Texas v. Biden, 21-10806

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: ANDREW S. OLDHAM, CIRCUIT JUDGE
• Parties: State of Texas; State of Missouri, Plaintiffs-Appellees, v. Joseph R. Biden, Jr., in his official capacity as President of the United States of America; United States of America; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; United States Department of Homeland Security; Troy Miller, Acting Commissioner, U.S. Customs and Border Protection; United States Customs and Border Protection; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement; United States Immigration and Customs Enforcement; Tracy Renaud, in her official capacity as Acting Director of the United States Citizenship and Immigration Services; United States Citizenship and Immigration Services, Defendants-Appellants.
• Docket Number: 21-10806
• Decision Date: 13 December 2021

State of Texas; State of Missouri, Plaintiffs-Appellees,
v.
Joseph R. Biden, Jr., in his official capacity as President of the United States of America; United States of America; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; United States Department of Homeland Security; Troy Miller, Acting Commissioner, U.S. Customs and Border Protection; United States Customs and Border Protection; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement; United States Immigration and Customs Enforcement; Tracy Renaud, in her official capacity as Acting Director of the United States Citizenship and Immigration Services; United States Citizenship and Immigration Services, Defendants-Appellants.

No. 21-10806

United States Court of Appeals, Fifth Circuit

December 13, 2021

Appeal from the United States District Court for the Northern District of Texas USDC No. 2:21-cv-67

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Before Barksdale, Engelhardt, and Oldham, Circuit Judges.

ANDREW S. OLDHAM, CIRCUIT JUDGE

This case concerns the Migrant Protection Protocols ("MPP" or the "Protocols"), which the Secretary of the Department of Homeland Security ("DHS") created on December 20, 2018. On January 20, 2021, DHS suspended the MPP program (the "Suspension Decision"). On June 1, 2021, DHS permanently terminated MPP (the "Termination Decision"). DHS explained these two decisions in a series of increasingly lengthy memoranda; the first contained just a few sentences, while the last spanned 39 single-spaced pages. Texas and Missouri (the "States") challenged both the Suspension Decision and the Termination Decision in federal court.

After a full bench trial, the district court determined that the Termination Decision violated both the Administrative Procedure Act (the "APA") and an immigration statute, 8 U.S.C. § 1225. The district court therefore vacated the Termination Decision and ordered DHS to implement the Protocols in good faith or to take a new agency action that complied with the law.

DHS chose not to take a new agency action. It instead chose to notice an appeal and defend its Termination Decision in our court. DHS also asked us to stay the district court's injunction while the appeal was pending. We denied that motion, and the Supreme Court affirmed our denial. The Government thereafter vigorously defended the Termination Decision before our court.

Then, on the Friday before oral argument-October 29, 2021-DHS issued two more memoranda (the "October 29 Memoranda" or "Memoranda") to explain the Termination Decision. These much longer documents purported to "re-terminate" MPP-or at the very least, promised to do so after the lifting of the district court's injunction. A few hours later, the Government informed our court that, in its view, the October 29 Memoranda had mooted this case. Never mind that a case is moot only

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when the controversy between the parties is dead and gone, and the controversy between these parties is very much not dead and not gone. Never mind that the new memoranda simply reaffirmed the Termination Decision that the States had been challenging all along. And never mind that the Government's theory of mootness would allow an administrative agency to permanently avoid judicial review by issuing an endless litany of new memos to "moot" every adverse judicial ruling. The Government boldly proclaimed that DHS's unilateral decision to issue new memoranda required us to give DHS the same relief it had previously hoped to win on appeal-namely, vacatur of the district court's injunction and termination of MPP.

DHS's proposed approach is as unlawful as it is illogical. Under Supreme Court and Fifth Circuit precedent, this case is nowhere near moot. And in any event, the vacatur DHS requests is an equitable remedy, which is unavailable to parties with unclean hands. The Government's litigation tactics disqualify it from such equitable relief.

The Government also raises a slew of reviewability arguments, contending that no court may ever review the Termination Decision. DHS claims the power to implement a massive policy reversal-affecting billions of dollars and countless people-simply by typing out a new Word document and posting it on the internet. No input from Congress, no ordinary rulemaking procedures, and no judicial review. We address and reject each of the Government's reviewability arguments and determine that DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum.

On the merits, the Termination Decision was arbitrary and capricious under the APA. That Act, among other things, requires courts to set aside agency actions that overlook relevant issues or inadequately explain their conclusions. We anchor our analysis to a recent Supreme Court decision that

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applied this doctrine in the immigration context. Under that precedent, this is not a close case.

The Termination Decision is independently unlawful because it violates 8 U.S.C. § 1225. That statute (among other things) requires DHS to detain aliens, pending removal proceedings, who unlawfully enter the United States and seek permission to stay. It's true that DHS lacks the capacity to detain all such aliens. Congress, however, created a statutory safety valve to address that problem. Another part of § 1225 allows DHS to return aliens to contiguous territories, like Mexico, while removal proceedings are pending. That safety valve was the statutory basis for the Protocols. DHS's Termination Decision was a refusal to use the statute's safety valve. That refusal, combined with DHS's lack of detention capacity, means DHS is not detaining the aliens that Congress required it to detain.

The Government insists that a third provision (in § 1182) lets DHS parole aliens into the United States on a case-by-case basis. The idea seems to be that DHS can simply parole every alien it lacks the capacity to detain. But that solves nothing: The statute allows only case-by-case parole. Deciding to parole aliens en masse is the opposite of case-by-case decisionmaking.

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This opinion has five parts. Part I.A, infra pages 6-10, addresses this case's factual background. Part I.B, infra pages 10-13, summarizes its statutory background.

Part II addresses our jurisdiction. We start with final agency action. Part II.A, infra pages 13-29, pinpoints the final agency action under review. The final agency action is DHS's June 1 Termination Decision. We have jurisdiction to review that Termination Decision, rather than one or the other of DHS's ever-growing collection of MPP memos.

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Then we turn to mootness in Part II.B, infra pages 29-46. The October 29 Memoranda have no present legal effect, so they can't moot the case. See Part II.B.1, infra pages 30-32. Independently, the Government has not shown they do anything to cure the Termination Decision's unlawfulness, so again, they can't moot the case. See Part II.B.2, infra pages 32-39. And they constitute (at most) voluntary cessation, so yet again, they can't moot the case. See Part II.B.3, infra pages 39-45. And ordinary appellate principles bar our review of the merits of the October 29 Memoranda in any event. See Part II.B.4, infra pages 45-46.

Part II.C, infra pages 46-63, addresses the States' standing. The district court based its standing analysis on factual findings that were not clearly erroneous. See Part II.C.1, infra pages 46-52. Given those findings and the States' entitlement to special solicitude in the analysis, we hold the States have standing. See Part II.C.2, infra pages 52-63.

Part III then addresses and rejects a host of non-jurisdictional objections to the reviewability of the Termination Decision. Part III.A, infra pages 63-65, holds the States have a cause of action. Part III.B, infra pages 65-88, holds the APA does not preclude our review of the Termination Decision. Part III.B.1, infra pages 66-68, holds the immigration statutes don't insulate the Termination Decision from review. Part III.B.2, infra pages 68-88, holds that Heckler v. Chaney, 470 U.S. 821 (1985), does not bar review either. That's largely because Heckler, far from forbidding judicial review of agency rules, powerfully supports it. Background principles of English and American law, the Supreme Court's precedents, and our own court's precedents all point toward that same conclusion. See Part III.B.2.a, infra pages 69-85. Even if Heckler applied to some rules, it wouldn't apply to the Termination Decision. See Part III.B.2.b, infra pages 85-87. And even if Heckler were presumed to apply, that presumption would be rebutted by the clear statutory text at play in this case. See Part III.B.2.c, infra pages 87-88.

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Part IV, infra pages 88-106, evaluates the merits. The Termination Decision was arbitrary and capricious under the APA for all sorts of reasons, and the Government's arguments to the contrary are meritless. See Part IV.A, infra pages 88-97. And the Decision was contrary to 8 U.S.C. § 1225. See Part IV.B, infra pages 98-106.

Part V, infra pages 106-17, considers the remedy. Because the case is not moot, we will deny the Government's motion to vacate the district court's judgment. Even if the case were moot, the Government's litigation tactics would require the same result. See Part V.A, infra pages 106-09. And the district court didn't abuse its discretion by vacating the Termination Decision. See Part V.B, infra pages 109-11. Nor did it abuse its discretion by imposing a permanent injunction. See Part V.C, infra pages 111-17.

In sum, we hold that the Termination Decision violates both the Administrative Procedure Act and the immigration statutes. The Government's motion to vacate the judgment and remand for further proceedings is DENIED. The district court's judgment is AFFIRMED.

I.

A.

This story began on December 20, 2018. On that day, DHS implemented the MPP program in response to a surge of unlawful...