1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ASYLUMWORKS, et al., 

Plaintiffs,

v.

ALEJANDRO N. MAYORKAS, Secretary, 

United States Department of Homeland 

Security, et al.,

Defendants.

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

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

Seeking vacatur of two rules issued by the Department of Homeland Security (“DHS”)

that, as of August 2020, curtail asylum seekers’ access to employment authorization documents,

plaintiffs—three nonprofit organizations and eighteen individual noncitizen asylum seekers—

now move for summary judgment asserting that the challenged rules are void ab initio because, 

at the time of their promulgation, Chad Wolf was not lawfully serving as Acting Secretary of 

Homeland Security. See Pls.’ Mot. for Partial Summ. J., ECF No. 25; Pls.’ Mem. Supp. Mot. for 

Partial Summ. J. (“Pls.’ Mem.”), at 2, 19, ECF No. 25-1. Specifically, plaintiffs maintain that 

Wolf’s service as Acting Secretary from 2019 to 2021 contravened the Appointments Clause,

Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., Federal Vacancies Reform Act 

(“FVRA”), 5 U.S.C. § 3345 et seq., Homeland Security Act (“HSA”), 6 U.S.C. § 101 et seq., and 

internal DHS orders governing the agency’s line of succession. Pls.’ Mem. at 1-3. Defendants 

have cross-moved for summary judgment, insisting on the legality of Wolf’s appointment and

otherwise asserting that any appointment defects as to one of the challenged rules were cured by 

current DHS Secretary Alejandro Mayorkas’s ratification of that rule in May 2021. See Defs.’ 
2

Cross-Mot. for Partial Summ. J., ECF No. 28; Defs.’ Mem. Supp. Cross-Mot. for Summ. J. 

(“Defs.’ Mem.”), at 1, 28, ECF No. 29. 

Five other district courts across the country and another Judge on this Court have already

concluded that Wolf’s appointment as Acting Secretary was invalid. See Pangea Legal Servs. v.

U.S. Dep’t of Homeland Sec., 512 F. Supp. 3d 966 (N.D. Cal. 2021); Batalla Vidal v. Wolf, 501 

F. Supp. 3d 117 (E.D.N.Y. 2020); Nw. Imm. Rights. Proj. v. USCIS, 496 F. Supp. 3d 31 (D.D.C. 

2020); Imm. Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. 2020); Casa de Md., Inc. v. 

Wolf, 486 F. Supp. 3d 928 (D. Md. 2020); La Clinica De La Raza v. Trump, No. 19-cv-4980, 

2020 WL 7053313 (N.D. Cal. Nov. 25, 2020). 1

 In so doing, one of these courts, on September 

20, 2020, preliminarily enjoined enforcement of aspects of the DHS employment authorization 

rules at issue here, but only as to members of the two organizational plaintiffs in that case. See 

Casa de Md., Inc., 486 F. Supp. 3d at 973-74. 

Finding no reason to depart from the reasoned holding of these other decisions, this Court 

likewise concludes that Wolf’s ascension to the office of Acting Secretary was unlawful. As an 

issue of first impression, the Court further finds that Secretary Mayorkas’s ratification of the socalled “Timeline Repeal Rule” in May 2021 did not cure the defects as to that rule caused by 

Wolf’s unlawful tenure as Acting Secretary. Accordingly, for reasons set forth in detail below, 

plaintiffs’ motion for summary judgment is granted and defendants’ cross-motion for summary 

judgment is denied. 

1 The Government Accountability Office (“GAO”) has also opined that Wolf became Acting Secretary “by 

reference to an invalid order of succession,” which decision was issued in accordance with GAO’s duties, under 5 

U.S.C. § 3349, to notify Congress about FVRA violations in the Executive Branch. Pls.’ Mem., Ex. 5 (GAO Aug. 

14, 2020 Decision), at 1. 
3

I. BACKGROUND

The statutory and regulatory scheme underlying the parties’ dispute is described below, 

followed by the relevant factual and procedural history. A fuller account of the DHS rules 

challenged by plaintiffs is set out in Asylumworks v. Mayorkas, 20-cv-3815 (BAH), 2021 WL 

2227335, at *1-3 (D.D.C. June 1, 2021) (denying defendants’ motion to stay proceedings), but 

need not be repeated here in resolving the instant dispute regarding the legality of Wolf’s 

appointment. 

A. Statutory and Regulatory Background 

Determining whether Wolf lawfully assumed the office of Acting Secretary of Homeland 

Security, and thus had the authority to issue the challenged rules, lies at the labyrinthine interplay 

of various statutes and regulations governing the agency’s line of succession to the Office of 

Secretary, including the FVRA, HSA, and a series of internal DHS directives, which are 

memorialized in several revisions to a document known as Delegation No. 00106. These statutes 

and regulations are summarized below.

1. Federal Vacancies Reform Act 

Enacted in 1998 as a response to perceived “threat[s] to the Senate’s advice and consent 

power,” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 936 (2017), the FVRA provides the default 

framework “for temporarily authorizing an acting official to perform the functions and duties of 

any office of an Executive agency . . . for which appointment is required to be made by the 

President, by and with the advice and consent of the Senate.” 5 U.S.C. § 3347(a). As relevant 

here, the terms of the FVRA command who may assume an office in an acting capacity unless a

separate statutory provision “(A) authorizes the . . . head of an Executive department[] to 

designate an officer or employee to perform the functions and duties of a specified office 

temporarily in an acting capacity; or (B) designates an officer or employee to perform the 
4

functions and duties of a specified office temporarily in an acting capacity.” Id. § 3347(a)(1)(A)-

(B); see also In re Grand Jury Investigation, 315 F. Supp. 3d 602, 664 (D.D.C. 2018) (noting 

that, if another statute designates an officer to assume a role in an “acting capacity,” the FVRA is 

“not the exclusive means for temporarily authorizing” such an officer to fill that vacancy) 

(citations omitted). 

Upon the resignation of an agency official “whose appointment to the office is required to 

be made by the President, by and with the advice and consent of the Senate,” such as the 

Secretary of Homeland Security (“Secretary”), the FVRA dictates that “the first assistant to the 

office of such officer shall perform the functions and duties of the office temporarily in an acting 

capacity subject to the time limitations of section 3346.” 5 U.S.C. § 3345(a). Section 3346 

provides, in turn, that “the person serving as an acting officer . . . under section 3345 may serve 

in the office . . . for no longer than 210 days beginning on the date the vacancy occurs.” Id. § 

3346(a). “If an action is taken by a person who purports to act with the authority of an office to 

which the FVRA applies but who is not serving in accordance with the FVRA, that action ‘shall 

have no force or effect’ and ‘may not be ratified.’” Batalla Vidal, 501 F. Supp. 3d at 128 (citing 

5 U.S.C. § 3348(d)); see also SW Gen. Inc. v. NLRB, 796 F.3d 67, 78 (D.C. Cir. 2015) (“The 

FVRA renders any action taken in violation of the statute void ab initio (citing 5 U.S.C. § 

3348(d)(1)-(2)). 

2. Homeland Security Act 

Operating as an adjunct to the FVRA’s default framework, the HSA designates the 

Deputy Secretary of Homeland Security as “the Secretary’s first assistant for purposes” of the 

FVRA and the Under Secretary for Management as “first assistant to the Deputy Secretary,” also 

for FVRA purposes. 6 U.S.C. § 113(a)(1)(A), (F). Critically, the HSA also provides that 
5

“[n]otwithstanding [the FVRA], the Secretary may designate such other officers of the 

Department in further order of succession to serve as Acting Secretary.” Id. § 113(g)(2)

(emphasis added). Taken together, the FVRA and HSA thus create a succession order for DHS 

that flows from Secretary to Deputy Secretary to Under Secretary for Management, and from 

there to any “such other officers” designated by the Secretary pursuant to her authority under 6 

U.S.C. § 113(g)(2).

3. DHS Delegation No. 106 

Consistent with the FVRA and HSA, on December 15, 2016, then-DHS Secretary Jeh 

Johnson issued a revision to Delegation No. 00106 (“Delegation 106”), titled “DHS Orders of 

Succession and Delegations of Authorities for Named Positions.” Pls.’ Mem., Ex. 2 (Delegation 

106). At DHS, delegations “specify who is authorized to act on behalf of the Secretary” and are

key components of the agency’s “Directive Systems,” which “is an official means of 

communicating to DHS employees the delegations of authority, policies, and procedures 

necessary for DHS to comply with public law, statutes, Executive Orders, regulations, and 

policies.” Pls.’ Reply Supp. Mot. for Partial Summ. J. and Opp’n Defs.’ Cross-Mot. for Partial 

Summ. J. (“Pls.’ Opp’n”), Ex. 1 (Directive Number 112-01, Directives System), ECF No. 31. 

Such delegations form part of what scholars describe as “internal administrative law,” or 

“measures generated by agencies to control their own actions and operations and aimed primarily 

at agency personnel.” Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 

MICH. L. REV. 1239, 1254 (2017).

As relevant here, Delegation 106 “created a bifurcated structure” to govern which DHS 

officials may assume the role of Acting Secretary when the Secretary dies, resigns, or becomes 

unavailable during a disaster or other emergency. Nw. Imm. Rights. Proj., 496 F. Supp. 3d at 54. 
6

First, Section II.A of Delegation 106 established that, in “case of the Secretary’s death, 

resignation, or inability to perform the functions of the Office, the orderly succession of officials 

is governed by Executive Order 13753, as amended on December 9, 2016.” Delegation 106 at 1. 

Through Executive Order 13753 (“E.O. 13753”), then-President Obama delineated a further

order of succession for DHS Secretary beyond that already established in the FVRA and HSA to 

include the Administrator of the Federal Emergency Management Agency (“FEMA”) and the 

Director of the Cybersecurity and Infrastructure Agency (“CISA”) as the officials third and 

fourth in line, respectively, to become Acting Secretary following the Deputy Secretary and

Under Secretary for Management. See E.O. 13753, 81 Fed. Reg. 90,667, 90,667 (Dec. 9, 2016).

2

 

Second, should the Secretary become “unavailable to act during a disaster or catastrophic 

emergency,” Section II.B of Delegation 106 assigned the Secretary’s “authority to exercise the 

powers and perform the functions and duties of [the] office” to the officials identified on a list 

attached as “Annex A.” Delegation 106 at 1. The first four officials identified in Annex A—

Deputy Secretary, Under Secretary for Management, FEMA Administrator, and CISA 

Director—were also the same officials listed in E.O. 13753 as the first four successors to the 

Secretary. See Delegation 106 at 5. Thus, under the plain terms of Delegation 106, as amended 

by then-Secretary Johnson in December 2016, the same order of succession controlled who could 

become Acting Secretary whether the Secretary died, resigned, or became unavailable during a 

disaster or other emergency. This version of Delegation 106 “governed the order of succession 

to the Office of the DHS Secretary from December 15, 2016 until April 10, 2019.” Pls.’ SMF ¶

188, ECF No. 25-3; see also Defs.’ Resp. SMF ¶ 188, ECF No. 29-3. 

2 In E.O. 13753, the officer fourth in the line of succession is identified as the Under Secretary for National 

Protection and Programs. In 2018, however, that role was redesignated as Director of CISA. See Casa de Md., Inc., 

486 F. Supp. 3d at 958 n.15; see also 6 U.S.C. § 652(a)(1)-(2). 
7

B. Factual Background 

1. Secretary Nielsen’s Resignation and the April 2019 Delegation 

DHS Secretary Kirstjen Nielsen, as the only Senate-confirmed DHS Secretary to hold 

office during the tenure of former President Trump, presented her resignation on April 7, 2019, 

effective that same day. Pls.’ SMF ¶ 193; Pls.’ Mem., Ex. 6 (Nielsen Resignation Letter). Later 

that day, at 6:02 P.M., President Trump tweeted that the Commissioner of U.S. Customs and 

Border Protection (“CBP”), Kevin McAleenan—who at the time was seventh in the thencontrolling order of succession established in E.O. 13753 and incorporated by Delegation 106—

would become Acting Secretary following Nielsen’s departure. Pls.’ SMF ¶ 194; Pls.’ Mem., 

Ex. 7 (@realDonaldTrump April 7, 2019 Tweet). At 10:36 P.M. that same evening, Secretary 

Nielsen announced, also via Twitter, that she would remain in her role through April 10, 2019 

“to assist with an orderly transition.” Pls.’ Mem., Ex. 8 (@SecNielsen April 7, 2019 Tweet); 

Pls.’ SMF ¶ 195. 

The day before her departure from DHS, on April 9, 2019, Secretary Nielsen signed a 

memorandum to her from the DHS General Counsel designating an “Order of Succession for the 

Secretary” pursuant to her authority under the HSA. Pls.’ Mem., Ex. 9 (April 9, 2019 

Memorandum from Mitnick to Nielsen), at 1; see also 6 U.S.C. § 113(g)(2) (granting DHS 

Secretary the authority to “designate such other officers of the Department in further order of 

succession to serve as Acting Secretary”). The memorandum stated that Nielsen had expressed 

her “desire to designate certain officers of the Department of Homeland Security . . . in order of 

succession to serve as Acting Secretary” and that her approval of a document attached to the 

memorandum (“April 2019 Delegation”) would “accomplish such designation.” Pls.’ Mem., Ex. 

9 at 1. 
8

The April 2019 Delegation amended Annex A to Delegation 106 and designated a new 

order of succession that bumped-up the CBP Commissioner from seventh to third in the order of 

succession to become Acting Secretary. See id. at 2. As noted, however, under the plain terms 

of Delegation 106, Annex A only provided the succession order in the event of a natural disaster 

or other emergency. Delegation 106 at 1. The April 2019 Delegation “did not change when 

Annex A, rather than E.O. 13753, governed,” and E.O. 13753 still dictated the order of 

succession upon the Secretary’s resignation. Batalla Vidal, 501 F. Supp. 3d at 125; see also Pls.’ 

Mem., Ex. 10 (April 10, 2019 Revision to Delegation 106), at 1. Given that the roles of Deputy 

Secretary, Under Secretary for Management, and FEMA Administrator were all vacant at the 

time of Nielsen’s resignation, see Pls.’ SMF ¶¶ 205-207, E.O. 13753—as implemented via 

Delegation 106—required Christopher Krebs, then the Senate-confirmed CISA Director, id. ¶

208, to become Acting Secretary. This is not what occurred. On April 11, 2019, and as 

announced via Twitter by President Trump days earlier and even prior to Nielsen’s approval of 

the April 2019 Delegation, Kevin McAleenan, who had been serving as CBP Commissioner, 

assumed the office of Acting Secretary at DHS. Id. ¶ 209. 

2. The November 2019 Delegation and McAleenan’s Resignation 

Doing what Secretary Nielsen had failed to do before her resignation, on November 8, 

2019, McAleenan issued another amendment to Delegation 106 (“November 2019 Delegation”) 

to make Annex A—and not E.O. 13753—the directive that controlled the line of succession for 

the office of Secretary in all scenarios, by supplementing when the Secretary was temporarily 

unavailable in an emergency to also include “[i]n case of the Secretary’s death, resignation, or 

inability to perform the functions of the Office.” Pls.’ Mem., Ex. 12 (Nov. 8, 2019 Amendment 

to the Order of Succession for the Secretary of Homeland Security) (amending Section II.A of 
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Delegation 106); id., Ex. 17 (Nov. 14, 2019 Revision to Delegation 106); see also Batalla Vidal, 

501 F. Supp. at 125 (noting that under the November 2019 Delegation “Annex A replaced E.O. 

13753 as the operative document when the Secretary died, resigned, or became unable to 

perform the functions of the office, in addition to its application when the Secretary was 

temporarily unavailable in an emergency”). McAleenan’s November 2019 Delegation also 

altered the list in Annex A by moving up the Under Secretary for Strategy, Policy, and Plans to 

be fourth in the line of succession after the CBP Commissioner. See Pls.’ Mem., Exs. 12, 17. 

Five days later, on November 13, 2019, McAleenan resigned as Acting DHS Secretary. 

Pls.’ SMF ¶ 212. At that time, the first three positions in the line of succession—Deputy 

Secretary, Under Secretary for Management, and CBP Commissioner—were again all vacant. 

Id. ¶ 213. Chad Wolf, who had just been confirmed by the Senate as Under Secretary for 

Strategy, Policy, and Plans and was fourth in the November 2019 Delegation’s revised line of 

succession, thereafter assumed the role of Acting Secretary that same day. Id. ¶ 214; see also

Pls.’ Mem., Ex. 15 (Nov. 13, 2019 Press Release “Chad Wolf Confirmed as Under Secretary”).

3. The Challenged 2020 DHS Rules and Secretary Mayorkas’s May 2021 

Ratification of Timeline Repeal Rule 

 The two DHS rules challenged in this lawsuit were issued during Wolf’s tenure as 

Acting Secretary and both impact the access of asylum seekers to employment authorization 

documents (“EADs”). The first rule, Removal of 30-Day Processing Provision for Asylum 

Applicant-Related Form I-765 Employment Authorization Applicants (“Timeline Repeal Rule”), 

85 Fed. Reg. 37,502, et seq., (June 22, 2020), “eliminated an earlier regulation that imposed a 

thirty-day time limit for the United States Citizenship and Immigration Services . . . to process 

initial EAD applications and became effective August 21, 2020.” Asylumworks, 2021 WL 

2227335, at *1. The second rule, Asylum Application, Interview, and Employment Authorization 
10

for Applicants (“EAD Bar Rule”), 85 Fed. Reg. 38,532, et seq., (June 26, 2020), “modified 

regulations governing asylum applicants’ eligibility for employment authorization and became 

effective on August 25, 2020.” Id.3 In his capacity as Acting Secretary, Wolf “reviewed and 

approved” both rules. Pls.’ SMF ¶¶ 3, 8. 4

 

On August 25, 2020, President Trump announced via Twitter that Wolf would be 

“nominated to be the Secretary of Homeland Security.” Pls.’ Mem., Ex. 25 (@realDonaldTrump 

Aug. 25, 2020 Tweet). Wolf, however, was never confirmed by the Senate as DHS Secretary

during the remainder of President Trump’s term in office. Pls.’ SMF ¶ 234. Following President 

Biden’s election, Alejandro Mayorkas became, on February 2, 2021, the first Senate-confirmed 

DHS Secretary since Nielsen’s resignation in April 2019. Id. ¶ 252. On May 4, 2021, Secretary 

Mayorkas purportedly ratified the Timeline Repeal Rule, id. ¶ 253; see also Defs.’ Reply Supp. 

Mot. to Stay (“Defs.’ Reply Mot. Stay”), Ex. 1 (May 4, 2021 Ratification Order), ECF No. 19, 

but he has not ratified the EAD Bar Rule, Pls.’ SMF ¶ 254. 

C. Procedural Background 

Plaintiffs commenced this action on December 23, 2020, see Compl., ECF No. 1, and 

filed an amended complaint on March 23, 2021, see Am. Compl., ECF No. 12. Plaintiffs 

contend that the Timeline Repeal Rule and EAD Bar Rule must be vacated because they are 

arbitrary and capricious and contrary to the Immigration and Nationality Act (“INA”), in 

3 Asylumworks details the multiple aspects of the EAD Bar Rule contested by plaintiffs, see 2021 WL 

2227335, at *2 n.3, but, as noted, such details are immaterial to resolving the instant cross-motions. 

4 Both rules are also challenged in litigation pending in the District of Maryland, where the court, on 

September 11, 2020, preliminarily enjoined enforcement of the Timeline Repeal Rule in its entirety and of various 

components of the EAD Bar Rule, but this injunction applies only to asylum seekers who are members of the two 

organizational plaintiffs in that case, Casa de Maryland, Inc. and Asylum Seekers Advocacy Project. See Casa de 

Md., Inc., 486 F. Supp. 3d at 973-74. That court is still “considering whether to expand and uniformly apply the 

injunction in response to a pending summary judgment motion seeking to have both rules declared invalid in their 

entirety because Chad Wolf did not lawfully serve as acting DHS Secretary when those rules were promulgated.” 

Asylumworks, 2021 WL 2227335, at *3; see also Casa de Md., No. 20-cv-2118-PX, ECF Nos. 107, 127, 159. 
11

violation of the APA, and because Wolf “was not validly serving as Acting DHS Secretary under 

the Homeland Security Act (“HSA”), Federal Vacancies Reform Act (“FVRA”), and the 

Appointments Clause when he signed the rules.” Am. Compl. ¶ 8.

After seeking three extensions of their deadline to answer, see Min. Orders (March 11, 

2021; Apr. 6, 2021; Apr. 16, 2021), and before filing any responsive pleading, on April 22, 2021, 

defendants moved to stay this case “for the time being” citing “developing administrative 

actions” following the change in political leadership at DHS and the “parallel judicial 

proceedings” in the District of Maryland “that may moot or reshape Plaintiffs’ claims.” Defs.’ 

Mot. to Stay ¶¶ 1, 3, ECF No. 16. Following a round of briefing, the Court denied this stay

request on June 1, 2021, finding that defendants had “failed to carry their burden of establishing 

a need for an indefinite stay while the challenged rules remain largely in effect.” Asylumworks, 

2021 WL 2227335, at *4.5

 On June 8, 2021, the parties requested a bifurcated briefing schedule, 

and the Court subsequently entered, a scheduling order to govern only the briefing of crossmotions for partial summary judgment regarding the validity of Wolf’s appointment. See Joint 

Status Report, ECF No. 23; Min. Order (June 10, 2021). Following the grant of two extensions 

of time requested by defendants, see Min. Orders (July 13, 2021; July 20, 2021), the pending 

cross-motions for summary judgment are now ripe for resolution. 

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 directs that the “court shall grant summary judgment 

if the movant shows that there is no genuine dispute as to any material fact and the movant is 

5 As they have done since the early stages of this litigation, defendants again represent that both the Timeline 

Repeal Rule and EAD Bar Rule may soon be subject to “proposed rulemaking that would rescind or substantively

revise” both rules as part of DHS’s “regulatory agenda” under the leadership of Secretary Mayorkas. Defs.’ Mem. 

at 9; see also Asylumworks, 2021 WL 2227335, at *2 (noting that DHS “anticipates further rulemaking related to 

these two rules, with a notice of proposed rulemaking to be issued by December 2021 and a final rule by June 

2022”). To date, DHS has issued no notice of proposed rulemaking as to the challenged rules. 
12

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see Celotex Corp. v. Catrett, 477 

U.S. 317, 322-23 (1986) (explaining that “the plain language of Rule 56(c) mandates the entry of 

summary judgment” to a moving party “‘entitled to a judgment as a matter of law’ because the 

nonmoving party has failed to make a sufficient showing on an essential element of her case with 

respect to which she has the burden of proof.”). “These standards are fully applicable” to 

motions for summary judgment under the APA. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 884 

(1990). In APA cases such as this one, involving cross-motions for summary judgment, “the 

district judge sits as an appellate tribunal,” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 

2009) (quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)

(alterations in original)), since the “entire case on review is a question of law,’ and the 

‘complaint, properly read, actually presents no factual allegations, but rather only arguments 

about the legal conclusion to be drawn about the agency action,’” id. (quoting Marshall County 

Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993)).

III. DISCUSSION

Plaintiffs argue that the Timeline Repeal Rule and EAD Bar Rule should be vacated “in 

their entirety,” Pls.’ Mem. at 5, because Wolf “took office pursuant to an unlawful modification 

to the order of succession issued by his predecessor, Kevin McAleenan, who was himself 

unlawfully in office and had no power to modify the order of succession” and the length of 

Wolf’s time as Acting Secretary violated both the “FVRA’s 210-day limit on the service of 

acting officials” and the “Appointments Clause’s prohibition on indefinite acting appointments,” 

id. at 2. Defendants counter that Secretary Nielsen’s April 2019 amendment to Delegation 106 

properly allowed McAleenan, and subsequently Wolf, to become Acting Secretary and that, 

regardless of any appointments-defect, the Timeline Repeal Rule remains valid after ratification 
13

by Secretary Mayorkas. Defs.’ Mem. at 1, 28. Plaintiffs have the better arguments tied to the 

plain text of the FVRA and relevant DHS succession orders.

In elevating McAleenan as Acting Secretary in April 2019, plaintiffs are correct that DHS 

failed to follow the lawful order of succession set out in Delegation 106 issued pursuant to the 

Secretary’s authority under the HSA. This necessarily voids McAleenan’s later, November 2019 

revision to Delegation 106 allowing Wolf to become Acting Secretary. The Court also agrees 

with plaintiffs that Secretary Mayorkas’s ratification of the Timeline Repeal Rule in May 2021

was ineffective under the explicit bar on ratification for actions taken in violation of the FVRA,

see 5 U.S.C. § 3348(d)(2), thus making both the Timeline Repeal Rule and the EAD Bar Rule—

for the latter of which no effort at ratification has even been made—void ab initio, see SW Gen. 

Inc., 796 F.3d at 78. Accordingly, plaintiffs’ motion for summary judgment must be granted and 

defendants’ cross-motion denied.

6

A. Wolf Had No Authority To Serve as Acting Secretary of Homeland Security

The legality of Wolf’s service hinges on whether McAleenan could become Acting 

Secretary in the first instance pursuant to the internal DHS directives governing the order of 

succession at the time of Secretary Nielsen’s resignation. Based on the plain language of the

then-controlling version of Delegation 106, the answer is no. 

As noted, the DHS Secretary is authorized to “designate such other officers of the 

Department in further order of succession to serve as Acting Secretary” beyond the “first 

assistant” roles identified in the FVRA and HSA. 6 U.S.C. § 113(g)(2). In light of this broad 

delegation from Congress, the parties thus do not dispute that Secretary Nielsen had authority 

6 Since Wolf could not lawfully serve as Acting Secretary based on the plain language of Delegation 106, 

which controlled the line of succession pursuant to the Secretary’s exercise of her authority under the HSA, the 

Court need not address plaintiffs’ alternative arguments that the length of Wolf’s tenure as Acting Secretary violated 

the limits on acting service imposed under both the FVRA and Appointments Clause. 
14

under Section 113(g)(2) of the HSA to amend the succession order in the event of either a 

resignation or emergency. See Pls.’ Mem. at 23; Defs.’ Mem. at 12. Indeed, this is precisely the 

authority that Secretary Nielsen exercised when she issued the April 2019 Delegation revising 

Delegation 106 and designating an “Order of Succession for the Secretary.” Pls.’ Mem., Ex. 9. 

Nevertheless, Secretary Nielsen’s April 2019 Delegation, which bumped-up the CBP 

Commissioner to third in the line of succession in Annex A to Delegation 106, altered the 

succession order controlling who could become Acting Secretary only if the Secretary became 

unavailable “during a disaster or catastrophic emergency.” See Pls.’ Mem., Ex. 10 at 1. The 

April 2019 Delegation left unchanged the order of succession in case of the Secretary’s 

resignation, which remained subject to the terms of E.O. 13753 (designating the Deputy 

Secretary, Under Secretary for Management, FEMA Administrator, and CISA Director as the 

first four successors). See id.; see also Pangea Legal Servs., 512 F. Supp. 3d at 974 (April 2019 

Delegation “changed only Annex A, which was the order of succession to be used to determine 

who would perform the duties of Secretary in the event of a disaster or emergency,” and not 

“what should happen in the event of resignations or other vacancies.”). Thus, based on the 

unambiguous terms of the April 2019 Delegation, McAleenan—who was then the CBP 

Commissioner and the next available Senate-confirmed official listed on Annex A—could have 

properly become Acting Secretary as the result of Nielsen’s unavailability only “during a disaster 

or catastrophic emergency.” Pls.’ Mem., Ex. 10 at 1. McAleenan, however, possessed no 

authority to be Acting Secretary upon Nielsen’s resignation, at which point CISA Director 

Christopher Krebs should have assumed the role of Acting Secretary, in accordance with E.O. 

13753. Id. Since McAleenan “had no authority, the November [2019] Delegation [he issued]—

which had the effect of implanting Mr. Wolf as Acting Secretary of Homeland Security—was 
15

not an authorized agency action.” Batalla Vidal, 501 F. Supp. 3d at 132; see also Pangea Legal 

Servs., 512 F. Supp. 3d at 974 (“Because the passing of the torch from Nielsen to McAleenan 

was ineffective, the attempt by McAleenan to pass it in turn to Wolf has no legal effect 

whatsoever.”).

Defendants remarkably insist that “the plain terms of the [April 2019 Delegation] make 

clear that it not only revised Annex A, but also used Annex A to designate the order of 

succession” in the event of resignation. Defs.’ Mem. 20; id. at 16 (arguing the April 2019 

Delegation “ensured that the order of succession in the event of vacancy and the order of 

delegation in cases of emergency would be the same”). For instance, defendants assert that when 

Section II.A “of Delegation 00106 stated that the order of succession ‘is governed by’ Executive 

Order 13,753, it was not establishing an order of succession; it was merely identifying the 

document that did so,” and for that reason there was “no need for Secretary Nielsen to amend the 

text of” Section II.A to properly elevate the CBP Commissioner as Acting Secretary upon her 

resignation. Id. at 18. Defendants also point to Nielsen’s “manifest intent,” id. at 17, and 

“[c]ontemporaneous official actions by the Department of Homeland Security confirm[ing] that 

understanding” of the April 2019 Delegation, id. at 20. The Court rejects this invitation to 

engage in such interpretative acrobatics. As aptly put by the Batalla Vidal court, defendants’ 

“reading of the documents is tortured” and “urges the court to ignore official agency policy 

documents and invalidate the plain text of the April [2019] Delegation.” 501 F. Supp. 3d at 132. 

This Court thus “credits the text of the law over ex post explanations that the text means 

something other than what it says.” Id. Indeed, if defendants’ construction of Nielsen’s April 

2019 Delegation were correct, McAleenan would have had little reason for his own effort in the 
16

November 2019 Delegation to expand the scenarios in which Annex A controlled the line of 

succession for the Office of Secretary.

The undisputed facts and administrative record make clear that neither McAleenan nor 

Wolf possessed lawful authority to serve as Acting Secretaries of Homeland Security.7 

Accordingly, the Timeline Repeal Rule and EAD Bar Rule promulgated during Wolf’s tenure as 

Acting Secretary have “no force or effect” under the FVRA, 5 U.S.C. § 3348(d)(1), and were 

issued “in excess of . . . authority” under the APA, 5 U.S.C. § 706(2)(C). 

B. Ratification of the Timeline Repeal Rule Is Statutorily Barred

In light of the determination that Wolf could not lawfully wield authority as Acting 

Secretary, plaintiffs next urge vacatur of both the Timeline Repeal Rule and the EAD Bar Rule 

as void ab initio. See Pls.’ Mem. 43-45. No effort has been made to ratify the EAD Bar Rule, 

Pls.’ SMF ¶ 254, but Secretary Mayorkas took the step of ratifying the Timeline Repeal Rule in 

May 2021, id. ¶ 253; see also Defs.’ Reply Mot. Stay, Ex. 1 (May 4, 2021 Ratification Order). 

7 In Northwest Immigrant Rights Project, another Judge on this Court agreed with an argument presented in 

that case by the government—contrary to this Court’s holding, supra in Part III.A—that the plaintiffs were “not 

likely to succeed on the merits of their claim that Nielsen’s flawed appointment of McAleenan” rendered invalid a 

DHS rule subsequently enacted during Wolf’s tenure as Acting Secretary. 496 F. Supp. 3d at 61. Central to that 

conclusion was a series of measures taken by then-FEMA Administrator Peter Gaynor, who, purportedly “in 

response to both the ongoing litigation and the GAO opinion” finding Wolf’s appointment invalid, assumed the 

office of Acting Secretary in the fall of 2020, further amended the line of succession, and issued delegation orders 

authorizing Wolf to ratify his prior actions as Acting Secretary, including his approval of the rule at issue in that 

litigation. See id. at 57; id. at 61 (“[T]he Court concludes that Wolf’s ratification was likely effective, at least to the 

extent that he was serving lawfully after Gaynor purported to amend the order of succession.”). 

In this case, defendants have abandoned any such theory that earlier ratifications, or other purported 

actions, by either Gaynor or Wolf may salvage the validity of the Timeline Repeal Rule and EAD Bar Rule. See 

Defs.’ Mem. at 14 n.3 (noting that, “[w]hile the Department of Homeland Security . . . undertook a series of 

measures to have Wolf ratify his and Acting Secretary McAleenan’s prior actions,” defendants “do[] not present any 

argument regarding those ratifications in this brief”); see also Pangea Legal Servs., 512 F. Supp. 3d at 975 (“Gaynor 

could not have designated Wolf to be Acting Secretary, and . . . Wolf’s effort to ratify his . . . actions as Acting 

Secretary is of no moment legally.”); Batalla Vidal, 501 F. Supp. 3d at 132-33 (same). Accordingly, defendants

argue here that only Secretary Mayorkas’s May 2021 ratification of the Timeline Bar Rule had legal consequence. 

See Defs.’ Mem. at 28-33; Defs.’ Opp’n at 2-9. In any event, Northwest Immigrant Rights Project ultimately held 

that Wolf’s designation as Acting Secretary was ineffective, and the rule at issue there “adopted without lawful 

authority,” on the alternative basis—not briefed by the parties in this case—that Wolf was designated Acting 

Secretary by another Acting Secretary and, under § 113(g)(2) of the HSA, an “Acting Secretary may not amend the 

Department’s order of succession.” 496 F. Supp. 3d at 70 (emphasis added). 
17

In plaintiffs’ view, Secretary Mayorkas’s May 2021 ratification of the Timeline Repeal Rule is 

ineffective because, inter alia, “the FVRA’s anti-ratification penalty still prohibited anyone else 

from ratifying the rule.” Pls.’ Mem. at 42. Defendants counter that even if Wolf’s appointment 

was improper, FVRA’s § 3348(d) nevertheless “does not prohibit ratification of the Timeline 

Repeal Rule,” Defs.’ Mem. at 29, and thus Secretary Mayorkas’s May 2021 ratification “cures 

any alleged defects in the rule arising” from Wolf’s service as Acting Secretary, id. at 28.

Specifically, defendants contend that the § 3348(d) anti-ratification provision “does not 

encompass functions or duties that may be delegated to other officials,” such as the Secretary’s 

rulemaking authority. Id. at 30. Defendants’ reading of the statute, however, is inconsistent with 

both the plain terms and purpose of the FVRA. The Court thus agrees with plaintiffs that

Secretary Mayorkas’s May 2021 ratification of the Timeline Repeal Rule did not cure that rule’s 

approval and issuance by Wolf, who was never lawfully designated Acting Secretary. 

The FVRA’s anti-ratification provision has two subsections. The first subsection

provides broadly that an “action taken by any person who is not acting under section 3345, 3346, 

or 3347 . . . in the performance of any function or duty of a vacant office” to which the FVRA 

applies “shall have no force or effect.” 5 U.S.C. § 3348(d)(1). The second subsection specifies 

that an “action that has no force or effect under” § 3348(d)(1) “may not be ratified.” Id. §

3348(d)(2) (emphasis added). Here, the parties do not dispute that “the FVRA applies to the 

Office of the Secretary, and thus the [first subsection] giving ‘no force or effect’ to the actions of 

acting officials serving unlawfully applies to McAleenan and Wolf,” even though both men 

assumed office pursuant to the Secretary’s authority, under the HSA, to designate a further order 

of succession, as provided in 6 U.S.C. § 113(g)(2). Nw. Imm. Rights. Proj., 496 F. Supp. 3d at 
18

59.8 Instead, the parties clash over the scope of what constitutes a “function or duty” for 

purposes of § 3348(d)(1), which phrase is defined, in relevant part in another FVRA section, as 

“any function or duty of the applicable office that . . . is established by statute[] and . . . is 

required by statute to be performed by the applicable officer (and only that officer).” 5 U.S.C. § 

3348(a)(2)(A)(i)-(ii). 

Defendants posit that the covered “functions or duties” include only those that are 

nondelegable, see Defs.’ Mem. at 30, because, as defined in § 3348(a)(2)(A)(i)-(ii), the duty or 

function “must be statutorily ‘required’ to be ‘performed’ . . . by only that officer,” Defs.’ Opp’n 

at 3 (quoting 5 U.S.C. § 3348(a)(2)(A)(ii)) (emphasis added). Based on that narrow construction 

of the statutory text, defendants assert that, since the DHS Secretary may delegate to others the 

responsibility of issuing rules like the Timeline Repeal Rule, id. at 2 (quoting 6 U.S.C. § 

112(b)(1)), Wolf’s promulgation of the rule was “not a function or duty as defined by §

3348(a)(2) and thus [is] not subject to the Federal Vacancies Reform Act’s ratification bar,” 

Defs.’ Mem. at 33. Plaintiffs respond that the “FVRA does not define ‘function or duty’ of a 

vacant office in terms of what can be delegated” and, in any event, the “FVRA’s plain text 

dictates that the anti-ratification provision applies to all statutorily prescribed functions of a 

given office.” Pls.’ Opp’n at 38. 

8 The parties’ agreement on this point is correct. As noted supra in Part I.A.1, § 3347(a) of the FVRA

contemplates that the FVRA remains the default framework for authorizing an official temporarily to assume a role 

requiring nomination by the President and confirmation by the Senate unless “a statutory provision expressly . . . 

authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to 

perform the functions of a specified office temporarily in an acting capacity” or “designates an officer or employee 

to perform the functions and duties of a specified office temporarily in an acting capacity.” 5 U.S.C. § 

3347(a)(1)(A)-(B). The HSA is such “a statutory provision expressly,” id. § 3347(a)(1)(A), identifying additional 

DHS officers to serve as Acting Secretary and also authorizing the DHS Secretary to designate a further order of 

succession beyond that delineated by the FVRA and HSA. See 6 U.S.C. § 113(a)(1), (g)(2). While Secretary 

Nielsen’s designation of McAleenan as Acting Secretary directly emanated from her HSA authority, the FVRA’s 

anti-ratification provision “does not by its terms apply only to acting officials designated to serve pursuant to the 

FVRA, but, rather, applies to a ‘vacant office to which’ the FVRA applies.” Nw. Imm. Rights Proj., 496 F. Supp. 3d 

at 58 (quoting 5 U.S.C. § 3348(d)). 
19

Defendants are correct up to a point: the DHS Secretary indeed retains wide discretion to 

“delegate any of the Secretary’s functions to any officer, employee, or organizational unit of the 

Department.” 6 U.S.C. § 112(b)(1). The Immigration and Nationality Act also indisputably 

grants the DHS Secretary general rulemaking authority to issue regulations affecting asylum 

seekers’ access to EADs like those plaintiffs challenge here, see 8 U.S.C. § 1103(a), and 

plaintiffs point to no statutory provision limiting the Secretary’s ability to delegate this

rulemaking function, see Pls.’ Opp’n at 39-40. Nevertheless, the Court is unpersuaded that the 

delegable nature of the Secretary’s rulemaking power makes the FVRA’s anti-ratification 

provision wholly inapplicable to rules promulgated by an officer without lawful authority. 

To start, the FVRA does not limit the functions and duties subject to 5 U.S.C. § 3348(d)

to only those denominated as “nondelegable,” a word that “appears nowhere in the statute.”

L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 33 (D.D.C. 2020); see also Behring Regional Ctr. LLC 

v. Wolf, No. 20-cv-09263-JSC, 2021 WL 2554051, at *8 (finding that an argument identical to 

defendants’ “is foreclosed by the FVRA’s plain and unambiguous language”), appeal dismissed, 

No. 21-16421 (9th Cir., Jan. 7, 2022). Defendants’ import of a stringent “nondelegable” function 

or duty limitation into § 3348(d) is also contrary to both the Supreme Court’s and the D.C. 

Circuit’s broader, plain meaning construction of § 3348(d). In NLRB v. SW General, Inc., the 

Supreme Court noted that the “FVRA ensures compliance by providing that, in general, ‘any

function or duty of a vacant office’ performed by a person not properly serving under the statute 

‘shall have no force or effect.’” 137 S. Ct. at 937 (quoting 5 U.S.C. § 3348(d)(1)) (emphasis 

supplied). During earlier proceedings in the same case, the D.C. Circuit likewise noted that the 

“FVRA renders any action taken in violation of the statute void ab initio.” SW General, Inc., 

796 F.3d at 78, aff’d, 137 S. Ct. 929 (2017) (emphasis added). Other Circuits across the country 
20

have adopted similarly broad understandings of § 3348(d). See, e.g., NLRB v. Newark Elec.

Corp., 14 F.4th 152, 161 (2nd Cir. 2021) (“In other words, under section 3348, if an official who 

is exercising the duties of a vacant office in an acting capacity does not meet the requirements of 

sections 3345, 3346, or 3347, then that official’s actions have no force or effect and cannot be 

ratified.”).

Moreover, in crafting § 3348, Congress expressly exempted from its reach several 

offices, including the General Counsel of both the National Labor Relations Board and Federal 

Labor Relations Authority, as well as any Senate-confirmed Inspector General and Chief 

Financial Officer. 5 U.S.C. § 3348(e). Under defendants’ construction of the statute, the DHS 

Secretary would be functionally added to that list of exempted officials since most, if not all, of 

his functions and duties are delegable and thus none would be covered by the FVRA’s nonratification provision. See Behring, 2021 WL 2554051, at *6. Put another way, defendants’ 

proposed construction of § 3348(d) would largely insulate the Office of DHS Secretary from the 

key enforcement mechanism Congress expressly provided in the FVRA. The Court thus agrees 

with plaintiffs that accepting defendants’ interpretation of the statutory language “would 

eviscerate the FVRA’s remedial scheme.” Pls.’ Opp’n at 41.

Restricting the coverage of § 3348(d) to solely nondelegable functions and duties would 

also contravene Congress’s stated purpose in enacting the FVRA. The FVRA “was framed as a 

reclamation of the Congress’s Appointments Clause power,” SW Gen. Inc., 796 F.3d at 70, and

legislated in reaction to Doolin Security Savings Bank, F.S.B. v. Office of Thrift Supervision, 139 

F.3d 203 (D.C. Cir. 1998). In Doolin, the D.C. Circuit deployed the ratification doctrine

expansively to uphold an enforcement action initiated by an acting officer without first deciding 

whether the acting officer lawfully occupied his position. See 139 F.3d at 214; see also 144 
21

Cong. Rec. S6414 (noting “[i]t is extremely important to . . . impose a sanction for 

noncompliance” in the FVRA and that “[o]verruling several portions of [Doolin] have [sic.] 

become a priority); id. (“Actions taken by any acting official in violation of [the FVRA] would 

be of no effect, and no one would be permitted to ratify the actions of the acting official that 

were taken in violation of the vacant office provisions.”). As such, the “FVRA’s prohibition on 

ratification was designed to prevent the practice of a properly appointed official reissuing a 

decision taken in violation of FVRA provisions.” Pub. Emp. for Envtl. Responsibility v. Nat’l 

Park Serv., No. 19-cv-3629 (RC), 2021 WL 1198047, at *15 (D.D.C. March 30, 2021); see also 

L.M-M., 442 F. Supp. 3d at 34 (noting that the construction of § 3348(d) defendants propose here 

“is at odds with the statutory purpose of the FVRA”). That is precisely the factual backdrop to 

this litigation. 

Notwithstanding the FVRA’s plain terms and stated purpose, defendants rely on a recent 

D.C. Circuit case, Guedes v. ATF, to argue more broadly that “a properly appointed official’s 

ratification of an allegedly improper official’s prior actions . . . resolves the claim on the merits.” 

Defs.’ Mem. at 28 (quoting 920 F.3d 1, 13 (D.C. Cir. 2019)). This decision, however, is of no 

avail to defendants. In Guedes, which involved an APA challenge to a rule issued by the Bureau 

of Alcohol, Tobacco, Firearms, and Explosives, the plaintiff conceded the validity of the 

Attorney General’s ratification of the challenged rule for purposes of both his statutory and 

Appointments Clause claims and, consequently, the effectiveness of the ratification was neither 

litigated nor at issue. 920 F.3d at 12. Guedes therefore provides no precedential force in

resolving the parties’ competing interpretations of the FVRA’s anti-ratification provision. See 

Nw. Imm. Rights Proj., 496 F. Supp. 3d at 61 (agreeing that Guedes “does not establish a binding 

rule” regarding the effect of ratifying agency rules issued by unauthorized officers). 
22

In sum, the Court concludes that the § 3348(d)(2) ratification bar applies to all 

unauthorized actions taken “in the performance of any function or duty of a vacant office,” 

regardless of whether such functions or duties may be delegated. As a result of the statutory 

anti-ratification bar, the Timeline Repeal Rule, which was approved and issued by Wolf while 

unlawfully serving as Acting Secretary, has “no force or effect,” see 5 U.S.C. § 3348(d)(1), and 

as an action without “force or effect under” the FVRA, it could not be ratified, see id. §

3348(d)(2). Despite Secretary Mayorkas’s purported May 2021 ratification, the Timeline Repeal 

Rule thus remains void.

***

The parties in this case give little attention to the scope of the remedy following a 

determination that the Timeline Repeal Rule and EAD Bar Rule are void ab initio. Plaintiffs 

simply argue that both rules should be vacated “in their entirety,” see Pls.’ Mem. 43-45, while 

defendants are silent on the remedy should the Court determine, as it has, that Wolf lacked 

authority to promulgate the challenged regulations. 

Upon reaching the conclusion that agency regulations are unlawful and void, vacatur is 

the “normal remedy,” Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014),

and the “ordinary result” is that the rules are set aside in full— “not that their application to the 

individual petitioners is proscribed,” National Min. Ass’n v. U.S. Army Corps of Engineers, 145 

F.3d 1399, 1409 (D.C. Cir. 1998) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. 

Cir. 1989)). In keeping with this general, longstanding principle, other courts holding that Wolf 

did not lawfully serve as Acting Secretary have vacated the challenged agency actions at issue in 

those cases that had been promulgated under his unlawful tenure. See, e.g., Batalla Vidal v. 

Wolf, 17-cv-5228 (NGG), 2020 WL 7121849, at *1 (E.D.N.Y. Dec. 4, 2020) (“[B]ecause Mr. 
23

Wolf was without lawful authority to serve as Acting Secretary of DHS, the Wolf Memorandum 

is VACATED.”). Here, because the Timeline Repeal Rule and EAD Bar Rule “have no force or 

effect,” 5 U.S.C. § 3348(d)(1), they must also be vacated and “set aside” as actions taken “in 

excess of statutory . . . authority,” 5 U.S.C. § 706(2)(C).

The Court is mindful of its discretion “in limited circumstances” to “remand without 

vacating the agency’s action,” guided by consideration, first, of “the seriousness of the action’s 

deficiencies and, second, [by] the likely disruptive consequences of vacatur.” American Great 

Lakes Ports Ass. v. Schultz, 962 F.3d 510, 519 (D.C. Cir. 2020) (internal quotations omitted). 

Such an approach is not without critics. See Comcast Corp. v. FCC, 579 F.3d 1, 10 (D.C. Cir. 

2009) (Randolph, J., concurring) (positing, based on the plain text of 5 U.S.C. § 706(2), “that 

whenever a reviewing court finds an administrative rule or order unlawful, the Administrative 

Procedure Act requires the court to vacate the agency’s action”); Milk Train, Inc. v. Veneman, 

310 F.3d 747, 757 (D.C. Cir. 2002) (Sentelle, J., dissenting) (same); Checkosky v. SEC, 23 F.3d 

452, 491 (D.C. Cir. 1994) (Randolph, J., concurring) (same). Nevertheless, the D.C. Circuit has 

recently cautioned that “remand without vacatur remains an exceptional remedy,” American 

Great Lakes Ports Ass., 962 F.3d at 519, and is usually appropriate only when, unlike the 

circumstances in this case, an agency action’s defect “lay in the lack of reasoned 

decisionmaking” or “the order was otherwise arbitrary and capricious,” Int’l Union, UMW v. 

FMSHA, 920 F.2d 960, 966 (D.C. Cir. 1990); see also United Steel v. Mine Safety & Health 

Administration, 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“In rare cases . . . we do not vacate the 

action but instead remand for the agency to correct its errors.”). When “the deficiencies that the 

court has identified are substantively fatal”—such as the issuance of the challenged rules here 

without lawful authority and in violation of the FVRA—“it is clear beyond cavil that the 
24

common practice is to vacate the agency’s [action].” Kiakombua v. Wolf, 498 F. Supp. 3d 1, 51 

(D.D.C. 2020) (Brown Jackson, J.). 

The plain terms of the FVRA remove remedial discretion by directing that unlawful 

actions under that statute are void ab initio, thereby rendering the rules without “force or effect” 

and requiring vacatur. See 5 U.S.C. § 3348(d)(1); cf. FCC v. NextWave Personal Comms. Inc., 

537 U.S. 293, 300 (2003) (“In all cases agency action must be set aside if the action . . . failed to 

meet statutory, procedural, or constitutional requirements.”). Perhaps cognizant that no remedy 

other than vacatur is appropriate should plaintiffs prevail on their FVRA claim, defendants offer 

no argument for remand without vacatur or attempt to show vacatur’s “likely disruptive 

consequences” as to either regulation. American Great Lakes Ports Ass., 962 F.3d at 519. 

Defendants’ silence speaks volumes as to the required remedy. In any event, remand without 

vacatur would be entirely ineffective here: the appointments defect identified in the challenged 

rules cannot be cured through improved agency decisionmaking because the rules are instead 

void ab initio since they were rendered in violation of the FVRA during the tenure of an Acting 

Secretary who could not lawfully exercise authority as head of DHS. SW Gen., Inc., 137 S. Ct. 

at 938 n.2. 

Following the normal course upon determining that a regulation was issued in excess of 

statutory authority, 5 U.S.C. § 706(2)(c), and in accordance with the remedy that Congress 

specifically prescribed in the FVRA, 5 U.S.C. § 3348(d), both the Timeline Repeal Rule and 

EAD Bar Rule are therefore vacated. Given that plaintiffs’ remaining claims challenging these 

same two rules are now moot, this case is resolved and will be closed. 
25

IV. CONCLUSION 

For the foregoing reasons, plaintiffs are entitled to summary judgment, and the Timeline 

Repeal Rule and EAD Bar Rule must be vacated under both the FVRA, 5 U.S.C. § 3348(d)(1), 

and the APA, 5 U.S.C. § 706(2)(C). Accordingly, plaintiffs’ motion for summary judgment, 

ECF No. 25, is GRANTED, and defendants’ cross-motion, ECF No. 28, is DENIED. An order 

consistent with this Memorandum Opinion will be filed contemporaneously. 

Date: February 7, 2022

_________________

BERYL A. HOWELL 

Chief Judge