffs to establish that the Directive and Morton Memorandum result in an increased financial burden on the state of Mississippi. The 2006 Audit Report provides “a snapshot of the estimated impact of illegal immigrants residing in Mississippi,” including illegal immigrants’ estimated annual contribution to sales tax, estimated annual contribution to income tax, estimated annual education costs, estimated annual healthcare costs, estimated annual remittances to relatives in foreign countries, and known annual public safety costs. Id. at preface, iv. However, because it was written six years prior to the issuance of the Morton Memorandum and the Directive, the report cannot provide any support for Mississippi’s contention that the Directive and the Morton Memorandum result in an increased fiscal burden on the state. See Wyoming, 674 F.3d at 1232 (citation to a study from 1995 did not establish that plaintiffs were suffering a loss as a result of the challenged 2009 rule).
Plaintiffs also rely on statistical data to support their allegation that the Directive and the Morton Memorandum result in an increased fiscal burden on the state of Mississippi. Plaintiffs state that “Directive beneficiaries represent approximately 15% of the illegal aliens in the United States and are likely to represent a similar percentage of the 49,000 illegal aliens in Mississippi.” Pls.’ Resp. Mot. Dismiss 16, ECF No. 30. Between August 15, 2012, and January 17, 2013, the government approved 154,404 requests for Deferred Action for Childhood Arrivals. U.S. Citizen & Immigration Services, “Deferred Action for Childhood Arrivals Process (January 2013),” http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20
30

Data/All%20Form%20Types/DACA/DACA%20Monthly%20Report%20AVer%20II%20PDF.pdf.7 Plaintiffs assert that “[h]undreds, if not thousands, of those illegal aliens likely reside in Mississippi,” and “the State has already suffered fiscal injury by virtue of the fact that those illegal aliens are being permitted to remain in the State.” Pls.’ Resp. Mot. Dismiss 17, ECF No. 30. Even if it is true that many illegal immigrants are permitted to remain in the state of Mississippi pursuant to the Directive and the Morton Memorandum, Plaintiffs have offered only conclusory allegations that those illegal aliens who are permitted to remain would otherwise have been removed, or that there has been a decrease in the total number of removals as a result of the Directive and Morton Memorandum, resulting in an increased fiscal burden on the state of Mississippi.
In support of their allegation that the Directive and Morton Memorandum result in a decreased total number of removals, Plaintiffs have included affidavits from several of the ICE Agent Plaintiffs with their Response to Defendants’ Motion to Dismiss. See generally App. Pls.’ Resp. Mot. Dismiss Exs. 1–4 (Crane, Engle, Doebler, & Martin Affs.), ECF No. 31. In their affidavits, the ICE Agents state that they “have not observed any increase in the removal of dangerous criminal aliens as a result of the Directive or the Morton Memorandum.” Id. Ex. 2 (Engle Aff.), ¶ 21; id. Ex. 3 (Doebler Aff.), ¶ 15; see id. Ex. 1 (Crane Aff.), ¶ 12; see id. Ex. 4 (Martin Aff.), ¶ 20. The inference that Plaintiffs wish the Court to draw from these statements is that there has not been an increased removal of high-priority illegal aliens to correspond with the decreased removal of Directive-eligible illegal aliens, thereby resulting in a net decrease in overall removals and an increased fiscal burden on the state of Mississippi. These statements, however, do not support such
7 http://www.uscis.gov (follow “Resources” tab, select “Reports and Studies” in left menu, select “Immigration Forms Data” in left menu, follow link to “Individual Applications and Petitions,” and select “Deferred Action for Childhood Arrivals Process (January 2013)”).
31

an inference. The affidavits refer to isolated ICE offices in Delaware, Texas, and Utah, and there is no indication that similar observations have been made in Mississippi. See id. Ex. 1 (Crane Aff.), ¶ 2 (West Valley City, Utah); id. Ex. 2 (Engle Aff.), ¶ 2 (Dallas, Texas); id. Ex. 3 (Doebler Aff.), ¶ 1 (Dover, Delaware); id. Ex. 4 (Martin Aff.), ¶ 2 (El Paso, Texas).
In sum, the Court finds that Mississippi’s asserted fiscal injury is purely speculative because there is no concrete evidence that the costs associated with the presence of illegal aliens in the state of Mississippi have increased or will increase as a result of the Directive or the Morton Memorandum. See Wyoming, 674 F.3d at 1231–35 (Wyoming’s alleged loss of tax revenue from a reduced number of snowmobiles in parks was conclusory and based on “speculative economic data,” and therefore insufficient to confer standing. Wyoming did not present any “concrete evidence” that “revenues have decreased or will decrease” with the challenged rule in place.). Accordingly, the Court finds that Mississippi has failed to allege an injury-in-fact sufficient to satisfy the constitutional requirements of standing. The state of Mississippi’s claims are therefore DISMISSED without prejudice to refiling.
B. Civil Service Reform Act Defendants assert in a footnote that this Court lacks jurisdiction because Plaintiffs’ claims are federal employment disputes subject to the Civil Service Reform Act (“CSRA”). See Defs.’ Mot. Dismiss 11 n.3, ECF No. 23 (citing 5 U.S.C. § 7121); Defs.’ Reply Mot. Dismiss 5, ECF No. 33. Defendants assert that Plaintiffs’ challenges to a purported proposed suspension or a purported violation of a collective bargaining requirement to provide proper notice are not properly before the Court because Plaintiffs have not submitted their grievances through the appropriate administrative process as established by the collective bargaining agreement. Defs.’ Mot. Dismiss 11 n.3, ECF No.
32

23 (citing 5 U.S.C. § 7121). Plaintiffs respond that the CSRA does not apply to this case because the adverse employment actions that have occurred are not within the “specified adverse employment actions” defined by the CSRA. Pls.’ Resp. Mot. Dismiss 15–16, ECF No. 30 (citing Elgin v. Dep’t of the Treasury, 132 S. Ct. 2126, 2130 (2012)). Because Defendants’ claim that the CSRA precludes federal-court jurisdiction over Plaintiffs’ claims has been inadequately briefed, the Court defers ruling on it until trial.
C. Venue Alternatively, Defendants assert that the case should be dismissed for improper venue. Defs.’ Mot. Dismiss 24–25, ECF No. 23. Defendants argue that Plaintiff David A. Engle—the only plaintiff who resides in the Northern District of Texas—has filed a frivolous claim or is improperly or collusively joined for the purpose of creating venue in the district. Id. at 24. Defendants contend that Plaintiff Engle cannot establish standing and he should, therefore, be dismissed. Id. at 25. Consequently, because none of the other plaintiffs reside in the Northern District of Texas, Defendants assert that the remaining plaintiffs should be dismissed for improper venue. Id. Plaintiffs respond that Plaintiff Engle’s claim is not frivolous or collusively joined because the Amended Complaint contains sufficient factual allegations to establish Plaintiff Engle’s standing; therefore, venue is proper in the Northern District of Texas because Plaintiff Engle resides in the district. Pls.’ Resp. Mot. Dismiss 24–25, ECF No. 30. The Court concludes that venue is appropriate in the Northern District of Texas. In civil actions against “an officer or employee of the United States or an agency thereof acting in his official capacity or under color of legal authority,” venue is appropriate in the district where “the plaintiff resides if no real property is involved in the action.” 28 U.S.C. § 2391(e)(1)(C).
33

Courts have held that venue is proper as to all plaintiffs if suit is brought in a district where any one or more of the plaintiffs resides. See, e.g., Exxon Corp. v. FTC, 588 F.2d 895, 898–99 (3d Cir. 1978); A.J. Taft Coal Co. v. Barnhart, 291 F. Supp. 1290, 1301–02 (N.D. Ala. 2003) (canvassing cases); Sidney Coal Co. v. Massanari, F. Supp. 2d 755, 766–67, 766 n.9 (E.D. Ky. 2002) (canvassing cases), appeal dismissed, 98 F. App’x 378 (6th Cir. 2004). Because Plaintiff Engle resides in the Northern District of Texas, venue is proper in this district as to all plaintiffs. See App. Pls.’ Resp. Mot. Dismiss Ex. 2 (Engle Aff.), ¶ 1, ECF No. 31.
The Court finds unavailing Defendants’ argument that venue is improper in the Northern District of Texas because Plaintiff Engle’s claims are frivolous or because he was improperly or collusively joined. Defendants essentially argue that because Plaintiff Engle lacks standing, his claims should be dismissed, and the claims of the remaining plaintiffs should be dismissed for improper venue. See Defs.’ Mot. Dismiss 24–25, ECF No. 23. However, as the Court discussed previously, Plaintiffs have pleaded sufficient facts to support Plaintiff Engle’s standing to assert his claims. Therefore, Plaintiff Engle was not improperly or collusively joined, and venue is appropriate in the Northern District of Texas. The portion of Defendants’ Motion to Dismiss based on improper venue is therefore DENIED. IV. CONCLUSION
For the foregoing reasons, the Court hereby GRANTS in part and DENIES in part Defendants’ Motion to Dismiss (ECF No. 23).
Accordingly, it is ORDERED that the State of Mississippi’s claims, by and through Governor Phil Bryant, are DISMISSED without prejudice to refiling.
34

It is further ORDERED that Plaintiffs’ third cause of action challenging the issuance of employment authorization is DISMISSED without prejudice to refiling.
SO ORDERED on this 24th day of January, 2013. _____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE
35

 
 Case 3:12-cv-03247-O Document 75 Filed 07/31/13 Page 1 of 7 PageID 1323

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

§

CHRISTOPHER L. CRANE et al.,

§

§

Plaintiffs,

§

§

v.

§

§

JANET NAPOLITANO, in her official

§

capacity as Secretary of Homeland Security, §

et al.,

§

§

Defendants.

§

§

Civil Action No. 3:12-cv-03247-O

ORDER

Pending before the Court is Plaintiffs’ Application for Preliminary Injunctive Relief (ECF No. 24).1 The Court held a hearing on this matter on April 8, 2013, and ordered the parties to submit

additional briefing addressing the effect, if any, of the Collective Bargaining Agreement and the

Civil Service Reform Act (“CSRA”) on the Court’s jurisdiction to hear the case. See Electronic

Minute Entry, Apr. 8, 2013; Mem. Op. & Order 37, Apr. 23, 2013, ECF No. 58. The parties

complied with the Court’s request.

Accordingly, now before the Court are Plaintiffs’ Amended Supplemental Brief in Support

of Plaintiffs’ Application for Preliminary Injunctive Relief (ECF No. 63), Defendants’ Response to

Plaintiffs’ Supplemental Memorandum on the CSRA (ECF No. 67), and Plaintiffs’ Supplemental

Reply Brief Regarding the CSRA (ECF No. 71). Also before the Court are Defendants’

Supplemental Memorandum on Why the CSRA Precludes Plaintiffs’ Requested Relief (ECF No.

60), Plaintiffs’ Responsive Supplemental Brief Regarding the CSRA (ECF No. 68), and Defendants’

1 “Plaintiffs” throughout this Order refers to the ICE agent plaintiffs.

Case 3:12-cv-03247-O Document 75 Filed 07/31/13 Page 2 of 7 PageID 1324
Reply to Plaintiffs’ Responsive Supplemental Brief Regarding the CSRA (ECF No. 70). After considering the foregoing the Court concludes as follows: I. FACTUAL & PROCEDURAL BACKGROUND
The Court set forth the factual and procedural background of this case in detail in its Memorandum Opinion and Order granting in part and denying in part Defendants’ Motion to Dismiss and its Memorandum Opinion and Order deferring ruling on Plaintiffs’ Application for Preliminary Injunction. See Mem. Op. & Order 1–4, Jan. 24, 2013, ECF No. 41; Mem. Op. & Order 2–5, Apr. 23, 2013, ECF No. 58. In its previous Order, the Court found that Congress’s use of the word “shall” in Section 1225(b)(2)(A) of the Immigration and Nationality Act imposes a mandatory obligation on immigration officers to initiate removal proceedings against aliens they encounter who are not “clearly and beyond a doubt entitled to be admitted.” Mem. Op. & Order 15–22, Apr. 23, 2013, ECF No. 58; see 8 U.S.C. § 1225(b)(2)(A); see also In re: Application of USA for Historical Cell Site Data, No. 11-20884, slip op. at 10–11 (5th Cir. July 30, 2013) (finding that the word “shall” in Section 2703(d) of the Stored Communications Act imposes a mandatory duty on courts to issue an order for disclosure when certain prerequisites are satisfied). Therefore, the Court concluded that Plaintiffs were likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to congressional mandate. However, the Court finds that Congress has precluded Plaintiffs from pursuing their claims in this Court by enacting the CSRA. Therefore, the Court finds that this case should be and is hereby DISMISSED without prejudice for lack of subject-matter jurisdiction. II. ANALYSIS
Plaintiffs contend that the Court retains jurisdiction under 28 U.S.C. § 1331 to hear Plaintiffs’
2

Case 3:12-cv-03247-O Document 75 Filed 07/31/13 Page 3 of 7 PageID 1325
Administrative Procedure Act and Declaratory Judgment Act claims because the threatened threeday suspension of Plaintiff James Doebler is outside the scope of the CSRA’s remedial scheme. Pls.’ Am. Supplemental Br. Supp. Appl. Prelim. Inj. 1–4, ECF No. 63; Pls.’ Supplemental Reply Br. 8–9, ECF No. 71. Plaintiffs also contend that the Merit Systems Protection Board lacks jurisdiction to hear Plaintiffs’ claims because Plaintiffs have yet to suffer an adverse action within the scope of the Merit Systems Protection Board’s jurisdiction, and the CSRA does not extend to cases involving potential future adverse actions. Pls.’ Responsive Supplemental Br. Regarding CSRA 1–2, 7, ECF No. 68. Additionally, Plaintiffs contend the Merit Systems Protection Board does not have the authority to issue an injunction against an allegedly unconstitutional and unlawful policy. Id. at 2–5.
Defendants argue that this Court lacks subject-matter jurisdiction to resolve Plaintiffs’ claims because they are employment disputes and the CSRA provides a comprehensive and exclusive scheme for resolving employment disputes brought by federal employees against the federal government. Defs.’ Supplemental Mem. on CSRA 2–11, ECF No. 60. Defendants further contend that Plaintiffs’ asserted claims are within the scope of the CSRA’s exclusive and comprehensive administrative and judicial remedies; therefore, Plaintiffs are bound to follow the procedures set forth in the CSRA and this Court lacks jurisdiction. See Defs.’ Supplemental Mem. on CSRA 10–11, ECF No. 60; Defs.’ Resp. Pls.’ Supplemental Br. 7–8, ECF No. 67; Defs.’ Reply Regarding CSRA 1–3, 7–8, ECF No. 70. The Court finds that the CSRA precludes review of Plaintiffs’ claims in this Court.
Congress enacted the CSRA as “a comprehensive system for reviewing personnel action taken against federal employees.” United States v. Fausto, 484 U.S. 439, 455 (1988); see Bush v. Lucas, 462 U.S. 367, 368, 388–90 (1983). The CSRA’s remedies are “the comprehensive and
3

Case 3:12-cv-03247-O Document 75 Filed 07/31/13 Page 4 of 7 PageID 1326
exclusive procedures for settling work-related controversies between federal civil-service employees and the federal government.” Rollins v. Marsh, 937 F.2d 134, 139 (5th Cir. 1991) (citing Fausto, 484 U.S. 439; Bush, 462 U.S. 367). Thus, when a particular employee’s class or asserted claim has been excluded from the CSRA’s framework for administrative and judicial review of adverse personnel actions, that excluded employee cannot seek redress in a federal district court. See Fausto, 484 U.S. at 455; Graham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir. 2004) (finding that the CSRA precluded judicial review of a federal employee’s claim challenging a letter of censure, which was “below the CSRA minima for both major and minor adverse employment actions”); Carducci v. Regan, 714 F.2d 171, 173–75 (D.C. Cir. 1983) (finding that judicial review was unavailable under the Administrative Procedure Act with respect to employment claims as to which the CSRA provided no relief to anyone, because the alleged adverse actions were too minor); Galvin v. FDIC, 48 F.3d 531, at *4 (5th Cir. 1995) (per curiam) (not selected for publication) (noting that the lack of a remedy under the CSRA precludes a plaintiff “from bringing suit challenging the personnel action in federal court”). Furthermore, the CSRA precludes district-court adjudication of a covered employee’s challenge to a covered adverse employment action, even when the employee raises constitutional challenges to federal statutes and seeks equitable relief. Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2132–33, 2139 (2012); see Dooley v. Principi, 250 F. App’x 114, 116 (5th Cir. 2007) (per curiam) (not selected for publication) (noting that “[t]he CSRA provides the exclusive remedy for claims against federal employers, thereby precluding any causes of action relating to employment disputes covered by the statute” (citing Grisham v. United States, 103 F.3d 24, 26 (5th Cir. 1997))).
Here, Plaintiffs’ injury is based on being compelled to violate a federal statute upon pain of
4

Case 3:12-cv-03247-O Document 75 Filed 07/31/13 Page 5 of 7 PageID 1327
adverse employment action. See Pls.’ Resp. Mot. Dismiss 2–7, ECF No. 30; Mem. Op. & Order 18–22, Jan. 24, 2013, ECF No. 41. Plaintiffs allege that Defendants have taken disciplinary action against Plaintiff James D. Doebler and threatened to take disciplinary action against the remaining plaintiffs if they fail to comply with the Directive and Morton Memorandum by issuing Notices to Appear to Directive-eligible aliens as required by law. Pls.’ Am. Compl. ¶¶ 6, 49–51, ECF No. 15; App. Pls.’ Resp. Mot. Dismiss Ex. 3 (Doebler Aff.), ¶¶ 2–9, ECF No. 31; Id. Ex. 2 (Engle Aff.), ¶¶ 8, 20; see 8 U.S.C. § 1225(b)(2)(A); Morton, John, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (the “Morton Memorandum”), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf; see also Pls.’ Am. Compl. Ex. 1 (Napolitano, Janet, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (the “Directive”)), ECF No. 15-1. Plaintiffs argue that they should not be disciplined for failing to comply with the Directive and Morton Memorandum because those documents and the Deferred Action for Childhood Arrivals program they implement conflict with the Immigration and Nationality Act and violate the Constitution and the Administrative Procedure Act. Pls.’ Am. Compl. ¶¶ 48–49, 67–80, 92–116, ECF No. 15; see 8 U.S.C. § 1225(b)(2)(A). Plaintiffs seek a declaratory judgment from the Court finding the Directive unlawful and in violation of federal statutes and the Constitution, as well as an injunction preventing the implementation of the Directive and prohibiting Defendants from taking disciplinary action against Plaintiffs for failure to comply with the Directive. Pls.’ Am. Compl. ¶¶ A–F, ECF No. 15.
Plaintiffs—federal employees—assert claims against the federal government based on retaliatory acts, or threats thereof, taken by their supervisors. Although they bring their dispute
5

Case 3:12-cv-03247-O Document 75 Filed 07/31/13 Page 6 of 7 PageID 1328
pursuant to the United States Constitution and the Administrative Procedure Act, their claims are
based on their challenge to the Deferred Action for Childhood Arrivals program after Plaintiffs’ non-
compliance with the program led to the threat of workplace disciplinary action against them. The
above-referenced authorities command that this dispute be governed by the CSRA’s comprehensive
and exclusive remedial scheme provided by Congress. Therefore, this Court does not have subjectmatter jurisdiction to address Plaintiffs’ claims.2 While the Court finds that Plaintiffs are likely to
succeed on the merits of their claim challenging the Directive and Morton Memorandum as contrary
to the provisions of the Immigration and Nationality Act, see generally Mem. Op. & Order, Apr. 23,
2013, ECF No. 58, Congress has determined that this Court does not have jurisdiction over Plaintiffs’ disputes. As a result, the Court must dismiss Plaintiffs’ claims without prejudice.3
The Court notes that this case has been pending for several months, and the preclusive effect
of the CSRA on the Court’s jurisdiction was not fully addressed until the Court ordered the parties
to submit additional briefing. See Mem. Op. & Order 36–37, Apr. 23, 2013, ECF No. 58.
2 The Court finds it unnecessary to determine whether Plaintiffs have an available remedy under the CSRA. The Supreme Court has stated that Congress enacted the CSRA as a comprehensive and exclusive scheme for resolving federal employment disputes. Fausto, 484 U.S. at 455. If the CSRA provides a remedy for Plaintiffs’ challenged disciplinary action, then the CSRA’s remedy is Plaintiffs’ exclusive avenue for redressing their claims. See Elgin, 132 S. Ct. at 2132–33. See, e.g., 5 U.S.C. §§ 1214(a)(1), 1214(a)(3), 2302(a)(1), 2302(a)(2)(A)(iii), 2302(b)(9)(D) (providing that certain federal employees may seek corrective action from the Office of Special Counsel when a supervisory employee takes or threatens to take “disciplinary or corrective action” against the employee for “refusing to obey an order that would require the individual to violate a law”). If the CSRA does not provide a remedy for Plaintiffs’ challenged disciplinary action (for example, because the disciplinary action is too minor), then a federal district court cannot provide relief because it would be affording a greater remedy than that provided by the CSRA. See Fausto, 484 U.S. at 455; Graham, 358 F.3d at 935. Under either scenario, this Court does not have subjectmatter jurisdiction over Plaintiffs’ federal employment disputes.
3 Given the Court’s determination that the CSRA deprives the Court of subject-matter jurisdiction over Plaintiffs’ claims, the Court finds it unnecessary to address the preclusive effect, if any, of the Collective Bargaining Agreement on Plaintiffs’ claims.
6

Case 3:12-cv-03247-O Document 75 Filed 07/31/13 Page 7 of 7 PageID 1329 Defendants raised this issue in a footnote in their Motion to Dismiss and addressed the argument in a few sentences in their reply brief. See Defs.’ Mot. Dismiss 11 n.3, ECF No. 23; Defs.’ Reply Mot. Dismiss 5, ECF No. 33. They again addressed this issue in their opposition to Plaintiffs’ Application for Preliminary Injunctive Relief, but in no greater detail than at the motion-to-dismiss stage. See Defs.’ Opp’n Appl. Prelim. Inj. 16, ECF No. 34. The Court regrets that Defendants unreasonably expended so much of this Court’s time before this issue could be fully addressed and resolved. III. CONCLUSION
Based on the foregoing, it is ORDERED that Plaintiffs’ claims are DISMISSED without prejudice for lack of subject-matter jurisdiction.
SO ORDERED on this 31st day of July, 2013.
_____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE
7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

§

CHRISTOPHER L. CRANE et al.,

§

§

Plaintiffs,

§

§

v.

§

§

JANET NAPOLITANO, in her official

§

capacity as Secretary of Homeland Security, §

et al.,

§

§

Defendants.

§

§

Civil Action No. 3:12-cv-03247-O

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiffs’ Application for Preliminary Injunctive Relief (ECF No. 24),

Brief in Support of Plaintiffs’ Application for Preliminary Injunctive Relief (ECF No. 26),

Defendants’ Opposition to Plaintiffs’ Application for Preliminary Injunctive Relief (ECF No. 34),

Plaintiffs’ Reply Brief in Support of Plaintiffs’ Application for Preliminary Injunctive Relief (ECF

No. 36), and Appendix to Plaintiffs’ Reply in Support of Application for Preliminary Injunction

(ECF No. 37). The Court held a hearing on this matter on April 8, 2013. See Electronic Minute

Entry, Apr. 8, 2013, ECF No. 53. For the reasons set forth below, the Court concludes that Plaintiffs

are likely to succeed on the merits of their claim that the Directive and related provisions of the

Morton Memorandum violate 8 U.S.C. § 1225(b)(2)(A), but the Court defers ruling on Plaintiffs’

Application for Preliminary Injunction (ECF No. 24) until the parties have provided the Court with

additional briefing.

1

I. FACTUAL AND PROCEDURAL BACKGROUND The United States Department of Homeland Security (“DHS”) is a Cabinet-level department
of the United States government created in 2002 for the purpose of coordinating and unifying national homeland security efforts. Creation of the Department of Homeland Security, http://www.dhs.gov/creation-department-homeland-security (last visited Apr. 23, 2013). Defendant Janet Napolitano is the current Secretary of DHS. Pls.’ Am. Compl. ¶ 22, ECF No. 15. DHS is charged with, among other things, protecting our nation’s border security, cybersecurity, and economic security, preventing human trafficking and terrorism, and safeguarding civil rights and civil liberties. Topics, http://www.dhs.gov/topics (last visited Apr. 23, 2013). DHS is also responsible for overseeing citizenship and immigration in the United States. Id. The United States Citizenship and Immigration Services (“USCIS”) oversees lawful immigration in the United States. Citizenship & Immigration Overview, http://www.dhs.gov/topic/citizenship-and-immigrationoverview (last visited Apr. 23, 2013). Defendant Alejandro Mayorkas is the current Director of USCIS. Pls.’ Am. Compl. ¶ 24, ECF No. 15. USCIS grants immigration and citizenship benefits, promotes an awareness and understanding of citizenship, and ensures the integrity of our immigration system. Citizenship & Immigration Overview, http://www.dhs.gov/topic/citizenshipand-immigration-overview (last visited Apr. 23, 2013). The United States Immigration and Customs Enforcement (“ICE”) is the principal investigative arm of DHS, and its primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration. Overview, http://www.ice.gov/about/overview (last visited Apr. 23, 2013). Defendant John Morton is the current Director of ICE. Pls.’ Am. Compl. ¶ 23, ECF No. 15. ICE receives an annual appropriation
2

from Congress to remove individuals who are unlawfully present in the United States. Immigration Enforcement Overview, http://www.dhs.gov/topic/immigration-enforcement-overview (last visited Apr. 23, 2013).
On June 17, 2011, Defendant Morton issued a Memorandum entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (the “Morton Memorandum”). Pls.’ Am. Compl. ¶ 28, ECF No. 15. The Morton Memorandum provides ICE personnel “guidance on the exercise of prosecutorial discretion to ensure that the agency’s immigration enforcement resources are focused on the agency’s enforcement priorities,” which include “the promotion of national security, border security, public safety, and the integrity of the immigration system.” Morton Mem. at 1, 2, available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretionmemo.pdf. The Morton Memorandum sets out several factors that ICE officers, agents, and attorneys should consider when determining whether an exercise of prosecutorial discretion may be warranted for a particular alien. See Morton Mem. at 4–5, available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
On June 15, 2012, Defendant Napolitano issued a Directive entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (the “Directive”). Pls.’ Am. Compl. ¶¶ 2, 29, ECF No. 15; Pls.’ Am. Compl. Ex. 1 (Directive), ECF No. 15-1. The Directive sets forth to what extent, in the exercise of prosecutorial discretion, DHS should enforce immigration laws “against certain young people who were brought to this country as children and know only this country as home.” Pls.’ Am. Compl. Ex. 1 (Directive), at 1, ECF No. 15-1. The Directive instructs ICE officers to refrain from placing certain aliens who are unlawfully
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present in the United States into removal proceedings. It also directs ICE officers to facilitate
granting deferred action to aliens who are unlawfully present in the United States and are already in
removal proceedings but not yet subject to a final order of removal. Pls.’ Am. Compl. ¶ 2, ECF No.
15; Pls.’ Am. Compl. Ex. 1 (Directive), at 2, ECF No. 15-1. The Directive also instructs USCIS to
accept applications to determine whether the individuals who receive deferred action are qualified
for work authorization during the period of deferred action. Pls.’ Am. Compl. ¶ 2, ECF No. 15;
Pls.’ Am. Compl. Ex. 1 (Directive), at 3, ECF No. 15-1. To qualify for deferred action under the
Directive, the alien must satisfy the following criteria:
C came to the United States under the age of sixteen; C has continuously resided in the United States for at least five
years preceding the date of [the Directive] and is present in the United States on the date of [the Directive]; C is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; C has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and C is not above the age of thirty.
Pls.’ Am. Compl. Ex. 1 (Directive), at 1, ECF No. 15-1.
In July 2012, DHS issued the “ERO Supplemental Guidance: Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States as Children,” which directs
DHS personnel to implement the terms of the Directive. Pls.’ Am. Compl. ¶ 30, ECF No. 15. In
early August 2012, DHS issued a document entitled “National Standard Operating Procedures
(SOP): Deferred Action for Childhood Arrivals (DACA) (Form I-821D and Form I-765),” which
explains how DHS will process applications for deferred action under the Directive. Id. ¶ 31. On
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August 15, 2012, DHS began accepting requests for consideration of deferred action and applications
for employment authorization pursuant to the Directive. Id. ¶ 32.
Several ICE Deportation Officers and Immigration Enforcement Agents1 filed this lawsuit
on August 23, 2012, to challenge the constitutional and statutory validity of the Directive and the
Morton Memorandum. See generally Pls.’ Compl., ECF No. 1; Pls.’ Am. Compl., ECF No. 15.
Plaintiffs assert that the Directive violates (1) federal statutes requiring the initiation of removals;
(2) federal law by conferring a non-statutory form of benefit—deferred action—to more than 1.7
million aliens, rather than a form of relief or benefit that federal law permits on such a large scale;
(3) the constitutional allocation of legislative power to Congress; (4) the Article II, Section 3,
constitutional obligation of the Executive to take care that the laws are faithfully executed; and
(5) the Administrative Procedure Act through conferral of a benefit without regulatory
1 Plaintiff Christopher L. Crane is an ICE Deportation Officer in West Valley City, Utah. Pls.’ Am. Compl. ¶ 9, ECF No. 15. Plaintiff David A. Engle is an ICE Immigration Enforcement Agent in Dallas, Texas. Id. ¶ 10. Plaintiff Anastasia Marie Carroll is an ICE Immigration Enforcement Agent in El Paso, Texas. Id. ¶ 11. Plaintiff Ricardo Diaz is an ICE Immigration Enforcement Agent in El Paso, Texas. Id. ¶ 12. Plaintiff Lorenzo Garza is an ICE Immigration Enforcement Agent in Los Fresnos, Texas. Id. ¶ 13. Plaintiff Felix Luciano is an ICE Immigration Enforcement Agent in San Diego, California. Id. ¶ 14. Plaintiff Tre Rebstock is an ICE Immigration Enforcement Agent in Huntsville, Texas. Id. ¶ 15. Plaintiff Fernando Silva is an ICE Immigration Enforcement Agent in El Paso, Texas. Id. ¶ 16. Plaintiff Samuel Martin is an ICE Immigration Enforcement Agent in El Paso, Texas. Id. ¶ 17. Plaintiff James D. Doebler is an ICE Deportation Officer in Dover, Delaware. Id. ¶ 18. The State of Mississippi, by and through Governor Phil Bryant, was originally an additional plaintiff in this lawsuit, but the Court dismissed its claims for lack of standing. See Order, Jan. 24, 2013, ECF No. 41. The Court found that the State of Mississippi lacked standing because its asserted fiscal injury was conclusory and based on purely speculative economic data. Id. at 32. In contrast, the Court found that the individual plaintiffs satisfied the constitutional requirements of standing with respect to the Directive and related provisions of the Morton Memorandum that instruct them to violate what they believe to be their statutory obligations, and they face a sufficiently concrete threat of disciplinary action if they violate the commands of the Directive by arresting or issuing a Notice to Appear in removal proceedings to a Directive-eligible alien. Id. at 21–22. Accordingly, this Order will address Plaintiffs’ Application for Preliminary Injunction only as it pertains to the ICE Deportation Officers and ICE Immigration Enforcement Agents (collectively, “Plaintiffs”).
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implementation.2 Pls.’ Am. Compl. ¶¶ 67–80, 92–116, ECF No. 15. Plaintiffs challenge the
portions of the Directive and Morton Memorandum that require ICE officers to exercise
prosecutorial discretion and defer action against aliens who satisfy the Directive’s criteria.
Plaintiffs contend that the Directive commands ICE officers to violate federal law and to violate their oaths to uphold and support federal law.3 Id. ¶¶ 4, 37–46. As a result, Plaintiffs have
expressed their desire not to follow the Directive, but they believe they will be disciplined or suffer
other adverse employment consequences if they arrest or issue a Notice to Appear in removal proceedings (“NTA”)4 to an alien who satisfies the factors for deferred action set out in the Directive.
Id. ¶ 49. Plaintiffs seek a declaratory judgment from this Court finding the Directive unlawful and
in violation of the Constitution. Pls.’ Am. Compl. ¶¶ A–E, ECF No. 15. Plaintiffs correspondingly
request the Court to vacate the Directive and relevant provisions of the Morton Memorandum. Id.
Plaintiffs ultimately seek a permanent injunction preventing the implementation of the Directive and
preventing DHS from taking any adverse action against Plaintiffs for failure to follow the Directive.
Id. ¶ F.
Plaintiffs filed their Application for Preliminary Injunction on November 28, 2012, asking
the Court to preliminarily enjoin Defendants from implementing and enforcing the Directive and
2 In their Amended Complaint, Plaintiffs additionally allege that the Directive violates federal law by conferring the legal benefit of employment authorization without any statutory basis and under the false pretense of “prosecutorial discretion.” Pls.’ Am. Compl. ¶ 81–91, ECF No. 15. However, the Court dismissed this cause of action for lack of standing. See Order, Jan. 24, 2013, ECF No. 41. Accordingly, this Order will address Plaintiffs’ Application for Preliminary Injunction only as it pertains to the remaining causes of action.
3 The specific provisions of federal law at issue will be discussed later in this Order. See infra Part III.A.1.
4 An NTA is a legal document that initiates removal proceedings against an alien. See 8 U.S.C. § 1229; 8 C.F.R. § 239.1.
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related provisions of the Morton Memorandum. See generally Pls.’ Appl. Prelim. Inj., ECF No. 24. Defendants filed their Opposition on December 19, 2012, and Plaintiffs filed their Reply on January 2, 2013. See generally Defs.’ Opp’n Appl. Prelim. Inj., ECF No. 34; Pls.’ Reply Appl. Prelim. Inj., ECF No. 36. The Court held an evidentiary hearing on April 8, 2013.5 See Electronic Minute Entry, Apr. 8, 2013, ECF No. 53. Accordingly, the issues have been briefed by the parties and this matter is ripe for determination. II. LEGAL STANDARD
To obtain preliminary injunctive relief, a movant “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008); Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). A preliminary injunction “is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion.” White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)); see also Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003). If the movant fails to carry its burden on any one of the four elements, the court must deny the request for preliminary injunctive relief. See Gonannies, Inc. v. Goaupair.com, Inc., 464 F. Supp. 2d 603, 607 (N.D. Tex. 2006). Even when the
5 The Court delayed consideration of Plaintiffs’ Application for Preliminary Injunction while it examined the complicated issue of standing. See generally Order, Jan. 24, 2013, ECF No. 41. Additionally, counsel for Defendants sought a delay based on personal obligations. See Unopposed Mot. Reschedule Date Pls.’ Prelim. Inj. Hr’g, ECF No. 48; Order Setting Hr’g, Feb. 11, 2013, ECF No. 49.
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movant carries its burden of persuasion on all of the four factors for obtaining a preliminary injunction, the decision to grant or deny preliminary injunctive relief is left to the sound discretion of the district court. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985) (citing Canal, 489 F.2d at 572). “The decision to grant a preliminary injunction is to be treated as the exception rather than the rule.” Id. A movant who obtains a preliminary injunction must post a bond to secure the non-movant against any wrongful damages it suffers as a result of the injunction. Fed. R. Civ. P. 65(c). III. ANALYSIS
Plaintiffs filed their Application for Preliminary Injunction on November 28, 2012. Plaintiffs seek an injunction preventing Defendants from implementing and enforcing the Directive and related provisions of the Morton Memorandum until the Court fully decides the lawfulness of those documents. Pls.’ Appl. Prelim. Inj. 1–2, ECF No. 24. The Court will address each element required to obtain a preliminary injunction in turn.
A. Likelihood of Success on the Merits To secure a preliminary injunction, Plaintiffs must establish that there is a substantial likelihood that they will succeed on the merits of their claims. See Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). “It is not necessary for Plaintiffs to prove to an absolute certainty that they will prevail on the merits.” Placid Oil Co. v. U.S. Dep’t of Interior, 491 F. Supp. 895, 905 (N.D. Tex. 1980). Rather, Plaintiffs must raise “questions going to the merits so serious, substantial, and difficult and doubtful, as to make them a fair ground for litigation.” Id. (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953)). They must present a prima facie case, but need not show they are certain to win. See Janvey, 647 F.3d at 595–96 (citing 11A Charles Alan
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Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.3 (2d ed. 1995)). A “more than negligible chance of success” is sufficient to obtain a preliminary injunction. Compact Van Equip. Co. v. Leggett & Platt, Inc., 566 F.2d 952, 954 (5th Cir. 1978). The Court will begin with an analysis of what Section 1225 of the Immigration and Nationality Act (“INA”)6 requires, because that statute is central to all of Plaintiffs’ causes of action.
1. 8 U.S.C. § 1225 Plaintiffs assert that the Directive and related provisions of the Morton Memorandum expressly violate federal statutes requiring the initiation of removal proceedings. Br. Supp. Pls.’ Appl. Prelim. Inj. 3–7, ECF No. 26. Specifically, Plaintiffs assert that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) requires immigration officers to initiate removal proceedings when they encounter illegal immigrants who are not “clearly and beyond a doubt entitled to be admitted,” and that any “prosecutorial discretion” can only be exercised after removal proceedings have been initiated. See 8 U.S.C. § 1225; Br. Supp. Pls.’ Appl. Prelim. Inj. 4, 5, ECF No. 26. Plaintiffs assert that Defendant Napolitano’s authority under 8 U.S.C. § 1103(a)(5) as Secretary of Homeland Security to enforce the immigration laws cannot be construed to authorize her to order her employees to violate the requirements of federal law in 8 U.S.C. § 1225. Id. at 5. Defendants respond that 8 U.S.C. § 1225(b)(2)(A) only applies to aliens arriving in the United States at a port of entry, rather than to any illegal alien that immigration officers encounter
6 The statutory provision at issue in the present case is Section 1225 of Title 8 of the United States Code. Title 8 of the United States Code contains the provisions of the INA. This particular statutory provision corresponds to Section 235 of the INA, and it is often referred to as Section 235 in opinions from the Board of Immigration Appeals and in the immigration regulations located in Title 8 of the Code of Federal Regulations. The United States Supreme Court, in contrast, provides citations to the United States Code when it addresses immigration law. See, e.g., Arizona v. United States, 132 S. Ct. 2492, 2502 (2012). For simplicity and clarity, the Court will refer to this provision of the INA as “Section 1225.”
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who has not been lawfully admitted to the United States. Defs.’ Opp’n Appl. Prelim. Inj. 17–19, ECF No. 34. Defendants further argue that the INA grants broad discretion to the Executive Branch, including the decision whether to initiate removal proceedings, so even if 8 U.S.C. § 1225(b)(2)(A) applies at places other than a port of entry, it still does not mandate the initiation of removal proceedings. Id. at 14. The Court finds that 8 U.S.C. § 1225(b)(2)(A) is not limited to aliens arriving in the United States at a port of entry, and it mandates the initiation of removal proceedings whenever an immigration officer encounters an illegal alien who is not “clearly and beyond a doubt entitled to be admitted.”
a. The Scope of 8 U.S.C. § 1225(b)(2)(A) Section 1225 states: “An alien present in the United States who has not been admitted or who arrives in the United States . . . shall be deemed for purposes of this chapter an applicant for admission.” 8 U.S.C. § 1225(a)(1). In the INA, the terms “admission” and “admitted” mean “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Id. § 1101(a)(13)(A). An alien “who has not been admitted,” therefore, is an alien who has not lawfully entered into the United States “after inspection and authorization by an immigration officer.” See id. By the Directive’s terms, any Directive-eligible alien would be one “who has not been admitted” and is therefore deemed an “applicant for admission” for purposes of Section 1225. See generally Pls.’ Am. Compl. Ex. 1 (Directive), ECF No. 15-1. Section 1225 further provides that “[a]ll aliens . . . who are applicants for admission . . . shall be inspected by immigration officers.” 8 U.S.C. § 1225(a)(3). Subject to certain exceptions not relevant to the present case, when an immigration officer encounters “an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt
10

entitled to be admitted, the alien shall be detained for a proceeding under [S]ection 1229a of this title.” Id. § 1225(b)(2)(A) (emphasis added). The proceedings under Section 1229a are removal proceedings in the United States Immigration Courts.7 Id. § 1229a.
Defendants contend that Section 1225(b)(2)(A)’s statement that the “alien shall be detained” applies only to applicants for admission who are “seeking admission” to the United States, as distinguished from aliens who are already present and merely encounter an immigration officer in the course of the officer carrying out his regular duties. Defs.’ Opp’n Appl. Prelim. Inj. 17, ECF No. 34 (quoting 8 U.S.C. § 1225(b)(2)(A)). They assert that, while “aliens who are present in the United States and have not been admitted are deemed ‘applicants for admission’ pursuant to 8 U.S.C. § 1225(a)(1), they are not necessarily ‘seeking admission’ for purposes of [S]ection 1225(b)(2).” Id. at 17–18. Defendants contend that the phrase “alien seeking admission” means only those aliens coming or attempting to come into the United States at a port of entry. Id. at 18. The Court finds that the phrase “alien seeking admission” in Section 1225(b)(2)(A) is not limited to aliens arriving in the United States at a port of entry.
When construing a statute, the starting point should be the language of the statute itself, “for ‘if the intent of Congress is clear, that is the end of the matter.’” Arif v. Mukasey, 509 F.3d 677, 681 (5th Cir. 2007) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409–10 (1993)). Because the meaning of certain words or phrases “may only become evident when placed in context . . . , the words of a statute must be read in their context and with a view to their place in the overall statutory
7 Service of an NTA initiates removal proceedings against an alien. See 8 U.S.C. § 1229; 8 C.F.R. § 239.1. Once an NTA is issued, the government determines whether to detain the alien or release him on bond or his own recognizance. The issues presented in this case concern only the issuance of an NTA and do not involve the decision to detain an alien or release him on bond or his own recognizance.
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scheme.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007) (quoting
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)). With respect to the INA,
the Secretary of Homeland Security has the power to administer the statutory scheme, which includes
the power to pass regulations elucidating specific provisions of the INA. See 8 U.S.C.
§ 1103(a)(1), (3); see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
843–44 (1984). “[I]f the statute is silent or ambiguous with respect to the specific issue,” the court
must determine if the agency has provided an interpretation or clarification of the statute. See
Chevron, 467 U.S. at 843–44. If the agency has provided such an interpretation, “the question for
the court is whether the agency’s answer is based on a permissible construction of the statute.” Id.
at 843.
Defendants ask the Court to construe Section 1225(b)(2)(A) as only applying to aliens who
are coming or attempting to come into the United States at a port of entry. See Defs.’ Opp’n Appl.
Prelim. Inj. 18, ECF No. 34. Defendants have not provided the Court with the statutory construction
analysis that would lead to such a conclusion.8 See id. at 17–19. Accordingly, the Court will
proceed with its own statutory construction analysis.
8 Given their cursory analysis of the issue, the Court questions whether Defendants have sufficiently presented the statutory construction issue to the Court for determination. For example, Defendants mention in a footnote that Section 1225 typically applies to aliens encountered at a port of entry or near the border, while Section 1226 applies to aliens encountered in the interior of the United States, but they do not provide citations to any sources that would lead the Court to that conclusion. See Defs.’ Opp’n Appl. Prelim. Inj. 17 n.14. Defendants also state that the phrase “alien seeking admission” has been interpreted to mean “only those aliens coming or attempting to come into the United States at a port of entry,” but they again fail to cite any sources that would lead the Court to that conclusion. See id. at 18 (inviting the Court to compare Section 1225(b)(1)(A)(i) with Section 1225(b)(1)(A)(iii), but providing no analysis). In the Fifth Circuit, a party waives any issues that are inadequately briefed. United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001); Regmi v. Gonzales, 157 F. App’x 675, 676 (5th Cir. 2005) (per curiam). The parties must provide citations to relevant authority in support of their propositions. See Castro v. McCord, 259 F. App’x 664, 666 (5th Cir. 2007). Given the importance of the issue, the Court will address Defendants’ arguments in spite of their minimal analysis and citations in support of their proposed construction of Section 1225(b)(2)(A).
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The Court finds that the language of the statute itself does not limit the application of Section 1225(b)(2)(A) to aliens coming or attempting to come into the United States at a port of entry. Section 1225(b) applies generally to “applicants for admission,” which includes aliens “present in the United States who [have] not been admitted.” 8 U.S.C. § 1225(a)(1), (b). Section 1225(b)(1) applies to two categories of aliens: First, “aliens arriving in the United States,” and second, aliens who have not been admitted or paroled into the United States and who have not affirmatively shown that they have been physically present in the United States continuously for two years prior to the date that an immigration officer determines they are inadmissible. Id. § 1225(b)(1)(A)(i), (iii). Section 1225(b)(2) applies to a separate category of aliens, described simply as “other aliens.” Id. § 1225(b)(2). Section 1225(b)(2)(A) states that “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained.” Id. § 1225(b)(2)(A). Nothing in the language of Section 1225 limits the application of Section 1225(b)(2)(A) to aliens who are coming or attempting to come into the United States at a port of entry, and the Court has been unable to locate a statute providing a definition of the phrase “alien seeking admission.” Because the language of the statute itself does not shed light on the meaning of “alien seeking admission,” the Court will turn to relevant regulations that the Secretary of Homeland Security has promulgated in an effort to interpret Section 1225.
Regulations located at 8 C.F.R. §§ 235.1–235.12 relate to Section 1225 of the INA. Defendants rely specifically on 8 C.F.R. § 235.3(c) to support their proposition that Section 1225(b)(2)(A) applies only to aliens coming or attempting to come into the United States at a port of entry. See Defs.’ Opp’n Appl. Prelim. Inj. 18–19, ECF No. 34. That regulation states that “any
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arriving alien who appears to the inspecting officer to be inadmissible, and who is placed in removal
proceedings pursuant to [8 U.S.C. § 1229a] shall be detained in accordance with [8 U.S.C.
§ 1225(b)].” 8 C.F.R. § 235.3(c). An “arriving alien” is defined as “an applicant for admission
coming or attempting to come into the United States at a port of entry.” 8 C.F.R. § 1.2. While this
regulation applies Section 1225(b) to “arriving aliens,” it does not limit the application of Section 1225(b)(2)(A) to “arriving aliens.”9 Notably, throughout the INA and related regulations, the terms
“arriving alien” and “alien arriving in the United States” are used to refer to aliens coming or
attempting to come into the United States at a port of entry. If Congress intended to limit the
application of Section 1225(b)(2)(A) to aliens coming or attempting to come into the United States
at a port of entry, it would have used the term “arriving alien” or “alien arriving in the United States”
instead of the term “seeking admission.” Because Congress has not done so, the Court rejects
Defendants’ proposed interpretation of Section 1225(b)(2)(A) and finds that Section 1225(b)(2)(A)
applies to “applicants for admission”—that is, aliens who have not lawfully entered the United States
after inspection and authorization by an immigration officer—whether they are arriving in the United
States at a port of entry or are encountered by immigration officers elsewhere in the United States.
Next, the Court must determine whether Section 1225(b)(2)(A) requires immigration officers
to initiate removal proceedings (i.e., issue an NTA) against aliens who are not “clearly and beyond
9 The Court has also found several cases in which the government relied on Section 1225(b)(2)(A) to justify the detention of aliens who were encountered while coming or attempting to come into the United States at a port of entry. See, e.g., Bautista v. Sabol, 862 F. Supp. 2d 375, 377, 379 (M.D. Pa. 2012); Nadarajah v. Gonzales, 443 F.3d 1069, 1073, 1076 (9th Cir. 2006); Mejia v. Ashcroft, 360 F. Supp. 2d 647, 649–50 (D.N.J. 2005); Tineo v. Ashcroft, 350 F.3d 382, 387–88 (3d Cir. 2003); Ferreras v. Ashcroft, 160 F. Supp. 2d 617, 622–23 (S.D.N.Y. 2001). However, the Court has been unable to locate any statutory provisions, regulations, or cases limiting the application of Section 1225(b)(2)(A) to aliens coming or attempting to come into the United States at a port of entry, and the Court finds it inappropriate to impose such a limitation. Again, Defendants have not provided the Court with citations to or substantive analysis of relevant statutes, regulations, and case law that would support such a limitation.
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a doubt entitled to be admitted,” or whether the statute leaves room at that level for the exercise of prosecutorial discretion.
b. Whether 8 U.S.C. § 1225(b)(2)(A) is Mandatory Plaintiffs contend that Section 1225(b)(2)(A) creates a mandatory duty for immigration officers to initiate removal proceedings against aliens who are not “clearly and beyond a doubt entitled to be admitted.” Br. Supp. Pls.’ Appl. Prelim. Inj. 5, ECF No. 26. Plaintiffs assert that the INA eliminates ICE’s discretion to enforce the immigration laws because Section 1225 “requires the agency to enforce the Act [and] also sets forth specific enforcement procedures.” Id. at 6 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc)). Defendants contend that the Executive Branch has long exercised prosecutorial discretion in the immigration context, often in the form of deferred action. Defs.’ Opp’n Appl. Prelim. Inj. 5–6, 14, ECF No. 34 (citing Reno v. Am.-Arab Anti-Discrimination Comm. (“AAADC”), 525 U.S. 471, 483–84 (1999), Arizona v. United States, 132 S. Ct. 2492, 2499 (2012), and Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997)). Defendants also assert that the word “shall” does not impose a mandatory duty on immigration officers to initiate removal proceedings. Id. at 19, 19 n.17 (citing In re E-R-M & L-R-M, 25 I. & N. Dec. 520, 522 (B.I.A. 2011), Town of Castle Rock v. Gonzales, 545 U.S. 748, 760–62 (2005), and City of Chi. v. Morales, 527 U.S. 41, 62 n.32 (1999)). The Court finds that Congress’s use of the word “shall” in Section 1225(b)(2)(A) imposes a mandatory obligation on immigration officers to initiate removal proceedings against aliens they encounter who are not “clearly and beyond a doubt entitled to be admitted.” The Supreme Court has noted that Congress’s use of the word “shall” in a statute imposes a mandatory duty on an agency to act. Fed. Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008)
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(citing 29 U.S.C. § 629(d) and noting that “[t]he [EEOC’s] duty to initiate formal dispute resolution processes upon receipt of a charge is mandatory in the ADEA context”); Lopez v. Davis, 531 U.S. 230, 241 (2001) (noting that Congress’s use of the word “shall” indicates an intent to “impose discretionless obligations”). In contrast, Congress’s use of the word “may” in a statute merely imposes a permissive duty, and it leaves the agency with discretion to determine when to act. See Lopez, 531 U.S. at 421. Application of these basic rules leads the Court to conclude that Section 1225(b)(2)(A)’s use of the word “shall” imposes a mandatory duty on immigration officers to initiate removal proceedings whenever they encounter “applicants for admission” who are not “clearly and beyond a doubt entitled to be admitted.” See 8 U.S.C. § 1225(b)(2)(A). Nevertheless, Defendants cite several cases in support of their proposition that the term “shall” in Section 1225(b)(2)(A) does not impose a mandatory obligation on immigration officers, but instead leaves the decision to initiate removal proceedings subject to an immigration officer’s prosecutorial discretion. Defs.’ Opp’n Appl. Prelim. Inj. 13, 19, 19 n.17, ECF No. 34 (citing Heckler v. Chaney, 470 U.S. 821, 833 (1985); In re E-R-M & L-R-M, 25 I. & N. Dec. at 522; Gonzales, 545 U.S. at 760–62; Morales, 527 U.S. at 62 n.32).
The Court acknowledges that immigration law is an area of law where DHS and ICE have traditionally had discretion to prioritize their enforcement efforts to promote the efficient use of their limited financial resources and further their goal of ensuring public safety in the United States. As recently as last year, the Supreme Court acknowledged that “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 132 S. Ct. at 2499. “Discretion in the enforcement of immigration law embraces immediate human concerns,” including the desire to be near one’s family, an alien’s ties to the community, an alien’s military service, and
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international relations. Id. Concerns that justify executive discretion in the criminal law context apply in the immigration law context as well. Reno, 525 U.S. at 489–91. Generally, the Executive must consider “the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan.” Id. at 490. Judicial review of executive decisions to enforce criminal or immigration laws could result in unnecessary delays of proceedings, “chill[ing] law enforcement by subjecting the prosecutor’s [or immigration official’s] motives and decisionmaking to outside inquiry,” and “undermin[ing] prosecutorial effectiveness.” Id. The Supreme Court, speaking generally with regard to immigration law, has noted that “Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all,” and ICE “may decline to institute proceedings, terminate proceedings, or decline to execute a final order of removal” “to ameliorate a harsh and unjust outcome.” Arizona, 132 S. Ct. at 2499; Reno, 525 U.S. at 484. The Supreme Court has also approved of ICE’s utilization of “deferred action,” which may occur “at any stage of the administrative process.” Reno, 525 U.S. at 484. While DHS and ICE generally have the discretion to determine when to initiate removal proceedings, the Supreme Court has noted that “Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.” Heckler, 470 U.S. at 833. The Court finds that Congress, by using the mandatory term “shall” in Section 1225(b)(2)(A), has circumscribed ICE’s power to exercise discretion when determining against which “applicants for admission” it will initiate removal proceedings. See 8 U.S.C. § 1225(b)(2)(A).
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The Court does not find Defendants’ cited cases where the word “shall” left room for discretion controlling. First, in In re E-R-M & L-R-M, the Board of Immigration Appeals found that the use of the term “shall” in Section 1225(b)(1)(A)(i) did not limit the prosecutorial discretion of DHS to place arriving aliens in removal proceedings under Section 1229a, rather than expedited removal proceedings. 52 I. & N. Dec. at 520. In that case, the government initiated removal proceedings against the respondents under Section 1229a when they arrived in the United States from Cuba. Id. at 520–21. The respondents were subject to expedited removal proceedings under Section 1225(b)(1)(A)(i), but they were also entitled to Section 1229a removal proceedings under Section 1225(b)(2)(A). Compare 8 U.S.C. § 1225(b)(1)(A)(i) (“If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States . . . is inadmissible under [S]ection 1182(a)(6)(C) or 1182 (a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under [S]ection 1158 of this title or a fear of persecution.”), with id. § 1225(b)(2)(A) (“[I]n the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under [S]ection 1229a of this title.”). The Immigration Judge found that it lacked jurisdiction over the Section 1229a removal proceedings because the respondents were subject to mandatory expedited removal proceedings under Section 1225(b)(1)(A)(i). In re E-R-M & L-R-M, 25 I. & N. Dec. at 521.
Presented with mutually exclusive mandatory provisions, the Board of Immigration Appeals vacated the Immigration Judge’s decision and determined that, when there is a choice between two avenues of removal proceedings, both of which contain the word “shall,” the “shall” in Section
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1225(b)(1)(A)(i) concerning expedited removal proceedings can be interpreted as “may.” Id. at 522–24.
In the present case, Directive-eligible aliens would fall under Section 1225(b)(2)(A)’s instruction that immigration officers “shall” initiate removal proceedings under Section 1229a. Even if Directive-eligible aliens were encountered upon arrival in the United States (perhaps after a brief departure from the country) so that Section 1225(b)(1)(A)(i)’s expedited removal proceedings would also apply, the Government’s discretion could only be exercised to determine whether to proceed under Section 1225(b)(1)(A)(i)’s expedited removal proceedings or the removal proceedings under Section 1229a. Nothing in In re E-R-M & L-R-M suggests that DHS and ICE have discretion to refrain from initiating removal proceedings at all.
In Heckler v. Chaney, the Supreme Court found that the Federal Food, Drug, and Cosmetic Act’s (“FDCA”) section on criminal sanctions did not impose a mandatory duty on the Food and Drug Administration (“FDA”) to prosecute every violation of the Act, even though the statute provided that “any person who violates the Act’s substantive prohibitions ‘shall be imprisoned . . . or fined.’” 470 U.S. at 835 (quoting 21 U.S.C. § 333). The Supreme Court found that this seemingly mandatory language did not require prosecution of every violation of the Act, “particularly since the Act charges the Secretary only with recommending prosecution,” and “any criminal prosecutions must be initiated by the Attorney General.” Id. The Supreme Court found that the Act’s enforcement provisions, on the whole, committed “complete discretion to the Secretary to decide how and when they should be exercised.” Id. The INA, in contrast, is not structured in such a way that DHS and ICE have complete discretion to decide when to initiate removal proceedings. Instead, Section 1225(b)(2)(A) of the INA requires immigration officers to initiate removal proceedings
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whenever they encounter applicants for admission who are not “clearly and beyond a doubt entitled to be admitted,” and nothing in the INA or related regulations suggests that Congress’s use of the term “shall” imposes anything other than a mandatory duty.
In City of Chicago v. Morales, the Supreme Court addressed the constitutionality of an Illinois city ordinance that stated: “Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area.” 527 U.S. at 47 n.2. The Supreme Court found that the ordinance was unconstitutionally vague because it did not “provide sufficiently specific limits on the enforcement discretion of the police ‘to meet constitutional standards for definiteness and clarity.’” Id. at 64. The Supreme Court also noted that the word “shall” was not mandatory, because the City—the legislative body that drafted the ordinance—conceded that “police officers must use some discretion in deciding when and where to enforce city ordinances.” Id. at 62 n.32. Similarly, in Town of Castle Rock, Colorado v. Gonzales, the respondent filed suit under 42 U.S.C. § 1983 alleging that the Town of Castle Rock, Colorado violated her due process rights when its police officers failed to respond to her reports that her estranged husband had taken their children in violation of her restraining order against him. 545 U.S. at 751, 754. Colorado law provided in relevant part:
(a) . . . A peace officer shall use every reasonable means to enforce a restraining order. (b) A peace officer shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that: (I) The restrained person has violated or attempted to violate any provision of a restraining order; and
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(II) The restrained person has been properly served with a copy of the restraining order or the restrained person has received actual notice of the existence and substance of such order. (c) . . . A peace officer shall enforce a valid restraining order whether or not there is a record of the restraining order in the registry. Id. at 752 (quoting Colo. Rev. Stat. § 18-6-803.5(3) (Lexis 1999)). The Supreme Court found that this statute did not create a mandatory duty for police officers to enforce restraining orders. Id. at 760. The Supreme Court stated that “[a] well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.” Id. at 760. However, the Supreme Court noted that the legislature may override normal police discretion by providing “a true mandate[, which] would require some stronger indication . . . than ‘shall use every reasonable means to enforce a restraining order’ (or even ‘shall arrest . . . or . . . seek a warrant’).” Id. at 760–61. The Supreme Court in City of Chicago v. Morales was examining the city ordinance to determine whether it provided sufficient notice of what constituted prohibited conduct. Morales, 527 U.S. at 59–60. The Supreme Court in Town of Castle Rock, Colorado v. Gonzales was examining the statute to determine whether it conferred a property right for purposes of the Due Process Clause of the Fourteenth Amendment. Gonzales, 545 U.S. at 766. Here, the Court must determine what Section 1225 requires and whether the Directive and related provisions of the Morton Memorandum directly conflict with those statutory requirements. Accordingly, the Court’s analysis in the present case is different from the Supreme Court’s analysis in Morales and Gonzales. Considering Section 1225 as a whole, the Court finds that Congress has used language indicating an intent to impose a mandatory duty on immigration officers in Section 1225(b)(2)(A). Specifically, the statute sets out a detailed scheme for the initiation of removal proceedings. For example, Section 1225(b)(1) applies expedited removal proceedings to particular aliens, while Section 1225(b)(2)
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applies traditional removal proceedings to another class of aliens. Compare 8 U.S.C. § 1225(b)(1), with id. § 1225(b)(2). Sections 1225(b)(2)(B) and (C) also provide specific exceptions to the initiation of removal proceedings required by Section 1225(b)(2)(A). Given the use of the mandatory term “shall,” the structure of Section 1225(b) as a whole, and the defined exceptions to the initiation of removal proceedings located in Sections 1225(b)(2)(B) and (C), the Court finds that Section 1225(b)(2)(A) imposes a mandatory duty on immigration officers to initiate removal proceedings whenever they encounter an “applicant for admission” who “is not clearly and beyond a doubt entitled to be admitted.”
c. Whether the Court Can Still Uphold DHS’s Discretion When the Executive “takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and “[c]ourts can sustain exclusive [executive] control in such a case” only if that particular subject matter “is within [the Executive’s] domain and beyond control by Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–40 (1952) (Jackson, J., concurring). Because Section 1225(b)(2)(A) expressly requires immigration officers to initiate removal proceedings against applicants for admission who are not “clearly and beyond a doubt entitled to be admitted,” the Court can uphold DHS’s discretion to refrain from initiating removal proceedings under those circumstances only if Congress does not have power to legislate in the area of immigration law with regard to the removal of aliens. Congress’s power over immigration is rooted in the Constitution, is inherent in the powers of sovereign nations, and is an incident of international law. U.S. Const. art. I, § 8, cl. 4 (“The Congress shall have power . . . [t]o establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.”); Chae Chan Ping v. United States,
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130 U.S. 581, 603–07 (1889) (“That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.”); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) (“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”); Fong Yue Ting v. United States, 149 U.S. 698, 707 (1893) (“The right of a nation to expel or deport foreigners who have not been naturalized, or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified, as the right to prohibit and prevent their entrance into the country.”); Harisiades v. Shaughnessy, 342 U.S. 580, 596–97 (1952) (Frankfurter, J., concurring) (“The conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, [and] the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress . . . .”); Arizona, 132 S. Ct. at 2498 (“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.”). Congress unquestionably has the ability to legislate in the area of immigration law with regard to the removal of aliens. Because immigration law is not “within [the Executive’s] domain and beyond control by Congress,” Congress has the ability to eliminate DHS’s discretion with respect to when to initiate removal proceedings against an alien, and DHS cannot implement measures that are incompatible with Congressional intent.10 See Heckler, 470 U.S. at 833
10 At the April 8, 2013 hearing, Defendants asserted that “as a statutory matter” Congress has the ability to require every immigration officer that encounters an alien who is not “clearly and beyond a doubt entitled to be admitted” to issue an NTA to such alien, but Congress may not have the ability to do so “as
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(“Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.”).
Because Congress has the power to legislate in the area of immigration law and has expressed its intent to require the initiation of removal proceedings against aliens when the requirements of Section 1225(b)(2)(A) are satisfied, the Court finds that DHS does not have discretion to refuse to initiate removal proceedings when the requirements of Section 1225(b)(2)(A) are satisfied. However, DHS’s ability to exercise its discretion at later stages in the removal process by, for example, cancelling the Notice to Appear or moving to dismiss the removal proceedings, is not at issue in the present case, and nothing in this Order limits DHS’s discretion at later stages of the removal process. See 8 C.F.R. § 239.2(a) (providing for cancellation of a Notice to Appear prior to jurisdiction vesting with an immigration judge); id. § 239.2(c) (providing for a motion to dismiss removal proceedings after jurisdiction vests with an immigration judge); In re G-N-C, 22 I. & N. Dec. 281, 283–84 (B.I.A. 1998) (noting that, pursuant to 8 C.F.R. § 239.2(a), an immigration officer “authorized to issue a Notice to Appear has complete power to cancel such notice prior to jurisdiction vesting with the Immigration Judge”). Through the exercise of discretion at these later stages in the removal proceedings, DHS appears capable of prioritizing its removal objectives and conserving its limited resources.
a constitutional matter.” See Hr’g Tr. Defendants argued that Congress might not have the ability to impose such a mandatory duty “as a constitutional matter” because Congress’s implementation of a mandatory duty might infringe on the Executive’s ability to use its discretion in the immigration law context to “take Care that the Laws be faithfully executed.” Id.; see U.S. Const. art. II, § 3. The Court finds this argument unavailing given the Supreme Court’s recognition of Congress’s broad power in the area of immigration law. See supra Part III.A.1.c. (discussing congressional power in the area of immigration law).
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Having determined that 8 U.S.C. § 1225(b)(2)(A) requires the initiation of removal proceedings whenever an immigration officer encounters an “applicant for admission” who is not “clearly and beyond a doubt entitled to be admitted,” the Court now turns to the issue of whether relief is available under the Declaratory Judgment Act.
2. Declaratory Judgment Act Plaintiffs ultimately seek a declaratory judgment to the effect that the Directive and related provisions of the Morton Memorandum are unlawful and in violation of various statutes and the Constitution of the United States, along with an injunction preventing Defendants from implementing or enforcing the Directive or taking any adverse action against Plaintiffs for not following the Directive. Pls.’ Am. Compl. ¶¶ A–F, ECF No. 15. The Declaratory Judgment Act provides: “In a case of actual controversy within its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). The Declaratory Judgment Act is not an independent source of subject matter jurisdiction, but merely provides additional remedies. See Earnest v. Lowentritt, 690 F.2d 1198, 1203 (5th Cir. 1982). It permits an award of declaratory relief only when there is another basis for jurisdiction present. TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 681 (5th Cir. 1999). The existence of an “actual controversy” in a constitutional sense is necessary to sustain jurisdiction under the Declaratory Judgment Act. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–40 (1937); Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997). The district court must determine “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to
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warrant the issuance of a declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,
127 (2007). The plaintiff must have suffered “an invasion of a legally protected interest,” which is
“traditionally thought to be capable of resolution through the judicial process,” and is currently fit
for judicial review. Magaw, 132 F.3d at 280 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992), and Flast v. Cohen, 392 U.S. 83, 97 (1968)).
The Court previously determined that Plaintiffs have suffered an invasion of a legally
protected interest that is capable of resolution through the judicial process, because they face the
threat of disciplinary action if they issue an NTA to a Directive-eligible alien.11 See Order 18–24,
22 n.5, Jan. 24, 2013, ECF No. 41; see also Pls.’ Am. Compl. ¶ 50, ECF No. 15; App. Pls.’ Resp.
11 The Code of Federal Regulations provides that “[a]ny immigration officer, or supervisor thereof, performing an inspection of an arriving alien at a port-of-entry may issue a notice to appear to such alien.” 8 C.F.R. § 239.1(a). In addition, a specific list of “officers, or officers acting in such capacity, may issue a notice to appear” at locations other than a port-of-entry. Id. Immigration enforcement agents and deportation officers are not specifically listed as having authority to issue NTAs. See generally id. However, subsection 41 states that “[o]ther officers or employees of the Department or of the United States who are delegated the authority as provided by 8 C.F.R. 1.2 to issue notices to appear” may issue NTAs. Id. § 239(a)(41). In 8 C.F.R. § 235.6, the Secretary of DHS has specifically delegated “immigration officers” the authority to issue a Form I-862, which is an NTA, “[i]f, in accordance with the provisions of [8 U.S.C. § 1225(b)(2)(A)], the examining immigration officer detains an alien for a proceeding before an immigration judge under [8 U.S.C. § 1229a].” 8 C.F.R. § 235.6(a)(1)(i). This regulation specifically gives immigration enforcement agents and deportation officers the authority to issue NTAs in the circumstances described in Section 1225(b)(2)(A). See 8 C.F.R. § 1.2 (defining the term “immigration officer” to include immigration enforcement agents and deportation officers).
Defendants assert that Plaintiffs are not harmed by the Directive and related provisions of the Morton Memorandum because immigration enforcement agents and deportation officers are not authorized to issue NTAs. Defs.’ Opp’n Appl. Prelim. Inj. 10, ECF No. 34. At the hearing on Plaintiffs’ Application for Preliminary Injunction, Defendants presented a December 5, 2011 Memorandum by Gary Mead discussing the delegation of authority to issue NTAs. See Gov’t Ex. 4 (Mead Memorandum). However, this memorandum relates to Section 287(g) agreements with state governments and is inapplicable to the issues presented in the present case. See generally id.; see also 8 U.S.C. § 1357(g). In their opposition to Plaintiffs’ Application for Preliminary Injunction and at the April 8, 2013 hearing, Defendants provided no authority indicating that immigration enforcement agents and deportation officers do not have authority to issue NTAs pursuant to Section 1225(b)(2)(A). See generally Defs.’ Opp’n Appl. Prelim. Inj., ECF No. 34; Hr’g Tr. (At the April 8, 2013 hearing, the Court gave the parties as much time as they thought they needed to present their arguments and supporting authority.).
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Mot. Dismiss Ex. 3 (Doebler Aff.) ¶¶ 2–9, ECF No. 31; id. Ex. 2 (Engle Aff.) ¶¶ 8, 20; Defs.’ Opp’n Appl. Prelim. Inj. Attachment G (Ellis Decl.), Ex. B (Doebler Notice of Proposed Suspension), ECF No. 34-7; id. Attachment G (Ellis Decl.), Ex. C (Doebler Decision on Proposed Suspension). Accordingly, the only thing left to determine is whether the issues are currently fit for judicial review.
In Abbott Laboratories v. Gardner, the Supreme Court permitted the petitioner drug companies and their association to challenge regulations promulgated by the Commissioner of Food and Drugs designed to implement labeling provisions of the Federal Food, Drug, and Cosmetic Act. 387 U.S. 136, 152 (1967). The Supreme Court held that the issues presented were “appropriate for judicial resolution at this time” because “the issue tendered was a purely legal one,” and “the impact of the regulations upon the petitioners [was] sufficiently direct and immediate.” Id. at 148, 152. The Supreme Court allowed the petitioners to pursue relief under the Declaratory Judgment Act even though none of them had been prosecuted for failure to comply with the challenged regulations. Id. at 152–54; see also Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581 (1965) (finding claims sufficiently ripe for judicial review where the issues involved purely legal questions and the threat of harm was “certainly impending”).
The Court finds the present situation analogous to that presented in Gardner. Plaintiffs’ causes of action require an analysis of whether the Directive and related portions of the Morton Memorandum are consistent with (1) federal law, (2) the separation-of-powers doctrine, (3) the Executive’s duty under the Constitution to take care that the laws are faithfully executed, and (4) the Administrative Procedure Act. See Pls.’ Am. Compl. ¶¶ 67–80, 92–116, ECF No. 15. These causes of action present primarily legal issues that are the appropriate subject matter of a declaratory
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judgment action. Additionally, the impact of the Directive and related portions of the Morton Memorandum is “sufficiently direct and immediate,” because Plaintiffs face the threat of disciplinary action if they issue an NTA to a Directive-eligible alien. See Order 18–24, 22 n.5, Jan. 24, 2013, ECF No. 41; see also Pls.’ Am. Compl. ¶ 50, ECF No. 15; App. Pls.’ Resp. Mot. Dismiss Ex. 3 (Doebler Aff.) ¶¶ 2–9, ECF No. 31; id. Ex. 2 (Engle Aff.) ¶¶ 8, 20; Defs.’ Opp’n Appl. Prelim. Inj. Attachment G (Ellis Decl.), Ex. B (Doebler Notice of Proposed Suspension), ECF No. 34-7; id. Attachment G (Ellis Decl.), Ex. C (Doebler Decision on Proposed Suspension). Accordingly, the Court finds that the issues presented are “fit for judicial review,” and relief pursuant to the Declaratory Judgment Act is available to Plaintiffs.12 The Court will now turn to the issue of this Court’s jurisdiction under the Administrative Procedure Act to review the Directive and the Morton Memorandum.
3. Administrative Procedure Act Plaintiffs argue that the Directive and related provisions of the Morton Memorandum violate the Administrative Procedure Act (“APA”) by conferring a benefit without appropriate regulatory implementation. Br. Supp. Pls.’ Appl. Prelim. Inj. 15–22, ECF No. 26. Specifically, Plaintiffs contend that the Directive’s establishment of criteria for exception from removal and definition of a class with affirmative eligibility for benefits is essentially a “rule” under the APA that must be promulgated through the formal rulemaking procedure. Id. at 16. Plaintiffs argue that because the
12 While the Court has found that relief pursuant to the Declaratory Judgment Act is available to Plaintiffs on all their remaining causes of action, this Order only addresses the issuance of a preliminary injunction based on Plaintiffs’ likelihood of success on the merits of their first and sixth causes of action. See Pls.’ Am. Compl. ¶¶ 67–73, ECF No. 15 (asserting that the Directive and related provisions of the Morton Memorandum violate federal statutes requiring the initiation of removal proceedings); id. ¶¶ 110–16 (asserting that the Directive and related provisions of the Morton Memorandum violate the Administrative Procedure Act).
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Secretary of Homeland Security has not complied with the APA’s rulemaking procedure, the Directive and Morton Memorandum violate the APA. Defendants argue that this Court lacks jurisdiction to review Plaintiffs’ APA claims because the decision whether to initiate removal proceedings is a matter committed to agency discretion. Defs.’ Opp’n Appl. Prelim. Inj. 12–16, ECF No. 34. Defendants also contend that the Directive and Morton Memorandum reflect general statements of policy by the agency, which are not subject to notice and comment and the requirements of the rulemaking process. Id. at 21. Defendants additionally argue that the Directive and Morton Memorandum do not confer any benefits, but simply provide guidance on situations where deferred action would be appropriate.
a. Whether the Court Has Jurisdiction Under the APA The Court must first address its jurisdiction to review the Directive and the Morton Memorandum under the APA. Defendants argue that this Court lacks jurisdiction because the INA grants broad discretion to the Executive Branch, including the decision to initiate removal proceedings. Defs.’ Opp’n Appl. Prelim. Inj. 14, ECF No. 34. Plaintiffs recognize that the Executive Branch has discretion to determine its immigration law enforcement priorities, but they contend judicial review is available in the present case because Congress has explicitly removed the Executive’s discretion to initiate removal proceedings in 8 U.S.C. § 1225. Pls.’ Reply Appl. Prelim. Inj. 4–6, ECF No. 36. The Court finds that jurisdiction exists to review the Directive and related provisions of the Morton Memorandum. The Supreme Court addressed “the extent to which a decision of an administrative agency to exercise its ‘discretion’ not to undertake certain enforcement actions is subject to judicial review” under the APA in Heckler, 470 U.S. at 823. The APA’s provisions for judicial review of agency
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actions are contained in 5 U.S.C. §§ 701–706. See id. at 828. “Any person ‘adversely affected or aggrieved’ by agency action . . . , ‘including a failure to act,’ is entitled to ‘judicial review thereof,’ as long as the action is a ‘final agency action for which there is no other adequate remedy in a court.’” Id. (quoting 5 U.S.C. §§ 702, 704). Section 706 governs the standards a court is to apply when reviewing agency actions. See 5 U.S.C. § 706. “But before any review at all may be had, a party must first clear the hurdle of § 701(a).” Heckler, 470 U.S. at 828. Section 701 states that the chapter on judicial review “applies, according to the provisions thereof, except to the extent that-(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). When the statute at issue does not expressly preclude judicial review of agency actions, the court must analyze whether judicial review is available under Section 701(a)(2). “[E]ven where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler, 470 U.S. at 830. An agency’s decision not to take enforcement action is “presumed immune from judicial review under § 701(a)(2).” Id. at 832. However, this presumption may be rebutted “where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 832–33. If Congress has “indicated an intent to circumscribe agency enforcement discretion, and has provided meaningful standards for defining the limits of that discretion, there is ‘law to apply’ under § 701(a)(2), and courts may require that the agency follow that law.” Id. at 834–35. If Congress has not done so, “then an agency refusal to institute proceedings is a decision ‘committed to agency discretion by law’ within the meaning of” Section 701(a)(2), and judicial review is unavailable. Id. at 835.
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In Dunlop v. Bachowski, a union employee brought suit under the Labor Management Reporting and Disclosure Act (“LMRDA”) asking the Secretary of Labor to investigate and file suit to set aside a union election. 421 U.S. 560, 563–64 (1975). The LMRDA provided that, upon filing of a complaint by a union member, “[t]he Secretary shall investgate such complaint and, if he finds probable cause to believe that a violation . . . has occurred . . . he shall . . . bring a civil action . . . .” 29 U.S.C. § 482. The Supreme Court held that judicial review of the Secretary’s decision not to bring a civil action was available, because “the language of the LMRDA indicated that the Secretary was required to file suit if certain ‘clearly defined’ factors were present.” Heckler, 470 U.S. at 834 (quoting Bachowski v. Brennan, 502 F.2d 79, 87–88 (3d Cir. 1974)); see Dunlop, 421 U.S. at 567–68. The statute at issue in Dunlop “quite clearly withdrew discretion from the agency and provided guidelines for exercise of its enforcement power.” Heckler, 470 U.S. at 834. Therefore, judicial review was available. Id.
In Heckler v. Chaney, the Supreme Court addressed the extent to which determinations by the Food and Drug Administration (“FDA”) not to exercise its enforcement authority over the use of drugs in interstate commerce may be judicially reviewed. Id. at 828. The Federal Food, Drug, and Cosmetic Act (“FDCA”) contained a general enforcement provision providing that “‘[t]he Secretary is authorized to conduct examinations and investigations . . . .’” Id. at 835 (quoting 21 U.S.C. § 372). The provision addressing injunctions provided “no indication of when an injunction should be sought,” and the provision providing for seizures of offending food, drug, or cosmetic articles stated that the offending items “‘shall be liable to be proceeded against.’” Id. (quoting 21 U.S.C. §§ 332, 334). The provision providing for criminal sanctions provided that “any person who violates the Act’s substantive prohibitions ‘shall be imprisoned . . . or fined.’” Id. (quoting 21 U.S.C.
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§ 333). The Supreme Court held that this language did not mandate criminal prosecution of every person who violated the FDCA, “particularly since the Act charge[d] the Secretary only with recommending prosecution,” and any criminal prosecutions had to be initiated by the Attorney General. Id. Unlike the statute at issue in Dunlop, the statute in Heckler did not “clearly [withdraw] discretion from the agency and provide[] guidelines for exercise of its enforcement power.” Id. at 834–37.
In the present case, Plaintiffs are challenging DHS and ICE’s decision not to issue NTAs and initiate removal proceedings against aliens who satisfy the criteria set out in the Directive and the Morton Memorandum. Because the INA does not expressly preclude judicial review over the agency’s decision not to initiate removal proceedings, the Court must determine whether there is “law to apply” under Section 701(a)(2) so that the Court has jurisdiction “to require that the agency follow that law.” See Heckler, 470 U.S. at 834–35. The Court finds the statute at issue in the present case akin to the one at issue in Dunlop.
As discussed previously, the Court finds that Section 1225(b)(2)(A) clearly defines when inspecting immigration officers are required to initiate removal proceedings against an alien. See supra Part III.A.1.b. Congress has used the mandatory term “shall” to describe immigration officers’ duty to initiate removal proceedings, and the statute sets out a detailed scheme for when initiation of removal proceedings is required.13 Compare 8 U.S.C. § 1225(b)(1) with id. § 1225(b)(2). The specific exceptions to the initiation of removal proceedings required by Section 1225(b)(2)(A)
13 At the hearing on Plaintiffs’ Application for Preliminary Injunction, Defendants did not dispute that the use of the term “shall” is typically used to impose a mandatory duty. See Hr’g Tr. However, Defendants argued that Section 1225(b)(2)(A) did not provide specific enough standards to remove DHS’s discretion with regard to when to initiate removal proceedings. See id.
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further define when immigration officers must initiate removal proceedings. See id. § 1225(b)(2)(B), (C). Given the use of the mandatory term “shall,” the structure of Section 1225(b) as a whole, and the defined exceptions to the initiation of removal proceedings located in Sections 1225(b)(2)(B) and (C), the Court finds that Section 1225(b)(2)(A) provides clearly defined factors for when inspecting immigration officers are required to initiate removal proceedings against an alien, just as the statute at issue in Dunlop provided certain clearly defined factors for when the Secretary of Labor was required to file a civil action. See Heckler, 470 U.S. at 834 (quoting Bachowski, 502 F.2d at 87–88); Dunlop, 421 U.S. at 567–68. Accordingly, the Court finds that there is “law to apply” so that judicial review is available to ensure that DHS complies with the law pursuant to 5 U.S.C. § 701(a)(2). See Heckler, 470 U.S. at 834–35.
b. Whether Plaintiffs Are Entitled to Relief Under the APA Having found that Plaintiffs have cleared the jurisdictional hurdle of Section 701(a), the Court must now determine if Plaintiffs are entitled to relief pursuant to the APA. As stated previously, “[a]ny person ‘adversely affected or aggrieved’ by agency action . . . , ‘including a failure to act,’ is entitled to ‘judicial review thereof,’ as long as the action is a ‘final agency action for which there is no other adequate remedy in a court.’” Heckler, 470 U.S. at 828 (quoting 5 U.S.C. §§ 702, 704). Once those statutory requirements are satisfied, the court reviewing the agency’s action shall:
hold unlawful and set aside agency action, findings, and conclusions found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law;
33

(E) unsupported by substantial evidence in a case subject to [S]ections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. 5 U.S.C. § 706(2). The Court has already determined that Plaintiffs are adversely affected or aggrieved by the Directive and Morton Memorandum. See Order 21–22, Jan. 24, 2013, ECF No. 41. For agency action to be “final,” two conditions must be satisfied. Bennett v. Spear, 520 U.S. 154, 177 (1997). “First, the action must mark the ‘consummation’ of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature.” Id. at 177–78 (internal citation omitted). Second, “the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Id. at 178 (quoting Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). The Court finds that the Directive and related provisions of the Morton Memorandum are sufficiently final to warrant judicial review. First, DHS has already begun implementing the Directive and related provisions of the Morton Memorandum by granting deferred action to individuals who satisfy the criteria set forth in the Directive. See Pls.’ Ex. 10 (Deferred Action for Childhood Arrivals Process); Pls.’ Ex. 14 (Nat’l Standard Operating Procedures (SOP) Deferred Action for Childhood Arrivals (DACA)). This indicates that the Directive and related provisions of the Morton Memorandum are not “merely tentative or interlocutory” in nature. See Bennett, 520 U.S. at 177–78. Second, the Directive sets forth specific criteria that must be satisfied before an individual is considered for an exercise of prosecutorial discretion. See Pls.’ Am. Compl. Ex. 1 (Directive), at 1, ECF No. 15-1. If the criteria of the Directive are satisfied, ICE agents are instructed to defer action against the alien “for a period
34

of two years, subject to renewal.” Id. at 2. Legal consequences flow from a grant of deferred action, because “an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect.” Mot. Supplement R. on Appl. Prelim. Inj. Attach. 1 (Jung Decl.), Ex. A (USCIS Frequently Asked Questions), at 2, ECF No. 39-1. Additional legal consequences flow from the Directive and related provisions of the Morton Memorandum, because if Plaintiffs comply with Section 1225 and issue an NTA to a Directive-eligible alien, they face the threat of disciplinary action. See Order 18–24, 22 n.5, Jan. 24, 2013, ECF No. 41; see also Pls.’ Am. Compl. ¶ 50, ECF No. 15; App. Pls.’ Resp. Mot. Dismiss Ex. 3 (Doebler Aff.) ¶¶ 2–9, ECF No. 31; id. Ex. 2 (Engle Aff.) ¶¶ 8, 20; Defs.’ Opp’n Appl. Prelim. Inj. Attachment G (Ellis Decl.), Ex. B (Doebler Notice of Proposed Suspension), ECF No. 34-7; id. Attachment G (Ellis Decl.), Ex. C (Doebler Decision on Proposed Suspension). Accordingly, the Court finds that the Directive and related provisions of the Morton Memorandum constitute “final agency action” for which judicial review is available. See 5 U.S.C. § 704.
As explained below, the Court cannot determine the threshold issue of whether “there is no other adequate remedy in a court” at this time. The Court will complete its analysis of the merits of Plaintiffs’ APA claims after the parties have addressed the remaining jurisdictional issues before the Court.
B. Threat of Irreparable Harm in the Absence of Preliminary Relief To obtain a preliminary injunction, Plaintiffs must demonstrate a “likelihood of substantial and immediate irreparable injury.” See O’Shea v. Littleton, 414 U.S. 488, 502 (1974). They must demonstrate that irreparable injury is likely in the absence of an injunction, rather than a mere possibility. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). There must be a
35

showing of a real or immediate threat that the plaintiffs will be wronged in the future. See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
Defendants contend that this Court lacks jurisdiction over Plaintiffs’ claims because Plaintiffs have essentially alleged federal employment disputes that may proceed only under the Civil Service Reform Act (“CSRA”). Defs.’ Opp’n Appl. Prelim. Inj. 16, ECF No. 34 (citing 5 U.S.C. § 7103(a)(9)(C)(ii)). Defendants previously raised this issue in a footnote in their Motion to Dismiss and addressed the argument further in their reply brief. See Defs.’ Mot. Dismiss 11 n.3, ECF No. 23; Defs.’ Reply Mot. Dismiss 5, ECF No. 33. They again addressed this issue in their opposition to Plaintiff’s Application for Preliminary Injunctive Relief, but in no greater detail than at the motion to dismiss stage. See Defs.’ Opp’n Appl. Prelim. Inj. 16, ECF No. 34. At the hearing on Plaintiffs’ Application for Preliminary Injunction, the parties presented new facts that bear on the application of the CSRA, including details about Plaintiff Crane issuing a demand to bargain under Collective Bargaining Agreement 2000, to which Plaintiffs are parties. See Hr’g Tr.; see also Defs.’ Opp’n Appl. Prelim. Inj. Attach. G (Ellis Decl.), Ex. A (Agreement 2000 Between U.S. Immigration and Naturalization Service and National Immigration and Naturalization Service Council), ECF No. 34-7.
This is an inadequate way to address the Court’s jurisdiction. The Court previously criticized Defendants’ failure to adequately raise the issue of whether the CSRA precludes this Court’s jurisdiction in its Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss. See Order 32–33, Jan. 24, 2013, ECF No. 41. Presenting piecemeal arguments in a footnote in their motion to dismiss, in their reply brief, in their opposition to Plaintiffs’ Application for Preliminary Injunction, and then entirely new arguments at an evidentiary hearing is an inappropriate way to
36

challenge jurisdiction. In the Fifth Circuit, a party waives any issues that are inadequately briefed. United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001); Regmi v. Gonzales, 157 F. App’x 675, 676 (5th Cir. 2005) (per curiam). However, the issue of a federal court’s subject matter jurisdiction cannot be waived. See Fed. R. Civ. P. 12(h)(3); Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996) (citing City of Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 76 (1941)). The CSRA issue could affect the Court’s determination of whether “there is no other adequate remedy in a court” so that relief is available under the APA, whether there is a threat of irreparable harm in the absence of preliminary relief, thus making a preliminary injunction appropriate, and whether the Court has jurisdiction to hear this case at all. While ordinarily the issue would be waived, because the CSRA could potentially affect jurisdiction the Court finds it necessary to address the issue and require additional briefing from the parties.14 IV. CONCLUSION
Accordingly, the Court hereby defers ruling on Plaintiffs’ Application for Preliminary Injunction until the parties have submitted additional briefing.
It is hereby ORDERED that the parties must submit supplemental briefs, not to exceed 15 pages in length, addressing the effect of the Collective Bargaining Agreement and the CSRA on the Court’s jurisdiction to hear the case. The parties must provide citations to relevant authority in support of their propositions, including citations to the relevant provisions of the Collective Bargaining Agreement. See Castro v. McCord, 259 F. App’x 664, 666 (5th Cir. 2007) (requiring citations to relevant authority). The parties shall file their respective briefs on or before May 6, 2013.
14 The Court will address the third and fourth factors required to obtain a preliminary injunction—whether the balance of equities tips in Plaintiffs’ favor and whether an injunction is in the public interest—after the Court addresses the CSRA’s effect on jurisdiction.
37

SO ORDERED on this 23rd day of April, 2013. _____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE
38

Crane et al v. Napolitano et al, Docket No. 3:12-cv-03247 (N.D. Tex. Aug 23, 2012), Court Docket
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the Northern District of Texas; United States District Court for the Northern District of Texas
Other Statutory Actions[890]
3:12-cv-03247
Closed

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 39

 
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whether the EPA appropriately declined to make a necessity decision, the district court’s review is limited to determining whether the EPA has ‘‘provide[d] some reasonable explanation as to why it cannot or will not exercise its discretion’’ to make a necessity determination.91 That explanation must be grounded in the statute.92
[16] In light of this highly deferential standard of review, the agency’s burden is slight. That is particularly true when the statute is as broadly written as section 1313(c)(4)(B). Moreover, when a statute sets out competing considerations, agencies are generally given discretion to choose how to best give effect to those mandates.93 Nonetheless, we leave it to the capable hands of the district court to determine in the first instance the propriety of the EPA’s actions.
IV.
We VACATE the order of the district court requiring the EPA to make a necessity determination and REMAND this case for proceedings consistent with this opinion.
,
Christopher L. CRANE; David A. Engle; Anastasia Marie Carroll; Ricardo Diaz; Lorenzo Garza; Felix Luciano; Tre Rebstock; Fernando Silva; Samu-

el Martin; James D. Doebler; State Of Mississippi, by and through Governor Phil Bryant, Plaintiffs–Appellants Cross–Appellees
v.
Jeh Charles JOHNSON, Secretary, Department Of Homeland Security; John Sandweg, in his Official Capacity as Director of Immigration and Customs Enforcement; Lori Scialabba, in her Official Capacity as Acting Director of United States Citizenship and Immigration Services, Defendants–Appellees Cross–Appellants.
No. 14–10049.
United States Court of Appeals, Fifth Circuit.
April 7, 2015.
Background: Multiple Immigration and Customs Enforcement (ICE) agents and deportation officers and the State of Mississippi against the Secretary of the Department of Homeland Security (DHS) and other DHS official, challenging the DHS’s Deferred Action for Childhood Arrivals (DACA) program requiring immigration officials to use deferred action in immigration removal proceedings as to class of aliens who came to the United States as children and met certain other criteria. The United States District Court for the Northern District of Texas, Reed Charles O’Connor, J., 920 F.Supp.2d 724, dismissed for lack of subject matter jurisdiction.

cy.’’ Nat’l Customs Brokers, 883 F.2d at 96– 97.
91. Massachusetts, 549 U.S. at 533, 127 S.Ct. 1438.
92. Id. at 535, 127 S.Ct. 1438.

93. See WildEarth Guardians v. U.S. E.P.A., 751 F.3d 649, 654–55 (D.C.Cir.2014) (interpreting CAA provision to ‘‘afford[ ] agency officials discretion to prioritize sources that are the most significant threats to public health to ensure effective administration of the agency’s regulatory agenda’’).

CRANE v. JOHNSON
Cite as 783 F.3d 244 (5th Cir. 2015)

245

Holdings: The United States Court of Appeals, W. Eugene Davis, Circuit Judge, held that:
(1) State of Mississippi lacked injury-infact, as required to establish standing, and
(2) agents and officers failed to show that they sustained sufficient injury to establish standing.
Affirmed.
Priscilla R. Owen, Circuit Judge, filed concurring opinion.

5. Federal Courts O2078, 2080
A trial court has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.
6. Federal Civil Procedure O103.2
The party invoking federal jurisdiction bears the burden of establishing standing.

1. Aliens, Immigration, and Citizenship O254, 271
Aliens may be removed, pursuant to the Immigration and Nationality Act (INA), if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Immigration and Nationality Act, § 101 et seq., 8 U.S.C.A. § 1101 et seq.
2. Aliens, Immigration, and Citizenship O147
Although the Secretary of the Department of Homeland Security is charged with enforcement of the Immigration and Nationality Act (INA), a principal feature of the removal system is the broad discretion exercised by immigration officials. Immigration and Nationality Act, § 103(a)(1), 8 U.S.C.A. § 1103(a)(1).
3. Federal Courts O3581(1) The court of appeals reviews a district
court’s grant of a motion to dismiss for lack of subject matter jurisdiction de novo. Fed.Rules Civ.Proc.Rule 12(b)(1), 28 U.S.C.A.
4. Federal Courts O3585(2) The jurisdictional issue of standing is
a legal question for which appellate review is de novo.

7. Federal Civil Procedure O103.2
The doctrine of standing provides definition to the constitutional limits of subject matter jurisdiction by identifying those disputes which are appropriately resolved through the judicial process. U.S.C.A. Const. Art. 3, § 2, cl. 1.
8. Federal Civil Procedure O103.2, 103.3
To establish Article III standing, a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. U.S.C.A. Const. Art. 3, § 2, cl. 1.
9. Federal Civil Procedure O103.2
An injury sufficient to satisfy Article III standing must be concrete and particularized and actual or imminent, not conjectural or hypothetical. U.S.C.A. Const. Art. 3, § 2, cl. 1.
10. Federal Civil Procedure O103.2
Although imminence of the injury for Article III standing purposes is a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes, that the injury is certainly impending. U.S.C.A. Const. Art. 3, § 2, cl. 1.

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11. Aliens, Immigration, and Citizenship O155
State of Mississippi lacked injury-infact, as required to establish Article III standing to bring action challenging the Department of Homeland Security’s (DHS) Deferred Action for Childhood Arrivals (DACA) program, requiring immigration officials to use deferred action in immigration removal proceedings as to class of aliens who came to the United States as children and met certain other criteria, absent showing that State would or had incurred actual additional costs due to the DACA program. Immigration and Nationality Act, § 235(b)(2)(A), 8 U.S.C.A. § 1225(b)(2)(A).
12. Aliens, Immigration, and Citizenship O155
Injuries alleged by Immigration and Customs Enforcement (ICE) agents, that they were compelled to violate their oath to uphold immigration laws if they complied with Deferred Action for Childhood Arrivals (DACA) program, providing for deferred action in immigration removal proceedings as to class of aliens who came to United States as children and met certain other criteria, that compliance itself was burden, and that they faced employment sanctions if they did not comply with DACA program, were insufficient to establish standing to challenge DACA program; agents’ subjective belief that compliance would require them to violate oath was not cognizable injury, mere requirement that they change their practices to comply was not injury, there was no showing that any agent had been sanctioned or threatened with sanctions for refusing to grant deferred action under program, and agents had discretion in deciding to grant deferred action on case-by-case basis. Immigration and Nationality Act, § 235(b)(2)(A), 8 U.S.C.A. § 1225(b)(2)(A).

Kris William Kobach, Esq. (argued), Kansas City, KS, Peter Michael Jung, Strasburger & Price, L.L.P., Dallas, TX, for Plaintiff–Appellant Cross–Appellee.
Jeffrey A. Clair, Esq. (argued), Adam David Kirschner, Michael Jay Singer, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Defendant–Appellee Cross–Appellant.
Lawrence John Joseph, Washington, DC, for Amicus Curiae Eagle Forum Education and Legal Defense Fund.
Barnaby W. Zall, Esq., Weinberg, Jacobs & Tolani, L.L.P., Rockville, MD, for Amicus Curiae Immigration Reform Law Institute.
Nicolas Chavez, Esq., Chavez & Valko, L.L.P., Dallas, TX, Melissa Ellen Crow, Director, Beth Werlin, American Immigration Council, Washington, DC, for Amicus Curiae American Immigration Lawyers Association.
Marisa Bono, Mexican–American Legal Defense & Educational Fund, San Antonio, TX, Melissa Ellen Crow, Director, Beth Werlin, American Immigration Council, Washington, DC, for Amici Curiae Mexican American Legal Defense & Educational Fund, American Immigration Council.
Marisa Bono, Mexican–American Legal Defense & Educational Fund, Melissa Ellen Crow, Director, Beth Werlin, American Immigration Council, Washington, DC, Charles Roth, National Immigrant Justice Center, Chicago, IL, for Amicus Curiae National Immigrant Justice Center.
Nicolas Chavez, Esq., Chavez & Valko, L.L.P., Dallas, TX, Melissa Ellen Crow, Director, Beth Werlin, American Immigration Council, Washington, DC, Marisa Bono, Mexican–American Legal Defense & Educational Fund, San Antonio, TX, for

CRANE v. JOHNSON
Cite as 783 F.3d 244 (5th Cir. 2015)

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Amici Curiae National Immigration Law Center, New York Legal Assistance Group, United We Dream Network.
Appeals from the United States District Court for the Northern District of Texas.
Before KING, DAVIS, and OWEN, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Plaintiffs–Appellants are several Immigration and Customs Enforcement agents and deportation officers (collectively referred to as ‘‘Agents’’) and the State of Mississippi. They filed this suit against the Secretary of the Department of Homeland Security and the directors of departments within that agency (collectively referred to as ‘‘DHS’’), in their official capacities, challenging DHS’s 2012 directive, which requires its officials to use ‘‘deferred action’’ as to a certain class of aliens in immigration removal proceedings. The Agents allege that exercising deferred action violates federal law, because the law requires them to detain all illegal aliens for the purpose of placing the aliens in removal proceedings. The State of Mississippi alleges that the deferred action has caused additional aliens to remain in the state and, thus, causes the state to spend money on providing social services. The district court dismissed Plaintiffs’ claims for lack of subject matter jurisdiction. We conclude that neither the Agents nor the State of Mississippi has demonstrated the concrete and

particularized injury required to give them standing to maintain this suit. We therefore affirm the district court’s judgment.
I. BACKGROUND
A. Enforcement of Immigration Laws
[1] ‘‘The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.’’ 1 The Immigration and Nationality Act (‘‘INA’’), codified at 8 U.S.C. § 1101 et seq., is the comprehensive statutory scheme governing immigration in the United States. It controls, among other things, the removal of illegal aliens found within the United States.2 Those ‘‘[a]liens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.’’ 3
[2] Under the INA, the Secretary of the Department of Homeland Security is ‘‘charged with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliensTTTT’’ 4 Although the Secretary of DHS is charged with enforcement of the INA, ‘‘a principal feature of the removal system is the broad discretion exercised by immigration officials.’’ 5 In fact, the Supreme Court has recognized that the concerns justifying criminal prosecutorial discretion are ‘‘greatly magnified in the deportation context.’’ 6

1. Arizona v. United States, ––– U.S. ––––, 132 S.Ct. 2492, 2499, 183 L.Ed.2d 351 (2012) (citations omitted).
2. 8 U.S.C. § 1227.
3. Arizona, 132 S.Ct. at 2499.
4. 8 U.S.C. § 1103(a)(1).
5. Arizona, 132 S.Ct. at 2499.

6. See Reno v. American–Arab Anti–Discrimination Comm., 525 U.S. 471, 490, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (‘‘Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertakeTTTT These concerns are greatly magni-

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B. Challenged Executive Immigration Enforcement Programs
Beginning in 2012, the Executive Branch implemented a program deferring action against the removal of what it considers low priority aliens. This class of low priority aliens are ‘‘certain young people who were brought to [the U.S.] as children and know only this country as home.’’ 7 This is known as the Deferred Action for Childhood Arrivals (‘‘DACA’’) program outlined in former DHS Secretary Napolitano’s directive, ‘‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children’’ (‘‘Napolitano Directive’’ or ‘‘the Directive’’).8 As outlined in the Napolitano Directive, DACA permits, on a case-bycase basis, deferred action on the removal of undocumented aliens who: (1) arrived in the United States before the age of sixteen; (2) are under the age of 31 as of

June 15, 2012; (3) have continuously resided in the United States since June 15, 2007; (4) are in school, have graduated from high school, have obtained a general education development certificate, or have been honorably discharged from the Coast Guard or Armed Forces of the United States; and (5) have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety.9 If an alien satisfies all of these criteria, then the alien may apply to have any removal proceeding deferred for a period of two years.10 The alien must pass a criminal background check, submit biometrics, file several forms, and pay a fee.11 Deferred action is granted on a case-by-case basis and DHS does not guarantee that relief will be granted in all cases.12

fied in the deportation context.’’) (internal quotation marks omitted).
7. See Memorandum from Janet Napolitano, Secretary, Department of Homeland Security, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) (‘‘Napolitano Directive’’), at 1, available at http://www. dhs.gov/xlibrary/assets/s1–exercisingprosecutorial-discretion-individuals-whocame-to-us-as-children.pdf.
8. Id.
9. Id. at 1–2.
10. Id. at 2.
11. Id.; See also Consideration of Deferred Action for Childhood Arrivals (DACA), uscis.gov, http://www.uscis.gov/childhoodarrivals (last visited February 19, 2015).
12. Napolitano Directive at 2. In 2014—after the initiation of this lawsuit—acting Secretary of DHS, Jeh Johnson, issued a supplemental

directive amending DACA and instituting a new program granting deferred action to another class of undocumented aliens. The new program defers action against parents of U.S. citizens or lawful permanent residents that meet similar criteria found in DACA. This new program has become known as ‘‘DAPA,’’ Deferred Action for Parent Arrivals. Plaintiffs do not challenge DAPA’s validity. Therefore, we need not, and do not, discuss DAPA. The 2014 DACA amendments removed the age cap of 31 as of June 15, 2012, extended the period of deferred action to three years instead of two, and adjusted the date from which the alien must be continuously residing in the United States from June 15, 2007 to January 1, 2010. The 2014 DACA amendments are not the subject of Plaintiffs’ challenges. See Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, to Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents (November 20, 2014) (‘‘Johnson Directive’’), at 5, available at http:// www.dhs.gov/sites/default/files/publications/ 14 1120 memo deferred action.pdf.

CRANE v. JOHNSON
Cite as 783 F.3d 244 (5th Cir. 2015)

249

According to Section 1225 of the INA, when an immigration officer encounters an alien who is an ‘‘applicant for admission,’’ the officer must determine whether the alien is ‘‘clearly and beyond a doubt entitled to be admitted.’’ 13 An ‘‘applicant for admission’’ includes aliens present in the United States who have not been admitted.14 If the examining immigration official is not satisfied that the alien is entitled to be admitted, then the officer ‘‘shall’’ detain the alien for a removal proceeding.15 It is undisputed that Section 1225(b)(2)(A) only directs the Agents to detain an alien for the purpose of placing that alien in removal proceedings. It does not limit the authority of DHS to determine whether to pursue the removal of the immigrant.
DACA instructs DHS officials who come into contact with an undocumented alien who meets the program’s criteria to ‘‘immediately exercise’’ prosecutorial discretion, on an individual basis, in order to uphold DHS’s priority removal scheme.16 Once DHS awards the alien deferred action, the alien may apply for work authorization during the time period action is deferred.17
According to the Agents, even if the immigration official is not satisfied that the alien is ‘‘clearly and beyond a doubt entitled to be admitted,’’ DACA prohibits the agent from detaining eligible aliens for the purpose of commencing removal proceedings. The Agents read 8 U.S.C. § 1225(b)(2)(A) as requiring them to de-

tain all undocumented immigrants they come in contact with. They contend that if they follow the statute and decline to follow DACA they will be subject to employment sanctions. The Agents also allege that following DACA will cause them to violate their oath to support and defend the laws of the United States.
The State of Mississippi alleges that the beneficiaries of DACA who remain in the state will cost the state money in education, healthcare, law enforcement, and lost tax revenue. In support of this allegation, Mississippi points to a 2006 study conducted by Mississippi officials that estimates the net fiscal burden of illegal immigration as a whole at $25 million per year.
C. Procedural Posture
According to Plaintiffs’ amended complaint, DHS began accepting DACA applications on August 15, 2012. Plaintiffs filed this lawsuit seeking declaratory and injunctive relief eight days later, on August 23, 2012, facially attacking the constitutional and statutory validity of the DACA program. Specifically, Plaintiffs allege that the program violates:
(1) federal statutes requiring the initiation of removals; (2) federal law by conferring a non-statutory form of benefit—deferred action—to more than 1.7 million aliens, rather than a form of relief or benefit that federal law permits on such a large scale; (3) federal law by conferring the legal benefit of employ-

13. 8 U.S.C. § 1225(b)(2)(A).
14. Id. at § 1225(a)(1).
15. Id. at § 1225(b)(2)(A).
16. See Napolitano Directive at 2, which states, in pertinent part: 1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and

Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS): 1 With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
17. Id. at 3.

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ment authorization without any statutory basis and under the false pretense of ‘‘prosecutorial discretion’’; (4) the constitutional allocation of legislative power to Congress; (5) the Article II, Section 3, constitutional obligation of the executive to take care that the laws are faithfully executed; and (6) the Administrative Procedure Act through conferral of a benefit without regulatory implementation.
All of the causes of action, except the third, challenge the portion of DACA that requires the Agents to exercise prosecutorial discretion and refrain from detaining certain aliens. The third cause of action challenges the employment authorization provision of DACA.
Defendants filed a Fed.R.Civ.P. 12(b)(1) Motion to Dismiss, asserting, among other things, that Plaintiffs lack standing to challenge the provisions of DACA. Specifically, Defendants claim that Plaintiffs have not alleged an adequate injury-in-fact that can be redressed by a favorable ruling. In opposition to the Motion to Dismiss, the Agents asserted three distinct injuries: (1) a violation of their oaths of office; (2) the burden of compliance with the Directive; and (3) ‘‘being compelled to violate a federal statute TTT, on pain of adverse employment action if they do not.’’ The district court found that violating one’s oath is not a sufficient injury-in-fact to confer standing, nor is the burden of complying with the Directive. However, the district court found that the threat of an adverse employment action if the Agents refuse to follow the Directive is a sufficient injury to support standing. The court dismissed the Agents’ third cause of action, challenging the employment authorization provisions of DACA for lack of subject matter

jurisdiction, because the Agents’ injury does not relate to that DACA provision. Plaintiffs do not challenge this dismissal on appeal. The Agents’ remaining causes of action, however, were allowed to proceed.
Mississippi asserted that the cost to the state in providing support services to DACA beneficiaries is an adequate injury to support standing. The district court held that Mississippi’s allegation of a fiscal burden was too speculative because the only support the state provided for this burden was a 2006 report which estimated the annual cost of immigration six years before the DACA program was instituted. Mississippi produced no studies or other evidence tending to establish that the DACA program would add to the state’s already existing costs.
Next, the district court proceeded with the Agents’ remaining claims and conducted an evidentiary hearing on their petition for a preliminary injunction. The court did not rule on the preliminary injunction because an outstanding jurisdictional question existed as to whether the Agents had exhausted their administrative remedies before proceeding to federal court. Ultimately, the district court determined that the Agents had not pursued their remedies under the Civil Service Reform Act, and, thus, the district court lacked subject matter jurisdiction over these claims. The court dismissed the remainder of the Agents’ claims. This appeal followed.
II. STANDARD OF REVIEW
[3–6] We review a district court’s grant of a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction de novo.18 Moreover, the jurisdictional issue of standing is a legal question for which review is de novo.19 In determining

18. Choice Inc. v. Greenstein, 691 F.3d 710, 714 (5th Cir.2012).

19. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

CRANE v. JOHNSON
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251

whether the court has subject matter jurisdiction, we must accept as true the allegations set forth in the complaint.20 The court is also ‘‘empowered to consider matters of fact which may be in dispute.’’ 21 Therefore, a trial court ‘‘has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’’ 22 ‘‘The party invoking federal jurisdiction bears the burden of establishing standing.’’ 23

being used to usurp the powers of the political branches.’’ 26 ‘‘In keeping with the purpose of this doctrine, ‘[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.’ ’’ 27
[8] ‘‘To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’ ’’ 28

III. LAW AND ANALYSIS
[7] We must first consider the threshold question of jurisdiction. Article III of the United States Constitution limits the jurisdiction of federal courts to actual ‘‘Cases’’ and ‘‘Controversies.’’ 24 The doctrine of standing provides definition to these constitutional limits by ‘‘identify[ing] those disputes which are appropriately resolved through the judicial process.’’ 25 ‘‘The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from

[9, 10] ‘‘An injury sufficient to satisfy Article III must be ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ’’ 29 ‘‘Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.’’ 30 ‘‘Thus, we have repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in fact,’ and that ‘[a]llega-

20. Choice Inc., 691 F.3d at 714.
21. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981)).
22. Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir.2011) (citing Ramming, 281 F.3d at 161) (citations omitted).
23. Choice Inc., 691 F.3d at 714 (quoting Williamson, 645 F.2d at 413).
24. U.S. CONST., art. III, § 2.

26. Clapper v. Amnesty Int’l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013).
27. Id. at 1147 (alteration in original).
28. Susan B. Anthony List v. Driehaus, ––– U.S. ––––, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Lujan, 504 U.S. at 560– 61, 112 S.Ct. 2130 (internal quotation marks omitted)) (alteration in original).
29. Susan B. Anthony List, 134 S.Ct. at 2341 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130).

25. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

30. Clapper, 133 S.Ct. at 1147 (citing Lujan, 504 U.S. at 565, n. 2, 112 S.Ct. 2130 (internal quotation marks omitted)).

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tions of possible future injury’ are not sufficient.’’ 31
A. Mississippi’s Standing
[11] Plaintiffs–Appellants first challenge the district court’s determination that Mississippi’s alleged injury in fact is too speculative to support standing. Specifically, Mississippi argues that its fiscal injury is already manifest because a 2006 study shows that the illegal aliens of Mississippi cost the state more than $25 million per year. Since DACA authorizes a certain class of those illegal aliens to remain in the state, Mississippi argues that the program necessarily costs the state money.
In response, DHS asserts two arguments. First, that Mississippi has failed to allege facts showing that the cost to the state will increase as a result of DACA. All that Mississippi can point to, according to DHS, is that illegal immigration is costing the state money, not that DACA is costing the state money. It could be that the reallocation of DHS’s assets is resulting in the removal of immigrants that impose a greater financial burden on the state. If this is true, the net effect would be a reduction in the fiscal burden on the state. Second, DHS argues that a favorable ruling would not necessarily redress Mississippi’s alleged injury. It is uncontested that 8 U.S.C. § 1225(b)(2)(A)—if read as Plaintiffs claim—only compels the com-

mencement of removal proceedings. DHS argues that even if we were to read the statute that way, DHS unquestionably has the discretion to terminate removal proceedings after their initiation and release the immigrant back into Mississippi.
The district court held that Mississippi’s alleged fiscal injury was purely speculative because there was no concrete evidence that Mississippi’s costs had increased or will increase as a result of DACA. Based on the record before the district court 32, we agree. Mississippi submitted no evidence that any DACA eligible immigrants resided in the state. Nor did Mississippi produce evidence of costs it would incur if some DACA-approved immigrants came to the state. Instead, Mississippi only asserts (based on the 2006 study) that DACA will cost the state money because the state provides social benefits to illegal immigrants. Article III standing, however, mandates that Mississippi show a ‘‘concrete and particularized’’ injury that is ‘‘fairly traceable’’ to DACA. To do that, Mississippi was required to demonstrate that the state will incur costs because of the DACA program.33 Because Mississippi’s claim of injury is not supported by any facts, we agree with the district court that Mississippi’s injury is purely speculative. Mississippi has failed to carry its burden to establish standing. We, therefore, affirm the district court’s dismissal of Mississippi’s suit for lack of standing.34

31. Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (internal quotation marks omitted)) (emphasis in original). See also Lujan, 504 U.S. at 565 n. 2, 112 S.Ct. 2130.
32. Mississippi has referred to additional evidence it apparently developed while the case was on appeal that it did not present to the district court. We may not consider this evidence.
33. Cf., Wyoming v. United States DOI, 674 F.3d 1220, 1232 (10th Cir.2012) (‘‘Petitioners

provide no evidence of the general fund actually decreasing, nor have they shown the general fund revenues will decrease in the futureTTTT Importantly, Petitioners have not shown the 2009 rules have or will result in lost revenue.’’).
34. In a letter brief filed after oral argument, Mississippi put forward three new arguments in support of its standing, based on (1) the cost of issuing driver’s licenses to DACA’s beneficiaries; (2) standing requirements specific to the Administrative Procedure Act; and

CRANE v. JOHNSON
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B. Agents’ Standing
[12] The Agents claim a number of different injuries. First, they allege that they are being compelled to violate their oath to uphold the laws of the United States if they follow the Directive. Second, the burden of complying with DACA is causing injury to the Agents. Finally, the Agents argue that they are threatened with employment sanctions if they do not follow the Directive.
In considering the motion to dismiss for lack of standing, we consider Plaintiffs’ amended complaint and its attachments,35 Defendants’ motion to dismiss, and Plaintiffs’ opposition to the motion to dismiss and its attachments.36 Neither party objects to the court’s consideration of these documents, nor do the parties contest the relevant facts.
i. Oath Violation
The Agents assert that they have suffered an injury in fact because enforcing DACA would require them to violate their oaths to uphold the laws of the United States, specifically § 1225(b)(2)(A). In opposition, DHS argues that the violation of one’s oath alone is insufficient to establish standing. Instead, the plaintiffs must allege a separate adverse consequence that will flow if they comply with DACA.

Cir.1978), and Donelon v. Louisiana Division Of Administrative Law, 522 F.3d 564 (5th Cir.2008), the district court found that the Agents are ‘‘suing to ensure that the Directive TTT compl[ies] with their opinion of what federal law requires.’’ In other words, the agent’s subjective belief that complying with the Directive will require him to violate his oath is not a cognizable injury. We agree. Under the Fifth Circuit precedent, the violation of one’s oath alone is an insufficient injury to support standing.
ii. Burden of Compliance
Next, the Agents assert that the burden of compliance with DACA qualifies as a sufficient injury to satisfy the requirements of constitutional standing. Specifically, the Agents allege that they must inevitably alter their current processes to ensure that they defer action with respect to DACA-eligible aliens. DHS argues that ‘‘a government employee responsible for carrying out an agency policy does not have standing to challenge that policy merely because of work responsibilities related to that policy.’’ The district court again agreed with DHS and held that the burden of compliance with DACA is insufficient to satisfy the injury requirement of standing. We agree.

The district court agreed with DHS and held that the violation of one’s oath alone is not a sufficient injury in fact to support standing. Citing to Finch v. Mississippi State Medical Ass’n, 585 F.2d 765 (5th

First, the Agents do not point to, and we have not found, any case where a plaintiff has had standing to challenge a department policy merely because it required the employees to change their

(3) the federal government’s abdication of its duties to enforce the immigration laws. Because Mississippi failed to provide evidentiary support on these arguments and failed to make these arguments in their opening brief on appeal and below, they have been waived. See Tex. Democratic Party v. Benkiser, 459 F.3d 582, 594 (5th Cir.2006); XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir.2008).

35. Plaintiffs attached the Napolitano Directive and the 2006 study conducted by the State of Mississippi.
36. Plaintiffs attached affidavits from Plaintiff Christopher L. Crane, Plaintiff David A. Engle, Plaintiff James D. Doebler, and Plaintiff Samuel Martin.

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783 FEDERAL REPORTER, 3d SERIES

practices. Second, the Agents have not alleged with any specificity how their practices will change in a substantial way. There are no factual allegations in the amended complaint describing the practices of the Agents before DACA or how those practices have changed or will change. More importantly, there are no allegations that any change which may occur will make their employment duties significantly more difficult. The Agents have not alleged a sufficient injury in fact with respect to compliance with DACA to satisfy the requirements of constitutional standing.
iii. Threat of Employment Sanctions
Finally, the Agents allege that they have suffered an injury in fact by virtue of being threatened with employment sanctions if they do not comply with the terms of the Directive. Specifically, the Agents argue that they are threatened with employment sanctions if they detain a DACAeligible alien for a removal proceeding. The district court found that the facts alleged in the Agents’ complaint were sufficient to demonstrate that they are threatened with employment sanctions; and these allegations were sufficient to support the Agents’ claims of injury in fact to establish standing in this suit. For the following reasons, we disagree.
As we stated above, Plaintiffs must allege an injury that is ‘‘concrete and particularized’’ and ‘‘actual or imminent, not con-

jectural or hypothetical.’’ 37 The threat of a future injury can suffice as a sufficient injury in fact, but only if it is ‘‘certainly impending.’’ 38 ‘‘[W]e have repeatedly reiterated that TTT ‘[a]llegations of possible future injury’ [is] not sufficient.’’ 39
We begin with the observation that Plaintiffs have provided no evidence that any agent has been sanctioned or is threatened with employment sanctions for detaining an alien and refusing to grant deferred action under DACA.40 The complaint alleges that on one occasion an agent’s supervisor instructed the agent to defer action under the Directive to an alien, and the agent refused to follow the supervisor’s instruction. The agent received a non-disciplinary letter admonishing him for refusing to follow his supervisor’s instruction. This admonishment for refusing to follow a supervisor’s instruction does not support Plaintiffs’ claim that they are threatened with employment sanctions for failing to exercise their discretion to grant deferred action to an alien who appears to satisfy DACA’s criteria.
This brings us to a fundamental flaw in the Agents’ argument. The Agents’ reading of the Directive—that they are always required to grant deferred action and cannot detain an alien who may meet the Directive’s criteria—is erroneous. The Napolitano Directive makes it clear that the Agents shall exercise their discretion in deciding to grant deferred action, and

37. Susan B. Anthony List, 134 S.Ct. at 2341 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130).
38. Clapper, 133 S.Ct. at 1147 (citing Lujan, 504 U.S. at 565 n. 2, 112 S.Ct. 2130 (internal quotation marks omitted)).
39. Id. (quoting Whitmore, 495 U.S. at 158, 110 S.Ct. 1717 (internal quotation marks omitted)) (emphasis in original); See also Lujan, 504 U.S. at 565 n. 2, 112 S.Ct. 2130.

40. In discussing the applicability of the Civil Service Reform Act, the Agents concede in their brief that ‘‘there has been no employment action takenTTTT Nor has there even been a specific threat of future employment action.’’ Brief of Appellants at 22, Christopher L. Crane, et al. v. Jeh Charles Johnson, et al., No. 14–10049 (5th Cir. May 16, 2014).

CRANE v. JOHNSON
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255

this judgment should be exercised on a case-by-case basis:
[Our Nation’s immigration laws] are not designed to be blindly enforced without consideration given to the individual circumstances of each case.
* * *
With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE) TTT [and] who meet the above criteria, ICE TTT should immediately exercise their discretion, on an individual basisTTTT 41
The 2014 supplemental directive, which also supplements DACA, reinforces this approach to the application of deferred action:
Under any of the proposals outlined above, immigration officers will be provided specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.42
The fact that the directives give this degree of discretion to the agent to deal with each alien on a case by case basis makes it highly unlikely that the agency would impose an employment sanction against an employee who exercises his discretion to detain an illegal alien.
The unlikelihood of an agency sanction against an agent for exercising discretion expressly granted under the directives together with the fact that no sanctions—or warning of sanctions—have been issued for that exercise persuades us that the Agents are not under a ‘‘certainly impending’’ threat of an adverse personnel action

that is sufficiently concrete and particularized to qualify as an injury in fact that gives Plaintiffs standing.
Because the Agents have not alleged a sufficient injury in fact to satisfy the requirements of constitutional standing, we dismiss their claims for lack of subject matter jurisdiction.
IV. CONCLUSION
Neither Mississippi nor the Agents have alleged a sufficiently concrete and particularized injury that would give Plaintiffs standing to challenge DACA. For this reason, we affirm the district court’s dismissal of Plaintiffs’ claims for lack of subject matter jurisdiction.43
AFFIRMED.
PRISCILLA R. OWEN, Circuit Judge, concurring:
I concur fully in the court’s opinion and judgment. I write separately only to note that in order to establish standing with respect to some claims, it is not always necessary to present concrete evidence that an injury has occurred or will, beyond question, occur, as the Supreme Court implicitly recognized in Watt v. Energy Action Educational Foundation.1 The State of Mississippi has not, however, made any arguments of this nature.
,

41. Napolitano Directive at 2.
42. Johnson Directive at 5.
43. DHS cross-appealed preliminary findings made by the district court following the evidentiary hearing on Plaintiffs’ petition for a

preliminary injunction. Because we conclude that Plaintiffs lack standing to maintain this suit, DHS’s cross-appeal is moot.
1. 454 U.S. 151, 160–61, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981).

 
 Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 1 of 13
CLOSED,EXH−ADM
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:12−cv−03247−O

Crane et al v. Napolitano et al Assigned to: Judge Reed C O'Connor Case in other court: 14−10049 Cause: 28:1331 Fed. Question Plaintiff Christopher L Crane
Plaintiff David A Engle
Plaintiff Anastasia Marie Carroll

Date Filed: 08/23/2012 Date Terminated: 07/31/2013 Jury Demand: None Nature of Suit: 890 Other Statutes: Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Peter Michael Jung Strasburger &Price, LLP PO Box 50100 901 Main St Ste 4400 Dallas, TX 75250−0100 214/651−4724 Fax: 214/651−4330 FAX Email: michael.jung@strasburger.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Kris W Kobach Kobach Law LLC 4701 N 130th St Kansas City, KS 66109 913/638−5567 Fax: 816/235−5276 Email: kkobach@gmail.com PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Peter Michael Jung (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Kris W Kobach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Peter Michael Jung (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Kris W Kobach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 2 of 13

Plaintiff Ricardo Diaz
Plaintiff Lorenzo Garza
Plaintiff Felix Luciano
Plaintiff Tre Rebstock
Plaintiff Fernando Silva

represented by Peter Michael Jung (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Kris W Kobach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Peter Michael Jung (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Kris W Kobach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Peter Michael Jung (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Kris W Kobach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Peter Michael Jung (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Kris W Kobach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Peter Michael Jung (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Kris W Kobach (See above for address)

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 3 of 13

PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Plaintiff Samuel Martin

represented by Peter Michael Jung (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Kris W Kobach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Plaintiff James D Doebler

represented by Peter Michael Jung (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Kris W Kobach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Plaintiff
State of Mississippi by and through Governor Phil Bryant TERMINATED: 01/24/2013

represented by Kris W Kobach (See above for address) TERMINATED: 01/24/2013 LEAD ATTORNEY Bar Status: Not Admitted

Peter Michael Jung (See above for address) TERMINATED: 01/24/2013 ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

V.
Defendant
Janet Napolitano in her official capacity as Secretary of Homeland Security

represented by Adam David Kirschner United States Department of Justice Civil Division 20 Massachusetts Ave Suite 7126 Washington, DC 20530 202/353−9265 Fax: 202/616−8470 Email: adam.kirschner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Bradley Heath Cohen US Department of Justice Civil Division Federal Programs Branch

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 4 of 13

20 Massachusetts Ave NW Room 7338 Washington, DC 20001 202/305−9855 Fax: 202/616−8202 Email: bradley.cohen@usdoj.gov ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
John Morton in his Official Capacity as Director of Immigration and Customs Enforcement

represented by Adam David Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Bradley Heath Cohen (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
Alejandro Mayorkas in his official capacity as Director of United States Citizenship and Immigration Services

represented by Adam David Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Bradley Heath Cohen (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

V. Intervenor Defendant Pamela Resendiz
Intervenor Defendant Carolina Canizalez
Intervenor Defendant University Leadership Initiative

represented by Nina Perales Mexican American Legal Defense &Educational Fund Inc 110 Broadway Suite 300 San Antonio, TX 78205 210/224−5476 Fax: 210/224−5382 FAX Email: nperales@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 5 of 13

Bar Status: Admitted/In Good Standing

Amicus National Immigrant Justice Center

represented by Brian J Murray Jones Day 77 W Wacker Dr Suite 3500 Chicago, IL 60601−1692 312/782−3939 Fax: 312/782−8585 Email: bjmurray@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Dionna Jalea Asha Little Jones Day 2727 North Harwood Street Dallas, TX 75201 214/969−3658 Fax: 214/969−5100 Email: djlittle@jonesday.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Date Filed 08/23/2012
08/23/2012 08/23/2012 08/23/2012 08/23/2012 08/23/2012 08/31/2012

# Docket Text
1 COMPLAINT against All Defendants filed by Felix Luciano, Anastasia Marie Carroll, Tre Rebstock, Samuel Martin, David A. Engle, Fernando Silva, Christopher L. Crane, Ricardo Diaz, James D. Doebler, Lorenzo Garza. Summons(es) not requested at this time. In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. (Filing fee $350; Receipt number 0539−4776621) Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership (Jung, Peter) (Entered: 08/23/2012)
2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Anastasia Marie Carroll, Christopher L. Crane, Ricardo Diaz, James D. Doebler, David A. Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva. (Jung, Peter) (Entered: 08/23/2012)
3 ADDITIONAL ATTACHMENTS to 1 Complaint by Plaintiffs Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva. (Jung, Peter) (Entered: 08/23/2012)
4 New Case Notes: A filing fee has been paid. File to Judge O Connor. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Toliver). Clerk to provide copy to plaintiff if not received electronically. (cea) (Entered: 08/23/2012)
5 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva. (Jung, Peter) (Entered: 08/23/2012)
*** Case unsealed per oral order by District Judge. (jkm) (Entered: 08/24/2012)
6 Request for Clerk to issue summons in a civil action filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva.

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 6 of 13

08/31/2012
08/31/2012 10/03/2012 10/03/2012 10/03/2012 10/03/2012 10/08/2012 10/10/2012
10/10/2012
10/10/2012 10/12/2012
10/29/2012 10/29/2012 10/29/2012 10/29/2012 11/13/2012 11/13/2012

(Jung, Peter) (Entered: 08/31/2012)
7 Request for Clerk to issue summons in a civil case filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva. (Jung, Peter) (Entered: 08/31/2012)
8 Summons issued as to John Morton, Janet Napolitano, U.S. Attorney, and U.S. Attorney General. (skt) (Entered: 08/31/2012)
9 AFFIDAVIT of Service for Summons and Complaint served on John Morton through U.S. Attorney on 09/12/2012. (Jung, Peter) (Entered: 10/03/2012)
10 AFFIDAVIT of Service for Summons and Complaint served on Janet Napolitano through U.S. Attorney on 09/12/2012. (Jung, Peter) (Entered: 10/03/2012)
11 AFFIDAVIT of Service for Summons and Complaint served on John Morton through Attorney General on 09/19/2012. (Jung, Peter) (Entered: 10/03/2012)
12 AFFIDAVIT of Service for Summons and Complaint served on John Morton on 09/18/2012. (Jung, Peter) (Entered: 10/03/2012)
13 Proof of Service for Summons and Complaint served on Janet Napolitano on 09/24/2012. (Jung, Peter) Modified text on 10/9/2012 (ykp). (Entered: 10/08/2012)
14 Application for Admission Pro Hac Vice with Cert. of Good Standing for Attorney Kris W. Kobach (Filing fee $25; Receipt number 0539−4874501) filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva (Attachments: # 1 Exhibit(s) Certificate of Good Standing, # 2 Proposed Order Proposed Order) (Jung, Peter) (Entered: 10/10/2012)
15 AMENDED COMPLAINT against All Defendants filed by Felix Luciano, Anastasia Marie Carroll, Tre Rebstock, Samuel Martin, David A Engle, Fernando Silva, Christopher L Crane, Ricardo Diaz, James D Doebler, Lorenzo Garza, State of Mississippi, by and through Governor Phil Bryant. Clerk to issue summons(es) for new federal defendant(s). (Attachments: # 1 Exhibit(s) Directive, # 2 Exhibit(s) OSA Report) (Jung, Peter) (Entered: 10/10/2012)
16 Summons issued as to Alejandro Mayorkas, U.S. Attorney, and U.S. Attorney General. (axm) (Entered: 10/10/2012)
17 ELECTRONIC ORDER granting 14 Application for Admission Pro Hac Vice of Kris W. Kobach. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Judge Reed C O'Connor on 10/12/2012) (chmb) (rrr) (Entered: 10/12/2012)
18 AFFIDAVIT of Service for Summons &Complaint served on Janet Napolitano, through the Attorney General on 09/17/2012. (Jung, Peter) (Entered: 10/29/2012)
19 AFFIDAVIT of Service for Summons &Amended Complaint served on Alejandro Mayorkas on 10/22/2012. (Jung, Peter) (Entered: 10/29/2012)
20 AFFIDAVIT of Service for Summons &Amended Complaint served on Alejandro Mayorkas, through the Attorney General on 10/22/2012. (Jung, Peter) (Entered: 10/29/2012)
21 AFFIDAVIT of Service for Summons &Amended Complaint served on Alejandro Mayorkas, through the US Attorney on 10/18/2012. (Jung, Peter) (Entered: 10/29/2012)
22 NOTICE of Attorney Appearance by Adam David Kirschner on behalf of All Defendants. (Filer confirms contact info in ECF is current.) (Kirschner, Adam) (Entered: 11/13/2012)
23 MOTION to Dismiss filed by Alejandro Mayorkas, John Morton, Janet Napolitano with Brief/Memorandum in Support. (Kirschner, Adam) (Entered: 11/13/2012)

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 7 of 13

11/28/2012 11/28/2012
11/28/2012
11/29/2012 11/29/2012 11/29/2012 12/04/2012 12/04/2012 12/18/2012 12/18/2012 12/19/2012
01/02/2013

24 MOTION for Injunction Application for Preliminary Injunction filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi (Kobach, Kris) (Entered: 11/28/2012)
25 ***DISREGARD/SEE 26 FOR CORRECTED DOCUMENT*** Brief/Memorandum in Support filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi with Brief/Memorandum in Support. (Attachments: # 1 Affidavit(s) Samuel Martin Affidavit, # 2 Affidavit(s) Christopher Crane Affidavit) (Kobach, Kris) Modified text and termed motion on 11/29/2012 (ykp). (Entered: 11/28/2012)
26 Brief/Memorandum in Support filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi re 25 MOTION for Injunction Brief in Support of Application for Preliminary Injunction, 24 MOTION for Injunction Application for Preliminary Injunction Amended Brief in Support of Application for Preliminary Injunction (Attachments: # 1 Affidavit(s) Samuel Martin Affidavit, # 2 Affidavit(s) Christopher Crane Affidavit) (Kobach, Kris) (Entered: 11/28/2012)
27 ORDER: Before the Court are Defendants' 23 Motion to Dismiss and Memorandum in Support, filed 11/13/2012, and Plaintiffs' 24 Application for Preliminary Injunctive Relief, filed 11/28/2012. To facilitate the efficient resolution of the issues, the Court will consider these Motions at the same time once the Motion to Dismiss is ripe. (Ordered by Judge Reed C O'Connor on 11/29/2012) (ykp) (Entered: 11/29/2012)
28 MOTION for Extension of Time to File Response/Reply Until Final Disposition of Defendants' Motion to Dismiss re: 24 MOTION for Injunction Application for Preliminary Injunction filed by Alejandro Mayorkas, John Morton, Janet Napolitano with Brief/Memorandum in Support. (Kirschner, Adam) (Entered: 11/29/2012)
29 ELECTRONIC ORDER denying 28 Motion to Extend Time to File Response/Reply. (Ordered by Judge Reed C O'Connor on 11/29/2012)(Judge Reed C O'Connor) (Entered: 11/29/2012)
30 RESPONSE filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi re: 23 MOTION to Dismiss (Kobach, Kris) (Entered: 12/04/2012)
31 Appendix in Support filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi re 30 Response/Objection, Appendix in Support of Response to Motion to Dismiss (Kobach, Kris) (Entered: 12/04/2012)
32 NOTICE of Attorney Appearance by Bradley Heath Cohen on behalf of All Defendants. (Filer confirms contact info in ECF is current.) (Cohen, Bradley) (Entered: 12/18/2012)
33 REPLY filed by Alejandro Mayorkas, John Morton, Janet Napolitano re: 23 MOTION to Dismiss (Kirschner, Adam) (Entered: 12/18/2012)
34 RESPONSE filed by Alejandro Mayorkas, John Morton, Janet Napolitano re: 24 MOTION for Injunction Application for Preliminary Injunction (Attachments: # 1 Exhibit(s) A− ICE Director June 17, 2011 Memo, # 2 Exhibit(s) B− DHS Secretary June 15, 2012 Memo, # 3 Exhibit(s) C− Bernsen 1976 Memo, # 4 Exhibit(s) D− Meissner 2000 Memo, # 5 Exhibit(s) E− Howard 2005 Memo, # 6 Exhibit(s) F− Myers 2007 Memo, # 7 Exhibit(s) G− Ellis Declaration) (Kirschner, Adam) (Entered: 12/19/2012)
35 Unopposed MOTION for Leave to File Reply in Excess of Page Limitation filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock,

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 8 of 13

01/02/2013 01/02/2013 01/03/2013 01/23/2013
01/24/2013 01/24/2013
01/25/2013
01/31/2013 02/01/2013 02/01/2013

Fernando Silva, State of Mississippi (Attachments: # 1 Proposed Order Proposed Order) (Jung, Peter) (Entered: 01/02/2013)
36 REPLY filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi re: 24 MOTION for Injunction Application for Preliminary Injunction (Jung, Peter) (Entered: 01/02/2013)
37 Appendix in Support filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi re 36 Reply, (Jung, Peter) (Entered: 01/02/2013)
38 ORDER granting 35 Motion to Enlarge Page Limitation for Reply in Support of Application for Preliminary Injunction. Accordingly, it is ORDERED that Plaintiffs may file a Reply in support of their Application for Preliminary Injunction not to exceed thirteen pages in length. (Ordered by Judge Reed C O'Connor on 1/3/2013) (ctf) (Entered: 01/03/2013)
39 MOTION to Amend/Correct 37 Appendix in Support, to Supplement the Record on Application for Preliminary Injunction filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi with Brief/Memorandum in Support. (Attachments: # 1 Declaration(s) Declaration of P. Michael Jung, # 2 Proposed Order) (Jung, Peter) (Entered: 01/23/2013)
40 RESPONSE filed by Alejandro Mayorkas, John Morton, Janet Napolitano re: 39 MOTION to Amend/Correct 37 Appendix in Support, to Supplement the Record on Application for Preliminary Injunction (Attachments: # 1 Exhibit(s) A− 9−14−12 FAQs, # 2 Exhibit(s) B− 2002 INS Memo, # 3 Exhibit(s) C− 2009 USCIS Memo) (Kirschner, Adam) (Entered: 01/24/2013)
41 MEMORANDUM OPINION AND ORDER granting in part and denying in part 23 Motion to Dismiss: Accordingly, it is ORDERED that the State of Mississippi's claims, by and through Governor Phil Bryant, are DISMISSED without prejudice to refiling. It is further ORDERED that Plaintiffs' third cause of action challenging the issuance of employment authorization is DISMISSED without prejudice to refiling. State of Mississippi (by and through Governor Phil Bryant) terminated., Attorneys Peter Michael Jung and Kris W Kobach terminated. (Ordered by Judge Reed C O'Connor on 1/24/2013) (twd) (Entered: 01/25/2013)
42 ORDER as to Plaintiffs' 24 Application for Preliminary Injunctive Relief: The Court intends to set this for hearing. Accordingly, it is ORDERED that lead counsel for each party (or a designee attorney with appropriate authority) shall confer as soon as practicable to prepare a Joint Report regarding proposed dates for a hearing on Plaintiffs' Application for Preliminary Injunctive Relief. The Joint Report shall be filed on or before 2/01/2013. (Ordered by Judge Reed C O'Connor on 1/25/2013) (twd) (Entered: 01/25/2013)
43 Consent Motion for Extension of Time to Answer 15 Amended Complaint Until 14 Days Following Disposition of Plaintiffs' Motion for Preliminary Injunction filed by Alejandro Mayorkas, John Morton, Janet Napolitano (Kirschner, Adam) Modified text/link on 2/1/2013 (rlw). (Entered: 01/31/2013)
44 CERTIFICATE OF SERVICE filed by Alejandro Mayorkas, John Morton, Janet Napolitano re: 43 Consent Motion for Extension of Time to File Answer Until 14 Days Following Disposition of Plaintiffs' Motion for Preliminary Injunction . (Kirschner, Adam) Modified text on 2/1/2013 (axm). (Entered: 02/01/2013)
45 ORDER granting 43 Defendants' Unopposed Motion for Extension of Time to Answer Plaintiff's Amended Complaint. Accordingly, it is ORDERED that Defendants must file their answer to Plaintiffs' Amended Complaint within fourteen days of the Court's disposition of the pending application for preliminary injunction. (Ordered by Judge Reed C O'Connor on 2/1/2013) (axm) (Entered: 02/01/2013)

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 9 of 13

02/01/2013 02/05/2013
02/08/2013 02/11/2013 03/11/2013 03/12/2013 03/15/2013 04/04/2013 04/08/2013 04/09/2013 04/10/2013 04/12/2013 04/15/2013 04/23/2013

46 Joint STATUS REPORT filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Alejandro Mayorkas, John Morton, Janet Napolitano, Tre Rebstock, Fernando Silva. (Kirschner, Adam) (Entered: 02/01/2013)
47 ORDER SETTING HEARING: Before the Court is 24 Plaintiffs' Application for Preliminary Injunctive Relief, filed 11/28/2012. The Court sets this matter for a hearing on 3/22/2013 09:00 AM before Judge Reed C O'Connor. Counsel for Plaintiffs and Defendants are ORDERED to attend and be prepared to address all issues relating to the motion. (Ordered by Judge Reed C O'Connor on 2/5/2013) (ykp) (Entered: 02/05/2013)
48 Unopposed MOTION to Continue Preliminary Injunction Hearing to Another Date filed by Alejandro Mayorkas, John Morton, Janet Napolitano with Brief/Memorandum in Support. (Kirschner, Adam) (Entered: 02/08/2013)
49 ORDER granting 48 Motion to Continue. Motion Hearing regarding 24 Motion set for 4/8/2013 09:00 AM before Judge Reed C O'Connor. Counsel for Plaintiffs and Defendants are ORDERED to attend and be prepared to address all issues relating to the motion. (Ordered by Judge Reed C O'Connor on 2/11/2013) (tla) Modified on 2/11/2013 (tla). (Entered: 02/11/2013)
50 Unopposed MOTION to Amend/Correct 46 Status Report, filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva (Attachments: # 1 Proposed Order) (Jung, Peter) (Entered: 03/11/2013)
51 ORDER granting 50 Plaintiffs' Unopposed Motion to Amend Joint Status Report. Accordingly, it is ORDERED that Jessica Vaughan is substituted as a witness for Plaintiffs at the upcoming preliminary injunction hearing, in place of Robin Baker. (Ordered by Judge Reed C O'Connor on 3/12/2013) (aaa) (Entered: 03/12/2013)
52 ORDER granting 39 Plaintiffs' Motion to Supplement the Record on Application for Preliminary Injunctive Relief. (Ordered by Judge Reed C O'Connor on 3/15/2013) (axm) (Entered: 03/18/2013)
Notice to the Parties: Please be advised that as of Monday, April 8, 2013, Judge Reed C. O'Connor's chambers will be located at 1100 Commerce Street, Room 1312, Dallas, Texas 75242. All hearings and trial proceedings will be held in United States District Judges Courtroom 1310, 1100 Commerce Street, Dallas, Texas 75242. (drh) (Entered: 04/04/2013)
53 ELECTRONIC Minute Entry for proceedings held before Judge Reed C O'Connor: Hearing on 24 − Plaintiffs' Application for Preliminary Injunction. Hearing held on 4/8/2013. Attorney Appearances: Plaintiff − Kris Kobach, Peter Michael Jung; Defense − Adam David Kirschner, Bradley Heath Cohen. (Court Reporter: Denver Roden) (Exhibits admitted) Time in Court − 5:45. (chmb) (Entered: 04/09/2013)
54 NOTICE Pertaining to the Preliminary Injunction Hearing filed by Alejandro Mayorkas, John Morton, Janet Napolitano re: 53 Evidentiary Hearing. (Kirschner, Adam) Modified text on 4/10/2013 (axm). Modified text on 4/16/2013 (rlw). (Entered: 04/09/2013)
55 CERTIFICATE OF SERVICE by Alejandro Mayorkas, John Morton, Janet Napolitano re 54 Notice (Other) (Kirschner, Adam) (Entered: 04/10/2013)
56 RESPONSE filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi re: 54 NOTICE Pertaining to the Preliminary Injuction Hearing (Kobach, Kris) Modified text on 4/15/2013 (rlw). (Entered: 04/12/2013)
57 REPLY filed by Alejandro Mayorkas, John Morton, Janet Napolitano re: 54 NOTICE Pertaining to the Preliminary Injunction Hearing (Kirschner, Adam) Modified link/text on 4/16/2013 (rlw). (Entered: 04/15/2013)
58 Memorandum Opinion and Order deferring ruling on Plaintiffs' 24 Application for Preliminary Injunction until the parties have submitted additional briefing. The

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 10 of 13

05/06/2013
05/06/2013 05/06/2013 05/07/2013 05/07/2013
05/13/2013 05/16/2013 05/17/2013 05/20/2013

parties shall file their respective briefs on or before 5/6/2013. (Ordered by Judge Reed C O'Connor on 4/23/2013) (tln) (Entered: 04/23/2013)
59 Brief/Memorandum in Support filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva re 24 MOTION for Injunction Application for Preliminary Injunction (supplemental brief per court order) (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Exhibit(s) Exhibit B (first half), # 3 Exhibit(s) Exhibit B (second half), # 4 Exhibit(s) Exhibit C (part 1), # 5 Exhibit(s) Exhibit C (part 2), # 6 Exhibit(s) Exhibit C (part 3), # 7 Exhibit(s) Exhibit C (part 4), # 8 Exhibit(s) Exhibit D, # 9 Exhibit(s) Exhibit E) (Jung, Peter) (Entered: 05/06/2013)
60 Defendants' Supplemental Memorandum on Why the Civil Service Reform Act Precludes Plaintiffs' Requested Relief by Alejandro Mayorkas, John Morton, Janet Napolitano as to 58 Memorandum Opinion and Order, 34 Response/Objection, Regarding Why CSRA Precludes Plaintiffs' Requested Relief. (Attachments: # 1 Exhibit(s) A− National Grievance) (Kirschner, Adam) Modified on 5/13/2013 (twd). Modified title on 5/29/2013 (rlw). (Entered: 05/06/2013)
61 Proposed MOTION to Intervene as Defendants or in the Alternative, Motion for Leave to Participate as Amici Curiae filed by Pamela Resendiz, Carolina Canizalez, University Leadership Initiative with Brief/Memorandum in Support. (Attachments: # 1 Brief in Support of Motion to Intervene, # 2 Appendix to Motion to Intervene, # 3 Proposed Order A). Party Pamela Resendiz, Carolina Canizalez and the University Leadership Initiative added. (Perales, Nina) (Entered: 05/06/2013)
62 NOTICE of Letter Pointing out Error in Brief re: 59 Brief/Memorandum in Support of Motion,, filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva (Kobach, Kris) (Entered: 05/07/2013)
63 Amended Supplemental Brief in Support filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva re 24 MOTION for Injunction Application for Preliminary Injunction (Amended Supplemental Brief) (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Exhibit(s) Exhibit B (first half), # 3 Exhibit(s) Exhibit B (second half), # 4 Exhibit(s) Exhibit C (part 1), # 5 Exhibit(s) Exhibit C (part 2), # 6 Exhibit(s) Exhibit C (part 3), # 7 Exhibit(s) Exhibit C (part 4), # 8 Exhibit(s) Exhibit D, # 9 Exhibit(s) Exhibit E, # 10 Exhibit(s) Exhibit F) (Jung, Peter) Docket text modified on 5/13/2013 (twd). (Entered: 05/07/2013)
64 ORDER re 60 Supplemental Memorandum on Why the Civil Service Reform Act Precludes Plaintiffs' Requested Relief and 63 Amended Supplemental Brief in Support of Plaintiffs' Application for Preliminary Injunctive Relief: It is ORDERED that the parties must file their respective responses on or before 5/20/2013, and their respective replies on or before 5/28/2013. Each individual brief is not to exceed ten (10) pages in length. (Ordered by Judge Reed C O'Connor on 5/13/2013) (twd) (Entered: 05/13/2013)
65 Unopposed MOTION for Extension of Time to File Response/Reply re: 61 Proposed MOTION to Intervene as Defendants or in the Alternative, Motion for Leave to Participate as Amici Curiae filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva (Attachments: # 1 Proposed Order) (Jung, Peter) (Entered: 05/16/2013)
66 ORDER granting 65 Motion for Extension of Time to Respond to Proposed Defendant−Intervenors Motion to Intervene. Responses due by 6/17/2013 (Ordered by Judge Reed C O'Connor on 5/17/2013) (trt) (Entered: 05/17/2013)
67 RESPONSE filed by Alejandro Mayorkas, John Morton, Janet Napolitano re: 63 Amended Supplemental Brief in Support (Kirschner, Adam) Modified text on 5/29/2013 (rlw). (Entered: 05/20/2013)

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 11 of 13

05/20/2013 05/22/2013 05/28/2013 05/28/2013
06/11/2013 06/17/2013
07/01/2013 07/31/2013 07/31/2013 07/31/2013
08/28/2013
09/03/2013 09/03/2013 09/25/2013

68 RESPONSE filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva re: 60 Supplemental Memorandum (Kobach, Kris) Modified text on 5/29/2013 (rlw). (Entered: 05/20/2013)
69 MOTION for Leave to File Brief of Amicus Curiae filed by National Immigrant Justice Center with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) A, # 2 Proposed Order) (Little, Dionna) (Entered: 05/22/2013)
70 DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSIVE SUPPLEMENTAL BRIEF REGARDING CIVIL SERVICE REFORM ACT filed by Alejandro Mayorkas, John Morton, Janet Napolitano re: 60 Supplemental Brief (Kirschner, Adam) Modified link/text on 5/29/2013 (rlw). (Entered: 05/28/2013)
71 PLAINTIFF'S SUPPLEMENTAL REPLY BRIEF REGARDING CIVIL SERVICE REFORM ACT filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva re: 63 Amended Supplemental Brief in Support (Kobach, Kris) Modified link/text on 5/29/2013 (rlw). (Entered: 05/28/2013)
72 RESPONSE filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva re: 69 MOTION for Leave to File Brief of Amicus Curiae (Kobach, Kris) (Entered: 06/11/2013)
73 RESPONSE AND OBJECTION filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi re: 61 Proposed MOTION to Intervene as Defendants or in the Alternative, Motion for Leave to Participate as Amici Curiae (Kobach, Kris) (Entered: 06/17/2013)
74 RESPONSE filed by Carolina Canizalez, Pamela Resendiz, University Leadership Initiative re: 69 MOTION for Leave to File Brief of Amicus Curiae (Perales, Nina) (Entered: 07/01/2013)
75 ORDER: Plaintiffs' claims are DISMISSED without prejudice for lack of subject−matter jurisdiction. (Ordered by Judge Reed C O'Connor on 7/31/2013) (axm) (Entered: 07/31/2013)
76 JUDGMENT: Based on the Court's Order dismissing Plaintiffs' claims for lack of subject−matter jurisdiction, this case is DISMISSED without prejudice. (Ordered by Judge Reed C O'Connor on 7/31/2013) (axm) (Entered: 07/31/2013)
***Civil Case Terminated per 76 Judgment. Pursuant to LR 79.2 and LCrR 55.2, exhibits may be claimed during the 60−day period following final disposition (to do so, follow the procedures found at www.txnd.uscourts.gov/Court Records). The clerk will discard exhibits that remain unclaimed after the 60−day period without additional notice. (Clerk to notice any party not electronically noticed.) (ctf) (Entered: 08/01/2013)
77 MOTION to Alter or Amend Judgment filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Kobach, Kris) (Entered: 08/28/2013)
78 Consent MOTION for Extension of Time to File Response/Reply re: 77 MOTION to Alter or Amend Judgment filed by Alejandro Mayorkas, John Morton, Janet Napolitano (Cohen, Bradley) (Entered: 09/03/2013)
79 ELECTRONIC ORDER granting 78 Motion to Extend Time to File Response/Reply. (Ordered by Judge Reed C O'Connor on 9/3/2013) (Judge Reed C O'Connor) (Entered: 09/03/2013)
80 RESPONSE filed by Alejandro Mayorkas, John Morton, Janet Napolitano re: 77 MOTION to Alter or Amend Judgment (Kirschner, Adam) (Entered: 09/25/2013)

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 12 of 13

10/09/2013 12/09/2013 01/08/2014
01/10/2014
01/13/2014 01/17/2014 01/21/2014 01/24/2014 01/27/2014 02/07/2014 02/14/2014 03/05/2014

81 REPLY filed by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva re: 77 MOTION to Alter or Amend Judgment (Kobach, Kris) (Entered: 10/09/2013)
82 ORDER denying 77 Plaintiffs' Motion to Alter or Amend the Judgment. (Ordered by Judge Reed C O'Connor on 12/9/2013) (ctf) (Entered: 12/09/2013)
83 NOTICE OF APPEAL to the Fifth Circuit as to 41 Memorandum Opinion and Order granting in part and denying in part, 23 Motion to Dismiss, 76 Judgment, 75 Order, 82 Order on Motion to Alter Judgment by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi. Filing fee $505, receipt number 0539−5778697. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. (Jung, Peter) Modified on 1/9/2014 to correct text(svc). (Entered: 01/08/2014)
84 Notice of Filing of Official Electronic Transcript of Application for Preliminary Injunction Hearing Proceedings held on 04−08−2013 before Judge Reed C. O'Connor. Court Reporter/Transcriber Denver B. Roden, RPR, RMR, Telephone number 214−753−2298. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. If redaction request filed, this transcript will not be accessible via PACER; see redacted transcript. The clerk will mail a copy of this notice to parties not electronically noticed. (234 pages) Redaction Request due 1/31/2014. Redacted Transcript Deadline set for 2/10/2014. Release of Transcript Restriction set for 4/10/2014. (dbr) (Entered: 01/10/2014)
85 Transcript Order Form: re 83 Notice of Appeal,,, transcript requested by Anastasia Marie Carroll, Christopher L Crane, Ricardo Diaz, James D Doebler, David A Engle, Lorenzo Garza, Felix Luciano, Samuel Martin, Tre Rebstock, Fernando Silva, State of Mississippi for Evidentiary Hearing held on 04−08−13 before Judge O'Connor. (Jung, Peter) (Entered: 01/13/2014)
86 NOTICE OF APPEAL to the Fifth Circuit as to 75 Order, 82 Order on Motion to Alter Judgment by Alejandro Mayorkas, John Morton, Janet Napolitano. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. (Cohen, Bradley) (Entered: 01/17/2014)
USCA Case Number 14−10049 for 83 Notice of Appeal,,, filed by Samuel Martin, Christopher L Crane, Tre Rebstock, Lorenzo Garza, Fernando Silva, David A Engle, State of Mississippi, Felix Luciano, Anastasia Marie Carroll, Ricardo Diaz, James D Doebler. (svc) (Entered: 01/21/2014)
87 Transcript Order Form: re 86 Notice of Appeal, transcript not requested (Kirschner, Adam) (Entered: 01/24/2014)
Record on Appeal for USCA5 14−10049 (related to 86 , 83 appeal): Record consisting of: ECF electronic record, 1 Volume(s) electronic transcript, 1 envelope of original exhibits, certified to USCA. To request a copy of the record (on disk or on paper), contact the appeals deputy in advance to arrange delivery. (svc) (Entered: 01/27/2014)
Record on Appeal for USCA5 14−10049 (related to 86 , 83 appeal): transmitted to Strasburger &Price, LLP on disk only by hand delivery. (svc) (Entered: 02/07/2014)
Record on Appeal for USCA5 14−10049 (related to 86 , 83 appeal): transmitted to United States Dept of Justice on disk only by mail. (svc) (Entered: 02/14/2014)
Record on Appeal for USCA5 14−10049 (related to 86 , 83 appeal): transmitted to United States Dept of Justice on disk only by Federal Express 798115386030 (svc) (Entered: 03/05/2014)

Case: 3:12-cv-3247 As of: 09/27/2015 09:58 PM CDT 13 of 13

07/01/2014 07/22/2015
07/22/2015

Record on Appeal for USCA5 14−10049 (related to 86 , 83 appeal): transmitted to Mexican American Legal Defense &Educational Fund Inc on disk only by Federal Express 770476457814 (svc) (Entered: 07/01/2014)
88 Opinion of USCA in accordance with USCA judgment re 86 Notice of Appeal, filed by John Morton, Alejandro Mayorkas, Janet Napolitano, 83 Notice of Appeal,,, filed by Samuel Martin, Christopher L Crane, Tre Rebstock, Lorenzo Garza, Fernando Silva, David A Engle, State of Mississippi, Felix Luciano, Anastasia Marie Carroll, Ricardo Diaz, James D Doebler. (svc) (Entered: 07/22/2015)
89 JUDGMENT/MANDATE of USCA as to 86 Notice of Appeal, and 83 Notice of Appeal. It is ordered and adjudged that the judgment of the District Court is affirmed. Issued as Mandate: 7/22/15. Pursuant to LR 79.2 and LCrR 55.2, exhibits may be claimed during the 60−day period following final disposition (to do so, follow the procedures found at Exhibit Guide). The clerk will discard exhibits that remain unclaimed after the 60−day period without additional notice. (Clerk to notice any party not electronically noticed.) (svc) (Entered: 07/22/2015)