UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs, v. Civil Action No. 17-1907 (JDB) DONALD J. TRUMP, et al., Defendants.

TRUSTEES OF PRINCETON UNIVERSITY, et al., Plaintiffs, v. Civil Action No. 17-2325 (JDB) UNITED STATES OF AMERICA, et al., Defendants.

MEMORANDUM OPINION

Before the Court is [82] the government’s motion for a stay pending appeal of [69] the

April 24, 2018 order vacating the rescission of the Deferred Action for Childhood Arrivals

(“DACA”) program and [77] the August 3, 2018 order denying reconsideration of the April 24,

2018 order. Also before the Court is [81] the government’s unopposed motion for clarification

that the August 3, 2018 order was a final, appealable judgment.

The government seeks a stay of the Court’s orders in their entirety or, in the alternative, at

least insofar as they require the Department of Homeland Security (“DHS”) to begin accepting

applications for initial grants of DACA benefits and for advance parole under the DACA program.

See Defs.’ Mot. for a Stay Pending Appeal (“Gov’t’s Mot.”) [ECF No. 82] at 1–2. Plaintiffs oppose the government’s motion in part, urging the Court not to stay its orders in their entirety,

but agreeing that a stay as to initial DACA applications would be proper. See Pls.’ Partial Opp’n

to Defs.’ Mot. for Stay Pending Appeal (“Pls.’ Opp’n”) [ECF No. 83] at 1 (recognizing that “an

imperfect ‘status quo’—no new applicants, but renewals continue—has developed”). For the

reasons that follow, the government’s motion to clarify will be granted, and its motion for a stay

pending appeal will be granted in part. The Court will stay its order as to new DACA applications

and applications for advance parole, but not as to renewal applications.

The Court is mindful that continuing the stay in this case will temporarily deprive certain

DACA-eligible individuals, and plaintiffs in these cases, of relief to which the Court has concluded

they are legally entitled. But the Court is also aware of the significant confusion and uncertainty

that currently surrounds the status of the DACA program, which is now the subject of litigation in

multiple federal district courts and courts of appeals. Because that confusion would only be

magnified if the Court’s order regarding initial DACA applications were to take effect now and

later be reversed on appeal, the Court will grant a limited stay of its order and preserve the status

quo pending appeal, as plaintiffs themselves suggest.

I. MOTION FOR STAY PENDING APPEAL

Under Federal Rule of Civil Procedure 62(c), district courts generally have the authority to

stay their orders pending appeal. Hilton v. Braunskill,

(1987). In determining

whether to grant such a stay, courts consider four factors: “(1) whether the stay applicant has made

a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other

2 parties interested in the proceeding; and (4) where the public interest lies.” Id.; see also Wash.

Metro. Area Transit Comm’n v. Holiday Tours, Inc.,

, 842–43 (D.C. Cir. 1977).

Traditionally, courts in this Circuit have considered these factors on a “‘sliding scale,’

whereby ‘a strong showing on one factor could make up for a weaker showing on another.’” Cigar

Ass’n of Am. v. FDA, Civil Action No. 16-1460,

, at *3 (D.D.C. July 5, 2018)

(quoting Sherley v. Sebelius,

(D.C. Cir. 2011)). Although recent decisions of

the Supreme Court have called this approach into question, 1 “the district judges in this Circuit

continue to adhere to binding precedent and apply the sliding scale approach to determine whether

a movant is entitled to an injunction pending resolution of its appeal,”

(collecting cases), and

plaintiffs do not dispute the propriety of that approach here, see Pls.’ Opp’n at 2 n.1. Thus, if “the

three other factors strongly favor issuing” a stay, then the government “need only raise a ‘serious

legal question’ on the merits” for that stay to issue. Cigar Ass’n of Am.,

, at *3

(quoting Aamer, 742 F.3d at 1043); see also Holiday Tours,

(“[A] court, when

confronted with a case in which the other three factors strongly favor interim relief[,] may exercise

its discretion to grant a stay if the movant has made a substantial case on the merits.”).

As to the first factor, the Court finds that the government’s appeal raises “serious legal

question[s].” Aamer, 742 F.3d at 1043. Those questions include whether DHS’s decision to

rescind DACA was subject to judicial review under the Administrative Procedure Act (“APA”),

see

(a)(2) (exempting from APA review “agency action [that] is committed to

agency discretion by law”), and, if so, whether that decision was arbitrary and capricious, see 5

1 See

(noting that, following the Supreme Court’s decision in Winter v. Natural Resources Defense Council,

(2008), a case that dealt with preliminary injunctive relief, “it remains an open question whether the ‘likelihood of success’ factor is an ‘independent, free-standing requirement’” (quoting Aamer v. Obama,

(D.C. Cir. 2014)).

(2)(A). Of course, this Court has already answered both questions in the affirmative:

as the Court has explained at length elsewhere, DACA’s rescission was both reviewable and

unlawful because it was based chiefly on a “virtually unexplained” conclusion that DACA was

unlawful. NAACP v. Trump,

(D.D.C. 2018). Nevertheless, the

government has assembled a “substantial case on the merits,” Holiday Tours,

, and

the fact that the Court has thus far been unpersuaded by that case does not preclude the issuance

of a stay, see

(“The court . . . may grant a stay even though its own approach may be contrary

to [the] movant’s view of the merits.”); see also Jewish War Veterans of the U.S., Inc. v. Gates,

(D.D.C. 2007) (granting a stay pending appeal where the nonmovant argued

that a D.C. Circuit decision was “directly on point and controls the outcome of this case”). 2

The remaining factors lend sufficient support to plaintiffs’ proposal for a limited stay

pending appeal (i.e., as to initial DACA applications and applications for advance parole only) to

render that stay appropriate in light of the government’s “substantial” legal case. See Cigar Ass’n

of Am.,

, at *4. But they do not support the government’s request for a stay of

the Court’s order in its entirety.

2 Many of the defects in the government’s merits case are apparent even in its motion for a stay pending appeal. For example, the government reiterates its illogical reading of Crowley Caribbean Transport, Inc. v. Peña,

(D.C. Cir. 1994), whereby a court could reject “an enforcement decision’s supporting rationale” and yet be powerless to remedy the unlawful “enforcement decision itself,” Gov’t’s Mot. at 6. Similarly, the government relies on United Automobile Workers v. Brock, a decision that expressly acknowledged that “review might be available even for a nonenforcement decision” where, as here, “that decision is predicated solely on the agency’s interpretation of a statute” or other law.

, 245 n.10 (D.C. Cir. 1986) (emphasis added); see id. at 245 n.9 (declining to review the decision at issue in that case because there, unlike here, the agency’s “decision not to take enforcement action . . . was predicated on a combination of both statutory and discretionary grounds”). The government also continues to advance the flawed premise that Texas v. United States,

(5th Cir. 2015), supports DACA’s rescission, this time “direct[ing]” the Court to the Fifth Circuit’s opinion as though it were somehow that court’s responsibility—and not DHS’s—to explain DHS’s decision to rescind the DACA program. Gov’t’s Mot. at 7. 4 The second factor—the risk of irreparable injury to DHS—favors a stay, but only as to

initial DACA applications and applications for DACA-based advance parole. The Court is

unmoved by the government’s assertion of injury resulting from its being “enjoined from

implementing an act of Congress.” Gov’t’s Mot. at 8. As the Court has already explained, DHS

has been implementing that act of Congress (the Immigration and Nationality Act) under an ill-

considered (and hence possibly incorrect) understanding of its enforcement authority. See

NAACP,

. Unlike an injunction prohibiting the exercise of statutory

authority altogether, see New Motor Veh. Bd. of Cal. v. Orrin W. Fox Co.,

(1977) (Rehnquist, J., in chambers) (concluding “that any time a State is enjoined by a court from

effectuating statutes enacted by representatives of its people, it suffers a form of irreparable

injury”), this Court’s order simply corrects the improper exercise of that authority. To the extent

that such an injury is cognizable at all, it is insufficient to justify staying the Court’s order here.

The Court accepts, however, that the additional staff and other resources required for DHS

to process initial DACA applications would constitute a cognizable injury. DHS estimates that

full implementation of the Court’s order would lead to the filing of over 100,000 initial DACA

applications and 30,000 requests for advance parole, which would in turn require the hiring of 72

temporary employees and the reassignment or hiring of 60 full-time employees. See Gov’t’s Mot.

at 9–10. But these burdens apply only as to initial DACA applications, since DHS has been

accepting renewal applications since mid-2012, with the exception of a brief period in late 2017

5 and early 2018. See NAACP, 298 F. Supp. 3d at 218–20. 3 The second factor therefore favors

plaintiffs’ proposed limited stay, not the government’s full stay.

The third factor, the risk of injury to plaintiffs, again favors continuing the stay as to initial

DACA applications and applications for advance parole, but not as to renewal applications.

Although the government maintains that the termination of existing DACA benefits—which would

immediately end DACA beneficiaries’ work authorizations and could lead to their removal from

the United States—is not an irreparable harm, this untenable proposition has been rejected by this

Court and by several others. See NAACP,

(noting in the stay-of-vacatur

context that “each day that the agency delays is a day that aliens who might otherwise be eligible

for initial grants of DACA benefits are exposed to removal because of an unlawful agency action”);

see also Regents of the U. of Cal. v. DHS,

, 1046–47 (N.D. Cal. 2018);

Batalla Vidal v. Nielsen,

, 434–35 (E.D.N.Y. 2018). And although there are

currently two preliminary injunctions in place requiring DHS to continue accepting renewal

applications, as the Court has previously noted, “those injunctions are both on expedited appeals

and hence could be reversed in the not-too-distant future.” NAACP,

. This

Court’s order—which, unlike the preliminary injunctions entered in parallel litigation, is a final

judgment—will therefore prevent irreparable harm to plaintiffs and all current DACA beneficiaries

should those other injunctions be reversed. Hence, it will not be stayed as to renewal applications.

By contrast, the Court agrees with the district court in Regents that “while plaintiffs have

demonstrated that DACA recipients . . . are likely to suffer substantial, irreparable harm as a result

3 When DHS rescinded DACA in September 2017, it immediately stopped accepting new DACA applications but continued to accept certain renewal applications that were filed within the next thirty days.

. Then, in January 2018, a district court in California ordered DHS to resume accepting renewal applications.

. 6 of the rescission, they have not made a comparable showing as to individuals who have never

applied for or obtained DACA” benefits. 279 F. Supp. 3d at 1049; accord Batalla Vidal, 279 F.

Supp. 3d at 437 (“As in Regents, . . . the court finds that the irreparable harms identified by

Plaintiffs largely result from Defendants’ expected failure to renew existing grants of deferred

action and especially work authorization, not from Defendants’ refusal to adjudicate new initial

DACA applications.”). The same is true of advance parole. See Regents, 279 F. Supp. 3d at 1049

(concluding that “inability to travel abroad . . . do[es] not amount to [a] hardship[] justifying a

provisional injunction requiring DHS to resume accepting applications for advance parole”);

Batalla Vidal, 279 F. Supp. 3d at 437 (citing Regents, 279 F. Supp. 3d at 1048–49). Thus, like the

second factor, the third factor supports a stay as to initial DACA applications and applications for

advance parole, but not as to renewal applications.

The fourth and final factor—the public interest—also favors this limited stay. The Court

has already recognized the disruption that would ensue if DHS were to begin accepting initial

DACA applications pursuant to the Court’s order but that order were later reversed on appeal. See

NAACP, 298 F. Supp. 3d at 244–45 (citing Allied–Signal, Inc. v. U.S. Nuclear Reg. Comm’n,

, 150–51 (D.C. Cir. 1993)). Just as this potential for disruption previously counseled in

favor of a 90-day stay of the Court’s order of vacatur, see id., it now suggests that the public interest

would be served by a stay pending appeal as to initial DACA applications. Like the second and

third factors, however, this fourth factor does not support a stay as to renewal applications, since

DHS is already accepting those applications.

In sum, because the government’s appeal raises “serious legal questions,” and because the

remaining factors—harm to DHS, harm to DACA beneficiaries, and the public interest—favor a

7 stay of the Court’s order of vacatur as to initial DACA applications and applications for DACA-

based advance parole, the Court will grant the government’s request for a stay as to those

applications. But because the three equitable factors do not favor a stay as to applications for the

renewal of DACA benefits, pursuant to the “sliding scale” approach employed in this Circuit,

Cigar Ass’n of Am.,

, at *3, the Court will not stay its order as to renewal

applications. And the Court notes again that plaintiffs agree to this limited stay of the Court’s

order pending appeal. See Pls.’ Opp’n at 15–16.

II. MOTION FOR CLARIFICATION

Finally, the government has moved for clarification that the Court’s August 3, 2018 order

was a final, appealable judgment. See Defs.’ Mot. for Clarification Regarding Entry of Final

Judgment (“Gov’t’s Mot. for Clarification”) [ECF No. 81] at 2–3. The government also seeks an

order dismissing plaintiffs’ constitutional challenges to DACA’s rescission as moot. See id. at 3.

Plaintiffs oppose the dismissal of their constitutional claims but agree that the Court’s August 3,

2018 order is final and appealable. See id. at 3 n.2.

Initially, the Court deferred ruling on plaintiffs’ constitutional challenges to DACA’s

rescission pending DHS’s response to the April 24, 2018 order vacating DACA’s rescission on

administrative grounds. See NAACP,

(explaining that DHS “could, on

remand, alter DACA’s rescission in ways that might affect the merits of plaintiffs’ constitutional

claims”). Because the Court has since declined to reconsider its April 24, 2018 order, a decision

on plaintiffs’ constitutional challenges to DACA’s rescission is unnecessary. See Alabama Power

Co. v. EPA,

, 456 (D.C. Cir. 1994) (declining to address a claim rendered moot by the

court’s vacatur of the agency’s action). Moreover, the Court has already entered final judgment

8 on plaintiffs’ remaining administrative and constitutional claims. See NAACP,

. Thus, the Court’s August 3, 2018 order denying reconsideration “adjudicat[ed] all the

claims and all the parties’ rights and liabilities” in this action and was therefore a final, appealable

order. Fed. R. Civ. P. 54(b).

* * *

For the foregoing reasons, the government’s motion for a stay pending appeal will be

granted in part, and the Court will stay its order of vacatur as it applies to initial DACA applications

and applications for DACA-based advance parole. The government’s motion to clarify will also

be granted. A separate order has been issued on this date.

/s/ JOHN D. BATES United States District Judge Dated: August 17, 2018

9