Vidal v. Nielsen

• Decision Date: 08 January 2018
• Docket Number: 16-CV-4756 (NGG) (JO),17-CV-5228 (NGG) (JO)
• Parties: MARTIN JONATHAN BATALLA VIDAL et al., Plaintiffs, v. KIRSTJEN M. NIELSEN, Secretary, Department of Homeland Security, et al., Defendants. STATE OF NEW YORK et al., Plaintiffs, v. DONALD TRUMP, President of the United States, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

MARTIN JONATHAN BATALLA VIDAL et al., Plaintiffs, v. KIRSTJEN M. NIELSEN, Secretary, Department of Homeland Security, et al., Defendants.

STATE OF NEW YORK et al., Plaintiffs, v. DONALD TRUMP, President of the United States, et al., Defendants.

16-CV-4756 (NGG) (JO)

17-CV-5228 (NGG) (JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

January 8, 2018

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

On November 9, 2017, the court granted in part and denied in part Defendants' motion to dismiss the above-captioned challenges to the decision to rescind the Deferred Action for Childhood Arrivals ("DACA") program. (Nov. 9, 2017, Mem. & Order ("Nov. 9 M&O") (Dkt. 104¹) at 2, 19-48.) The court agreed with Defendants that Plaintiffs lacked Article III standing to bring certain claims asserted in their then-operative complaints. (Id. at 32-46.) It rejected, however, Defendants' arguments that the decision to rescind the DACA program was"committed to agency discretion by law," and therefore immune from judicial review under the Administrative Procedure Act ("APA"), see 5 U.S.C. § 701(a)(2) (Nov. 9 M&O at 20-28), or that the Immigration and Nationality Act ("INA") divests courts of jurisdiction to hear challenges to that decision, see 8 U.S.C. § 1252(g) (Nov. 9 M&O at 28-32). Defendants now move for the court to certify that order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (Defs. Mot. for Certification for Interlocutory Appeal ("Defs. Mot.") (Dkt. 219); Defs. Mem. in Supp. of Mot. for Certification for Interlocutory Appeal ("Defs. Mem.") (Dkt. 219-1).) The court concludes that its November 9 M&O satisfies the requirements for Section 1292(b) certification, and it therefore GRANTS Defendants' motion.

I. LEGAL STANDARD

Federal courts of appeals typically hear appeals only from "final decisions of . . . district courts." 28 U.S.C. § 1291. A district court may, however, certify a non-final order in a civil case for interlocutory appeal, provided that "such order involves a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the termination of the litigation." Id. § 1292(b). "When a ruling satisfies [the Section 1292(b)] criteria and 'involves a new legal question or is of special consequence,' then the district court 'should not hesitate to certify an interlocutory appeal.'" Balintulo v. Daimler AG, 727 F.3d 174, 186 (2d Cir. 2013) (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111 (2009)). "Whether an interlocutory appeal is warranted lies squarely within the discretion of the district court." Garber v. Office of the Comm'r of Baseball, 120 F. Supp. 3d 334, 337 (S.D.N.Y. 2014). The court need only identify one controlling question of law that satisfies Section 1292(b) to certify the entire order for appeal. City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 391-92 (2d Cir. 2008).

II. DISCUSSION

Defendants contend that the November 9 M&O presents two questions of law that satisfy the requirements of Section 1292(b): "(1) whether or not the rescission of DACA was a decision 'committed to agency discretion by law;' and (2) whether or not the INA deprives federal district courts of jurisdiction over challenges to the Rescission Policy." (Def. Mem. at 4.) The court agrees that the first of these questions meets the requirements of Section 1292(b).²

A. Controlling Question of Law

First, the issue of whether the decision to rescind the DACA program was "committed to agency discretion" presents a "controlling question of law." That question is "controlling" because reversal of this court's November 9 M&O on this point would require the dismissal of, at the least, Plaintiffs' substantive APA challenges to the rescission of the DACA program. That would plainly "terminate the action" as to these claims, Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 921 F.2d 21, 24 (2d Cir. 1990), and "significantly affect the conduct of the action" going forward, SEC v. CreditBancorp, Ltd., 103 F. Supp. 2d 223, 227 (S.D.N.Y. 2000).³ Furthermore, this question is one "of law" for purposes of Section 1292(b), as it presents an essentially legal issue as to whether the rescission of guidelines for immigration authorities' exercise of prosecutorial discretion is itself an exercise of prosecutorial discretion that is presumptively unreviewable under 5 U.S.C. § 701(a)(2) and Heckler v. Chaney, 470 U.S. 821 (1985).

B. Substantial Ground for Difference of Opinion

Second, there are substantial grounds for difference of opinion on this question. In this circuit, an order may furnish "substantial ground for difference of opinion" when it presents issues that are "difficult and of first impression." Klinghoffer, 921 F.2d at 25; Hart v. Rick's Cabaret Int'l, Inc., 73 F. Supp. 3d 382, 393 (S.D.N.Y. 2014) ("A substantial ground for difference of opinion exists when (1) there is conflicting authority on the issue, or (2) the issue is particularly difficult and of first impression for the Second Circuit." (quoting In re Facebook, Inc. IPO Secs. & Deriv. Litig., 986 F. Supp. 2d 524, 539 (S.D.N.Y. 2014))). In the court's view, the application of Section 701(a)(2) of the APA to the rescission of the DACA program presents such a difficult issue of first impression. In its November 9 M&O, the court concluded that Defendants' rescission of the DACA program did not fall into Section 701(a)(2)'s "very narrow exception" to the APA's presumption of reviewability of agency action—an exception that applies only "in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply." Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410(1971) (internal quotation marks and citation omitted). (Nov. 9 M&O at 20-21.) This was because there was indeed "law to apply" to Defendants' decision and because the rescission of the DACA program did not fall within a class of decisions, such as agency decisions not to take enforcement action, that are presumptively immune from APA review. (Id. at 21-26.)

Although the court has no misgivings about these conclusions, these issues are admittedly difficult and debatable. Chaney clearly establishes that an agency's decision not to take enforcement action is presumptively not subject to judicial review under the APA. 470 U.S. at 830-31. It is less clear, however, whether and how this rule applies to DACA and other deferred-action programs that, at least on their face, simply provide guidelines for the exercise of immigration authorities' prosecutorial discretion. (See Mem. from Janet Napolitano, Sec'y, DHS, to David V. Aguilar, Acting Comm'r, U.S. Customs & Border Protection, et al. (June 15, 2012) at 1-3 (Admin. R. (Dkt. 77-1) at 1-3).) Closely related issues have repeatedly divided the Court of Appeals for the Fifth Circuit. Compare Texas v. United States, 809 F.3d 134, 163-69 (5th Cir. 2015) ("Texas II") (concluding that the Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") program was subject to judicial review under the APA notwithstanding Section 701(a)(2)), aff'd by an equally divided Court, 136 S. Ct. 2271 (2016), and Texas v. United States, 787 F.3d 733, 754-62 (5th Cir. 2015) ("Texas I") (same, in denying stay), with Texas II, 809 F.3d at 196-202 (King, J., dissenting) (stating that the case was non-justiciable because DAPA merely "provide[d] guidelines for th[e] exercise of prosecutorial discretion"), and Texas I, 787 F.3d at 769-76 (Higginson, J., dissenting) (same). (See Batalla Vidal Pls. Mem. in Opp'n to Defs. Mot. (Dkt. 226) at 9 n.3.)

How Chaney should apply to an agency's decision to terminate DACA—a deferred-action program of broad applicability—is more uncertain still. The rescission of that program isneither an enforcement decision nor a non-enforcement decision, but a non-non-enforcement decision. Is such a decision simply another exercise of prosecutorial discretion, as Defendants would have it (Defs. Mem. at 6-8), or does it present special considerations not found in Chaney and other challenges to non-enforcement decisions, as this court has previously held? See Chaney, 470 U.S. at 831-32 (holding that an agency's non-enforcement decision is presumptively not subject to APA review because it (1) "often involves a complicated balancing of a number of factors which are peculiarly within [the agency's] expertise," (2) does not involve the agency's "exercise [of] its coercive power over an individual's liberty or property rights," (3) does not "provide[] a focus for judicial review," inasmuch as the agency has not exercised its power; and (4) "shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict"). (Nov. 9 M&O at 23-26.) In light of the difficulty of this question and the apparent absence of controlling authority, the court concludes that there is a "substantial ground for difference of opinion" on this question.⁴

C. Material Advancement of the Ultimate Termination of the Litigation

Third, the court is satisfied that an interlocutory appeal from its November 9 M&O could materially advance the ultimate termination of this litigation. If, on appeal, the Second Circuit were to conclude that the decision to rescind DACA was "committed to agency discretion by law," barring review of that decision under Section 701(a)(2), then such a ruling would necessarily require the dismissal of, at the least, Plaintiffs' substantive APA challenges to that decision. That would not only simplify this court's task but might also reduce the scope of discovery. See Zygmuntowicz v. Hosp. Investments, Inc., 828 F. Supp. 346, 353 (E.D. Pa. 1993) (ultimate termination of litigation materially advanced if interlocutory appeal would, inter alia, "eliminate issues thus making discovery...