Texas v. United States, Civil Action No. 6:21-cv-00003

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: DREW B. TIPTON UNITED STATES DISTRICT JUDGE
• Parties: STATE OF TEXAS, Plaintiff, v. The UNITED STATES OF AMERICA; DAVID PEKOSKE, Acting Secretary of The United States Department of Homeland Security, in his official capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; TROY MILLER, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in his official capacity; U.S. CUSTOMS AND BORDER PROTECTION; TAE JOHNSON, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; TRACY RENAUD, Senior Official Performing the Duties of the Director of the U.S. Citizenship And Immigration Services, in her official capacity; and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants.
• Docket Number: Civil Action No. 6:21-cv-00003
• Decision Date: 26 January 2021

STATE OF TEXAS, Plaintiff,
v.
The UNITED STATES OF AMERICA; DAVID PEKOSKE, Acting Secretary
of The United States Department of Homeland Security, in his official capacity;
UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
TROY MILLER, Senior Official Performing the Duties of the Commissioner of U.S. Customs
and Border Protection, in his official capacity; U.S. CUSTOMS AND BORDER PROTECTION;
TAE JOHNSON, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; TRACY RENAUD,
Senior Official Performing the Duties of the Director of the U.S. Citizenship
And Immigration Services, in her official capacity;
and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants.

Civil Action No. 6:21-cv-00003

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION

January 26, 2021

ORDER GRANTING PLAINTIFF'S EMERGENCY APPLICATION FOR A TEMPORARY RESTRAINING ORDER

The State of Texas requests a Temporary Restraining Order ("TRO") to enjoin Defendants from executing a 100-day pause on the removal of aliens already subject to a final Order of Removal.¹ The 100-day pause was set into motion through a recent Memorandum of the

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Department of Homeland Security on January 20, 2021 (the "January 20 Memorandum"). (Dkt. No. 2-2). In relevant part, the January 20 Memorandum directs "an immediate pause on removals of any noncitizen with a final order of removal . . . for 100 days."² (Dkt. No. 2-2 at 4-5). After reviewing Texas's Emergency Application, the arguments of Texas's and Defendants' counsel on January 22, 2021, the Defendants' Response filed on January 24, 2021, the brief of Amicus, the record, and the applicable law, the Court finds that Texas has satisfied the requirements for a TRO. Accordingly, Texas's Emergency Application for a TRO is GRANTED. In so doing, the Court makes clear that this Order is not based on the "Agreement Between Department of Homeland Security and the State of Texas" attached as Exhibit "A" to Plaintiff's Complaint. The issues implicated by that Agreement are of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits. Rather, the Court finds that a TRO maintaining the status quo as it existed prior to the implementation of the January 20 Memorandum's 100-day pause is appropriate under the Administrative Procedures Act (the "APA"). Accordingly, and pursuant to Rule 65 of the Federal Rules of Civil Procedure, Defendants are enjoined from executing the 100-day pause on removals for 14 days for the reasons and in the manner described below.

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I. LEGAL STANDARD FOR A TEMPORARY RESTRAINING ORDER

The standard for issuing a TRO is the same as the standard for issuing a preliminary injunction. See Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). Injunctive relief is "an extraordinary remedy" that may be awarded only upon "a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008). "[S]uch extraordinary relief would issue only where (1) there is a substantial likelihood that the movant will prevail on the merits; (2) there is a substantial threat that irreparable harm will result if the injunction is not granted; (3) the threatened injury outweighs the threatened harm to the defendant; and (4) the granting of the preliminary injunction will not disserve the public interest." Clark, 812 F.2d at 993. "The party seeking such relief must satisfy a cumulative burden of proving each of the four elements enumerated before a temporary restraining order or preliminary injunction can be granted." Id. But "none of the four prerequisites has a fixed quantitative value." State of Tex. v. Seatrain Int'l, S. A., 518 F.2d 175, 180 (5th Cir. 1975). "Rather, a sliding scale is utilized, which takes into account the intensity of each in a given calculus." Id. (citing Siff v. State Democratic Exec. Comm., 500 F.2d 1307 (5th Cir. 1974)).

II. APPLICATION

In its Emergency Application, Texas argues it will likely succeed on the merits of its challenges to the January 20 Memorandum, there is a significant risk it would suffer imminent and irreparable harm if a TRO is not granted, and a TRO would not harm Defendants or the public. (Dkt. No. 2 at 7-19). The Court agrees.

Before addressing those elements, the Court pauses to note a temporary restraining order is meant only to "preserve, for a very brief time, the status quo, so as to avoid irreparable injury pending a hearing on the issuance of a preliminary injunction." Norman Bridge Drug Co. v. Banner, 529 F.2d 822, 829 (5th Cir. 1976). Importantly, "[i]f the currently existing status quo

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itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury, . . . by, [inter alia,] returning to the last uncontested status quo between the parties." Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974) (emphasis, ellipsis, and alteration added) (citation omitted); see also United States v. FDIC, 881 F.2d 207, 210 (5th Cir. 1989) ("[T]he district court has the equitable power to return the parties to their last uncontested status."). The Court finds that the "last uncontested status quo" here is the status of Defendants' removal policy prior to issuance of the January 20 Memorandum's 100-day pause on removals. See Callaway, 489 F.2d at 576.

A. SUBSTANTIAL LIKELIHOOD THAT TEXAS WILL PREVAIL ON THE MERITS

A TRO is appropriate only where the plaintiff shows that there is a substantial likelihood it will prevail on the merits. Clark, 812 F.2d at 993. Indeed, the Fifth Circuit has cautioned that "it is inequitable to temporarily enjoin a party from undertaking activity which he has a clear right to pursue." Seatrain, 518 F.2d at 180.

Texas has asserted six claims against Defendants in its Complaint. (Dkt. No. 1 at ¶¶ 38-72). At this early stage, the Court finds Texas has a substantial likelihood of success on at least two: (Count II) Texas's claim that the January 20 Memorandum's 100-day pause should be set aside pursuant to Section 706 of the APA because it violates 8 U.S.C. § 1231(a)(1)(A),³ and (Count IV) Texas's claim that Defendants arbitrarily and capriciously departed from its previous policy without sufficient explanation. To succeed on its Application for a TRO, Texas need only demonstrate a likelihood of success on "at least one" claim. See Texas v. United States, 86 F. Supp. 3d 591, 672 (S.D. Tex.), aff'd, 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015).

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The Court defers ruling on the remaining Counts, which should not be construed as an indication of the Court's view of their merits.

Before addressing Counts II and IV, the Court must briefly address an issue concerning its jurisdiction under Article III. Defendants contend Texas cannot establish standing for these claims since Texas has asserted only "fiscal harm." (Dkt. No. 8 at 17-18). The Court disagrees. The panel in Texas v. United States, addressing similar claims, held that the plaintiff-states had pleaded a sufficiently concrete injury by demonstrating the harm to "the states' fisc," such as "millions of dollars of losses in Texas alone." 809 F.3d 134, 150-61, 162-63 (5th Cir. 2015), aff'd by an equally divided Court, 136 S.Ct. 2271 (2016) (mem.). Thus, the Fifth Circuit distinguished its holding from its previous ruling in Crane v. Johnson, where the plaintiff-state had "waived" the harm-to-public-fisc theory the plaintiff-states advanced in Texas. 809 F.3d at 150 n.24. Here, Texas asserts and has provided evidence that the 100-day pause will result in millions of dollars of damage to its public fisc by causing it to increase its spending on public services to illegal aliens. (Dkt. No. 2 at 18; Dkt. Nos. 2-4, 2-5). The Court is therefore satisfied for now that Texas has established an injury-in-fact. The Court also finds, for now, that Texas's alleged injury is fairly traceable and redressable. See Bennett v. Spear, 520 U.S. 154, 167-71, 117 S.Ct. 1154, 1163-65, 137 L.Ed.2d 281 (1997).

1. Count II: Failure to Remove Illegal Aliens in Violation of 8 U.S.C. § 1231

Texas claims that the 100-day pause violates 8 U.S.C. § 1231(a)(1)(A). (Dkt. No. 1 at ¶¶ 43-49). That section provides, "when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days." 8 U.S.C. § 1231(a)(1)(A) (emphasis added). Texas contends that Defendants' alleged violation of § 1231(a)(1)(A) gives rise to a claim under the APA. (Dkt. No. 1 at ¶ 45). In relevant part, § 706 of the APA provides

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that "a reviewing court shall hold unlawful and set aside agency action . . . found to be (A) . . . not in accordance with law" and "(C) in excess of statutory . . . authority." 5 U.S.C. § 706(2)(A), (C). Texas argues the 100-day pause on removals is not in accordance with law and in excess of the government's statutory authority under § 1231(a)(1)(A). (Dkt. No. 1 at ¶ 45). Further, Texas avers that Defendants' alleged violation of § 1231(a)(1)(A) causes Texas irreparable harm. (Dkt. No. 1 at ¶ 47).

Defendants respond that the 100-day pause does not violate § 1231(a)(1)(A) because that provision "does not mandate removal within the 90-day removal period." (Dkt. No. 8 at 15). Defendants also assert that Texas's claims are not subject to judicial review, that the January 20 Memorandum is not a "final agency action" as provided by 5 U.S.C. § 704, and Texas's claims are barred by 8 U.S.C. § 1231(h). (Id. at 13-16).

The Court finds that, by ordering a 100-day pause on all removals of aliens already subject to a final order of removal, it appears that the January 20 Memorandum is clearly not in accordance with, or is in excess of, the authority accorded to the Attorney General pursuant to 8 U.S.C. § 1231(a)(1)(A). In other words, the Court...