FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EAST BAY SANCTUARY COVENANT; AL OTRO LADO; INNOVATION LAW LAB; CENTRAL AMERICAN RESOURCE CENTER,

Plaintiffs

- Appellees,

v. WILLIAM P. BARR, Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; JAMES MCHENRY, Director of the Executive Off

ice for Immigration Review, in his official capacity; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; KEVIN K. MCALEENAN, Acting Secretary of Homeland Security, in his official capacity; U.S. DEPARTMENT OF HOMELAND SECURITY; KENNETH T. CUCCINELLI, Acting Director of the U.S. Citizenship and Immigration Services, in his official capacity; JOHN P. SANDERS, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; U.S. CUSTOMS AND BORDER P ROTECTION; MATTHEW ALBENCE, Acting Director of Immigration and Customs Enforcement, in his official capacity; IMMIGRATION AND CUSTOMS ENFORCEMENT, No. 19

- 16487
D.C. No. 3:19

- cv - 04073

- JST Northern District of California , San Francisco
ORDER 

# FILED

AUG 16 2019
MOL LY C. DWYER, CLERK U.S. COURT OF APPEAL S2 19

- 16487 Defendants

- Appellants.

Before: TASHIMA, M. SMITH, and BENNETT, Circuit Judges.
A ppellants seek a stay pending appeal of the district court’s July 24, 2019 order preliminar il y enjoining the Department of Justice and Department of Homeland Security ’s joint interim final rule, “Asylum Eligibility and Procedural Modifications” (the “Rule”), 84 Fed. Reg. 33,829 (July 16, 2019). 1
The district court found that the Rule likely did not comply with the Administrative Procedure Act’s (APA) notice

- a nd

- comment and 30

- day grace period requirements because A ppellants did not adequately support invocation of the “good cause” and “foreign affairs” exemptions under the APA. See 5 U.S.C. § 553(a)(1), (b)(1)(B), (d)(3); Buschmann v. Schweiker , 676 F.2d 352, 357 (9th Cir. 1982) (good cause exemption “should be interpreted narrowly so that the exception will not swallow the rule” (internal citations omitted) ); Yassini v. Crosland , 618 F.2d 1356, 1360 n.4 (9th Cir. 1980) (foreign affairs exemption “would become distended” if applied to immigration rules generally and requires showing that ordinary public noticing would “ provoke definitely undesirable

1 The State of Arizona’s amicus brief in support of A ppellants’ motion has been filed. The Professors of Immigration Law’s motion for leave to file an amicus brief in opposition to A ppellants’ motion (Docket Entry No. 28) is granted, and the brief is filed.3 19

- 16487

international consequences ”). We conclude that A ppellants have not made the required “strong showing” that they are likely to succeed on the merits on this issu e. H ilton v. Braunskill , 481 U.S. 770, 776 (1987)

. 2 Consequently, we deny t he motion for stay pending appeal (Docket Entry No. 3) insofar as the injunction applies within the Ninth Circuit

. 3 We grant the motion for stay pending appeal insofar as the injunction applies outside the Ninth Circuit, because the nationwide scope of the injunction is not

2 O ur finding that A ppellants have not made a “strong showing” does not bind the merits panel in reviewing this aspect of the merits , as that is not the standard the merits panel will apply

. See Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). 3 We do not assess A ppellants’ remaining arguments as to likelihood of success on the merits and do not reach the remaining Hilton factors. See Nken v. Holder , 556 U.S. 418, 435 (2009) (stating that the likelihood of success on the merits factor is one of the “most critical ” and must be established before considering the last two stay factors) ; c f. California v. Aza r , 911 F.3d 558, 575 (9th Cir. 2018 ) (“Likelihood of success on the merits is the most important factor; if a movant fails to m eet this threshold inquiry, we need not consider the other factors.” (internal quotation mark s omitted) (quoting Disney Enters., Inc. v. VidAngel, Inc. , 869 F.3d 848 , 856 (9th Cir. 2017) ) )

.4 19

- 16487

supported by the record as it stands

. 4 Cf. City and County of San Francisco v. Trump , 897 F.3d 1 225, 1 2 43

– 45 (9th Cir. 2018)

. 5
An injunction must be “ narrowly tailored to remedy the specific harm shown

. ” Id. at 1244 (quoting Bresgal v. Brock , 843 F.2d 1163, 1170 (9th Cir. 1987) )

. We have upheld nationwide injunctions where such breadth was necessary
to re medy a plaintiff

’ s harm

. See, e.g. , i d

. ; California v. Azar , 911 F.3d 558, 5 82 (9th Cir. 2018) (“A lthough there is no bar against nationwide relief in federal district court

. . . such b road relief must be necessary to give prevailing parties the

4 The dissent, without citing any authority, argues that “it is [not] within a motions panel’s province to parse the record for error at this stage” and accuses us of “[going] beyond the recognized authority of a motions panel” by granting the motion for a stay pending appeal insofar as the injunction applies outside the Ninth Circuit . We have two responses. First, we did not have to “parse” the record for error. A ppellants’ stay motion specifically argues that the district cou rt erred in imposing a nationwide injunction . Moreover, the three sentences that the district court provided to support the imposition of a nationwide injunction

— none of which explain s why it believed a nationwide injunction was necessary in this case

— make clear that it failed to undertake the analysis necessary before granting such broad relief. Second, other motions panels of our court have reviewed the scope of injunctive relief gra nted by district courts. See, e.g. , E. Bay Sanctuary Covenant v. Trump , No. 18

- 17274, 2018 WL 8807133, at * 24 (9th Cir. Dec. 7, 2018) ; Hawaii v. Trump , No. 17

- 17168, 2017 WL 5343014, at *1 (9th Cir. Nov. 13, 2017)

. We think these decisions illustrate tha t it is indeed within our province

— our duty, even

— to review whether the district court abused its discretion in granting a nationwide injunction. 5 The dissent criticizes our reliance on Trump , 897 F.3d 1225 , because the procedural posture in this case is different. We recognize this difference as we cite Trump as an analogous case supporting our decision because, notwithstanding the different procedural posture, the issue in that case

— whether the scope of t he injunction was appropriate

— is the same issue before us. See id. at 1244

– 45.5 19

- 16487

relief to which they are entitled. ” (internal quotation mark s and alterations omitted) (quoting Bres gal , 843 F.2d at 1170

– 71) )

. These are, however, “exceptional cases.” Trump , 897 F.3d at 1 244. T o permit such broad injunctions as a general rule , without an articulated connection to a pla i ntiff’s particular harm, w ould unnecessarily “stymie novel legal challenges and robust debate” arising in different judicial districts

. Id. ; see also Azar , 911 F.3d at 5 83 (“The Supreme Court has repeatedly emphasized that nationwide injunctions have detrimental consequences to the development of law and deprive appellate courts of a wider range of perspectives. ” )

. Here, the district court failed to discuss whether a nationwide injunction is necessary to remedy Plaintiffs’ alleged harm. Instead, in conclusory fashion, the district court stated that nationwide relief is warranted simply because district
courts have the authority to impose such rel ief in some cases and because such relief has been applied in the immigration context. The district court clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs’ alleged harms. And , based on the limited record be fore us, we do not believe a nationwide injunction is justified

. Our dissenting colleague believes that a nationwide injunction is appropriate simply because this case presents a rule that applies nationwide. T hat view , however, ignores our well

- establi shed rule that injunctive relief “must be tailored6 19

- 16487

to remedy the specific harm alleged.” Lamb

- Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (citations omitted). Indeed, were we to adopt the dissent’s view, a nationwide injunction would result any time an enjoined action has potential nationwide effects

. Such an approach would turn broad injunctions into the rule rather than the exception. Under our case law, however, all injunction s

— even one s involving national policie s

— must be “narrowly tailored to remedy the specific harm shown.” Trump , 897 F.3d at 1244 (quoting Bresgal , 843 F.2d at 1170 )

. We agree with our dissenting colleague that “ time does not permit a full exploration of the merits of the ‘ nationwid e’ issue .” But whereas he believes that such a factor supports the granting of a nationwide injunction until a merits panel

can address the case , we reach precisely the opposite conclusion. “ National injunctions interfere with good decisionmaking by the fe deral judiciary. ” Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction , 131 Harv. L.
Rev. 417, 4 61 (2017)

. They “deprive” other parties of “the right to litigate in other forums.” Azar , 911 F.3d at 583. Based on the briefing and limi ted record before us, and absent an explanation by the district court as to why a nationwide injunction is necessary to remedy Plaintiffs’ alleged harm in this case, we must grant the motion for stay pending appeal insofar as the injunction applies outside the Ninth Circuit.7 19

- 16487

Our dissenting colleague also argues that it is “perplexing” that the government’s failure to demonstrate a strong showing of likelihood of success on the merits “does not . . . require that a stay of the nationwide aspect of the injun ction [] be denied.” That contention misses the mark , however, by conflating the merits of the government’s position with district court’s authority to issue a nationwide injunction. Whether Appellants have made a strong showing of likelihood of success on the merits entitling them to a stay of the preliminary injunction is a separate question from whether the scope of the injunction is appropriate. I n Azar , for example, we affirmed the preliminary injunction because, among other things, we found that the plaintiffs were likely to succeed on their claim that the rules were invalid. 911 F.3d at 575

– 81. Despite our conclusion that the rules were likely invalid, however, w e also determined that the injunction’s nationwide scope was not supported by the record. Id. at 584

– 85. Azar illustrates that, beyond examining the merits of a party’s arguments, a district court must separately analyze whether nationwide relief is “ nec essary to give prevailing parties the relief to which they are entitled” before issuing such an injunction. Id.
at 582 (quoting Bresgal , 843 F.2d at 1170

– 71)

.8 19

- 16487

Our approach

— granting a more limited injunction

— allows other litigants wishing to challenge the Rule to do so. Indeed, several already have. 6 Litigation over the Rule’s lawfulness will promote “the development of the law and the percolation of legal issues in the lower courts ” and allow the Supreme Court, if it chooses to address the Rule , to do s o “[with] the benefit of additional viewpoints from other lower federal courts and [with] a fully developed factual record .” Amanda Frost, In Defense of Nationwide Injunctions , 93 N.Y.U. L. REV. 1065,
1 107

– 08 (2018)

. 7 In sum, o ur decision to partially grant the stay simply upholds the law of our circuit by ensuring that injunctive relief is properly tailored to the alleged harm. 8 While this appeal proceeds, the district court retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the

6 As Appellants point out, hours before the district court ruled here, a District of Columbia district court, presented with the same Rule, denied materially identical relief to organizations similar to the Plaintiffs here

. See CAIR v. Trump , No. 1:19

- CV

- 02117

- TJK, 2019 WL 3436501 (D.D.C. July 24, 2019). 7 A ccord United States v. Mendoza , 464 U.S. 154, 160 (1984) (“[O]nly one final adjudication would deprive this Court of the benefit it receives from permitting several courts of appeals to explore a difficult question .”). 8 Contrary to the dissent’s position , the fact t hat injunctive relief may temporarily cause the Rule to be administered inconsistently in different locations is not a sound reason for imposing relief that is broader than necessary. As we explain above , our law requires that injunctive relief be narrowl y tailored to remedy the plaintiffs’ alleged harm, and it may only be broadened “if such breadth is necessary to give prevailing parties the relief to which they are entitled.” Bresgal , 843 F.2d at 1170

– 71 (emphasis added).9 19

- 16487

Ninth Circuit

. Cf. Trump , 897 F.3d at 1245 (“B ecause the record is insufficiently developed as to the question of the national scope of the injunction, we vacate the injunction to the extent that it applies outs ide California and remand to the district court for a more searching inquiry into whether this case justifies the breadth of the injunction imposed .”)

. The opening brief is due September 3 , 2019 ; the answering brief is due October 1 , 2019 ; and the optional reply is due within 21 days after service of the answering brief. This case will be placed on a December 2019 argument calendar.East Bay

Sanc t uary

C ov e nant v . Barr , No. 19-16487
TASHIM A, C irc uit Judge , c onc urring in pa rt a nd disse n ting in pa

rt:
I c onc ur in the portion of the orde r de ny ing the m otion for sta y pe nding

a ppe a l [Dkt. 3] insofa

r a s the injunc tion a

pplie s within the Ninth C i rc u it, but
disse nt from

the ba la nc e of the orde r. Ac ting a s a

m otions pa

ne l, a ll we ha ve be fore us is the gove rnm e nt’ s m otion
for a s ta y . I do not be lie ve t

ha t it is within a

m otions pa

ne l’ s provinc e to pa

rse the

re c o rd for e rror a t this sta ge , whic h is wha t the m a j ority doe s in c onc luding tha t

“ the na tionwide sc ope of the injunc tion is not supporte d by the re c ord a s it sta

nds.” (C ita tion om itte d .) B ut the m a jority the n goe s be y ond the re c o gniz e d a uthority of

a m otions pa

ne l by c onc luding tha

t “ [t] he distric t c ourt c le a rly e rre d by fa iling to

c onside r whe the r na tionwide re lie f is ne c e s sa ry to re m e dy

Pla intiffs’ a lle ge d
ha rm s,” a nd, on tha

t ba sis “ gra n t[s] the m otion for sta y pe nding a

ppe a l insofa

r a s the i njunc tion a

pplie s outside the Ninth C irc uit.” It the n, in the pe nultim a te
pa ra gra ph of the Orde r, in e ffe c t, re m a n ds the c a se to the distric t c ourt for a pa rtia l
do-ove r: W hile this a

ppe a l proc e e ds, the distric t c o urt re ta i ns jurisdic t ion to furthe r de ve lop the re c o rd in support of a pre lim i na

ry injunc tion e x te nding be y ond the Ninth C irc uit. 1 

# FIL ED

AUG 16 2019
M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALS

1 The m a

jority re lie s on C

ity & C ounty of San Franc isc o v . Trump , 897 F.3d 1225, 1245 (9th C ir. 2018), but the c ita t ion is c om

ple te l y ina

pposite . Tha

t (c ontinue d...)B ut va c a t ing a nd re m a nding it to the

distric t c ourt for a

m o re se a rc hing inquiry

into
whe the r this c a se justifie s the bre a dth of the injunc tion is indubita bly a n a c tion
within theprovinc e of a

m e rits pa ne l— not a m otions pa

ne l. 2
At the sa m e tim e , the orde r pla c e s the m e rits brie fing (of this a ppe a l) on a

n

e xpe dite d sc he d

ule for pla c e m e nt “ on a

De c e m be r 2019 a

rgum e nt c a le nda

r.” W ha t issue s a re the pa rtie s e xpe c te d

to brie f, a ssum i ng tha

t pa ra lle l proc e e dings in the
distric t c o urt a

re still ongoing? And if the distric t c ourt c om ple te s its se c o nd-look

re m a nd proc e e d ings within the ne xt fe w we e ks or m onths a n d issue s a m odifie d injunc tion, or issue s the sa m e na tionwide injunc tion, but one whic h is supporte d by supple m e nta l findings of fa c t, should the pa rtie s se e k to file supple m e nta l brie fs on
the n e wly -ra ise d a

nd ne wly -de c ide d issue s in this a ppe a l to the m e rits pa

ne l

a ssigne d to this a

ppe a l, or should a

ne w notic e of a

p pe a l be file d, giving rise to a

1 (...c ontinue d) wa s a n opinion by

a m e rits pa ne l c ha rge d with de c iding the a

p pe a l, not a

m otions pa ne l c ha rge d with de c iding a

sta y m otion, a nd the m e rits pa

ne l did e xa c tly

wha t it wa s c ha rge d with, i.e

. , it de c ide d the a ppe a l; it “ AFFIR M ED in pa rt;VAC ATED in pa ri; a n d R EM ANDED.” Id. W e , a s a m otions pa

ne l, ha ve no e q uiva le nt c ha

rge
.
2 B e c a

use the issue ha s be e n de c ide d, a p ply ing the c le a r e rror sta nda rd of re v ie w, the i njunc tion va c a te d a nd re m a nde d to the distric t c ourt, the m e rits pa ne l, pre sum a

bly ha s be e n de p rive d of de c iding this issue . The m a j ority ’ s a sse rtion, in footnote

2, tha t its a c tion “ doe s not bind the m e rits pa ne l,” is a n e m pty prom ise

. De c iding the c a s e on the m e rits, va c a t ing a nd re m a nding the injunc tion is not in a c c ord with the dic ta te s of W inte r v . N at. Re s. De f. C ounc il, Inc

. , 555 U.S. 7, 20 (2008). Pa ge -2-ne w a

ppe a l? The s e a re som e of the ne w a nd diffic ult que s tions ra i se d by the

m a jority ’ s split-de c ision.
W hile tim e doe s not pe rm it a full e xplora tion of the m e rits of the

“ na tionwide ” issue , som e proble m s pose d by the m a jority ’ s Ninth C irc uit-only injunc tion a

re a ppa re n t . Pe rha

ps, the distric t c ourt did not m a ke de ta i le d findings in support of a

na tionwide injunc tion be c a use the ne e d

for one in the c i rc u m sta

nc e s of this c a se is obvious. For sta rte rs, the joint inte rim

fina l rule , “ Asy l um

Eligibility

a nd Proc e dura l M odific a tions,” will a ffe c t a sy l um a pplic a tions a c ross the bre a dth
of the southe rn borde r. Should a sy lum la w be a d m iniste re d diffe re ntly

in Te xa s tha n in C a lifornia ? The s e issue s a nd proble m s illustra

te why tinke ring with the

m e rits on a

lim ite d sta

y m otion re c ord c a

n be risky . And it is why suc h issue s a

re

re se rve d for the m ore de libe ra te e xa m ina tion tha t a m e rits pa ne l c a n give the m
. The re is a lso a gla

ring inc onsiste nc y

— a c ontra dic tion— in the m a jority ’ s split-the -ba

by a pproa c h. If, a s the m a

jority a nd I a gre e , the gove rnm e nt’ s fa ilure to

m e e t the first Hilton v . Braunsk ill , 481 U.S. 770, 776 (1987), fa c tor — like l ihood of

suc c e ss on the m e rits, be c a use of its fa ilure to c om

ply with the APA—

m e a ns tha t its sta y m otion with re spe c t to the pre lim ina ry injunc tion’ s a

pplic a tion within the
Ninth C irc uit fa ils, it is pe rple xing to m e why

tha t fa ilure doe s not infe c t the
ba la nc e of its sta

y m otion a nd re quire tha

t a sta y of the na tionwide a spe c t of the

Pa ge -3-injunc tion a lso be de nie d. 3 The m a jority , in its rush to a

ddre ss the m e rits of the

na tionwide a spe c t of the injunc tion, sim ply e lide s this c ontra dic tion.
B e c a use I would not pe e l off pa rt of the pre lim ina

ry injunc tion a

nd re m a nd
tha t portion to the distric t c ourt, “ [b] e c a u se the re c ord is insuffic ie ntly de v e lope d

a s to the que stion of the na t iona l sc ope of the injunc tion” (quoting S an Franc isc o

v . Trump , 897 F.3d a

t 1245), while

re ta ining jurisdic tion ove r the re m a inde r, I disse nt from

the re m a nd 4 of the na tionwide sc ope of the pre lim ina ry injunc tion to
the d istric t c o urt. I would sim

ply de ny the sta y m otion.

3 The m a

jority ’ s a nswe r to this point is to sta t e tha t “ W he the r Appe l la n ts ha ve m a de a

strong showing of like lihood of suc c e ss on the m e rits e ntitling the m

to a sta y of the pre lim ina

ry injunc t ion is a

se p a ra te que stion from whe the r the sc ope of the injunc tion is a ppropria te .” B ut tha

t doe sn’ t a

nswe r (or e ve n try to a nswe r) m y que stion of why

the gove rnm e nt’ s fa ilure to m e e t the like lihood-of-suc c e ss fa c tor doe sn’ t doom its m otion to sta

y the na tionwide portion of the injunc tion, a s we ll a s the C a lifornia portion.

4 The Orde r doe s not use the word “ re m a nd,” but the m a jority doe s not qua rre l with the obvious infe re n c e from its sta te m e nt tha

t “ the distric t c o urt re ta ins jurisdic tion to furthe r de ve lop the re c ord in support of a pre lim i na

ry injunc tion e xte nding be y ond the Ninth C irc uit,” is, in substa nc e , a re m a n d. Pa ge -4-