Batalla Vidal, et al. v. Nielsen, et al.

Filing 233

MEMORANDUM & ORDER, For the reasons stated above, Defendants' motion for the court to certify its November 9th M&O for interlocutory appeal pursuant to 28 U.S.C. 1292(b) (Dkt. 219 in No. 16-CV-4756; Dkt 184 in No. 17-CV-5228) is GRANTED. Discovery and record supplementation in these cases are stayed pending the Second Circuit's decision on Defendants' anticipated interlocutory appeal. (See Dec. 27, 2017, USCA Order at 4.) So Ordered by Judge Nicholas G. Garaufis on 1/8/2018. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

MARTIN JONATHAN BATALLA VIDAL et al.,

Plaintiffs,
MEMORANDUM & ORDER

-against16-CV-4756(NGG)
(JO)

KIRSTJEN M.NIELSEN,Secretary, Department of
Homeland Security, et aL,
Defendants.
-X

STATE OF NEW YORK et ai..
Plaintiffs,
MEMORANDUM & ORDER

-against17-CV-5228(NGG)
(JO)

DONALD TRUMP,President ofthe United States, et al..
Defendants.
-X

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. 104^)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

' All record citations refer to the docket in Batalla Vidal v. Nielsen. No. 16-CV-4756(E.D.N.Y.), except as
otherwise noted.

"committed to agency discretion by law," and therefore immune from judicial review under the
Administrative Procedure Act("A?A"),

5 U.S.C. § 701(a)(2)(Nov.9 M&O at 20-28), or that

the Immigration and Nationality Act("INA")divests courts ofjurisdiction to hear challenges to
that decision,

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 ofthe 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. ICQ, 111 (2009)). "Whether an interlocutory appeal is warranted lies
squarely within the discretion ofthe district court." Garber v. Office ofthe Comm'r of Baseball.
120 F. Supp. 3d 334,337(S.D.N.Y. 2014). The court need only identify one controlling
question oflaw that satisfies Section 1292(b)to certify the entire order for appeal. Citv ofNew
York V. Beretta U.S.A. Corp.. 524 F.3d 384, 391-92(2d Cir. 2008).

11.

DISCUSSION

Defendants contend that the November 9 M&O presents two questions oflaw that satisfy
the requirements of Section 1292(b):"(1) whether or not the rescission ofDACA was a decision
'committed to agency discretion by law;' and (2) whether or not the INA deprives federal district

courts ofjurisdiction over challenges to the Rescission Policy." (Def. Mem. at 4.) The court

agrees that the first ofthese questions meets the requirements of Section 1292(b).^
A.

Controllmg Question of Law

First, the issue of whether the decision to rescind the DACA program was "committed to

agency discretion" presents a "controlling question oflaw." 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 ofthe 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. Credit

^ Because the court concludes that this question satisfies Section 1292(b), it need not address Defendants' argument
that 8 U.S.C. § 1252(g) bars review ofthese cases because the rescission ofthe DACA program is a prerequisite to
DACA beneficiaries' removal fi om the United States. S^ Republic of Colombia v. Diageo N. Am. Inc.. 619
"
F. Supp. 2d 7,13 n.l (E.D.N.Y. 2007)("The court need not consider whether the requirements for Section 1292(b)
certification have been met for each ...close legal issue addressed in the Order."). (Defs. Mem.at 11-13.) The
court has previously explained why Defendants' argument about Section 1252(g)is inconsistent with the statutory
text and with Reno v. American-Arab Anti-Discrimination Committee. 525 U.S. 471 (1999). (Nov.9 M&O at 28-

32.) Defendants offer nothing to disturb the court's conclusion on this point. Nor will the court address Defendants'
apparent contention that if"agency action is committed to agency discretion by law," 5 U.S.C. § 701(a)(2), courts
may not consider whether the agency complied with the APA's procedural requirements in taking that action. (Defs.
Mem. at 10-11.) To the contrary,"under the APA the ultimate availability of substantive judicial review is distinct
from the question of whether the basic rulemaking strictures ofnotice and comment and reasoned explanation
apply." Am. Med. Ass'n v. Reno. 57 F.3d 1129, 1134(D.C. Cir. 1995)(citing Lincoln v. Vigil. 508 U.S. 182,195
(199311: accord N.Y.C. Employees' Ret. Svs. v. SEC.45 F.3d 7,11 (2d Cir. 1995). Finally, Defendants argue that

the DACA rescission is a "statement of policy exempt from notice-and-comment rulemaking" requirements(Defs.
Mem. at 10), but, as the Plaintiffs in New York v. Trump (the "State Plaintiffs") correctly note, that is a merits
argument that the court has yet to address, not a jurisdictional orjusticiability argument that the court somehow
overlooked in its November 9 M&O(State Pis. Mem. in Opp'n to Defs. Mot.("State Pis. Opp'n")(Dkt. 193, No.
17-CV-5228)at 13 n.6).

Bancorp. Ltd.. 103 F. Supp. 2d 223,227(S.D.N.Y. 2000).^ 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. Chanev.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 offirst impression." Klinshoffer. 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 offirst impression for the Second Circuit."(quoting In re Facebook.
Inc. IPO Sees. & 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) ofthe APA to the rescission ofthe DACA program presents

such a difficult issue offirst impression. In its November 9 M&O,the court concluded that
Defendants' rescission ofthe DACA program did not fall into Section 701(a)(2)'s "very narrow

exception" to the APA's presumption ofreviewability 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

^ The State Plaintiffs contend that the November 9 M&O presents no "controlling issue oflaw" because reversal of
this court's holding that Plaintiffs' APA claims are justiciable would "have no bearing" on Plaintiffs' claim that the
decision to rescind DACA violated the Equal Protection Clause ofthe Fifth Amendment. (State Pis. Opp'n at 7-8.)
District courts have discretion, however, to certify an order for interlocutory appeal even when reversal ofthe order
would not terminate the action in its entirety. See Klinghoffer. 921 F.2d at 24("Although the resolution ofan issue
need not necessarilv terminate an action in order to be ^controlling.' it is clear that a question of law is 'controlling'
ifreversal ofthe district court's order would terminate the action."(citations omitted and emphasis added)).

(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. Chanev 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 deferredaction 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 11")(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)), afPd bv an equallv divided Court. 136 S. Ct. 2271 (2016),
and Texas v. United States, 787 F.3d 733, 754-62(5th Cir. 2015)("Texas I"I(same,in denying
stay), with Texas IL 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 Pis. Mem.in Opp'n to Defs. Mot.(Dkt. 226)at 9 n.3.)
How Chanev should apply to an agency's decision to terminate DACA—a deferredaction program of broad applicability—^is more uncertain still. The rescission ofthat program is

neither an enforcement decision nor a non-enforcement decision, but a non-non-enforcement

decision. Is such a decision simply another exercise ofprosecutorial discretion, as Defendants
would have it(Defs. Mem. at 6-8), or does it present special considerations not found in Chanev
and other challenges to non-enforcement decisions, as this court has previously held? See
Chanev. 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
ofa number offactors 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 ofthe difficulty ofthis
question and the apparent absence of controlling authority, the court concludes that there is a

"substantial ground for difference of opinion" on this question."^

^ This is not to say that the court finds Defendants' arguments on this point persuasive. Defendants strain to
analogize the rescission of DACA to Chanev. but there is a meaningful difference between an agency's refusal to
initiate enforcement action and the elimination ofa program that guided when the agency would decline to initiate
enforcement action. Defendants aver that DHS remains free "to later extend deferred action on an individualized

basis to persons regardless ofifthey are former DACA recipients"(id at 7), but the memorandum rescinding the
DACA program made clear that DHS "[w]ill reject all DACA initial requests" received after September 5,2017
(Mem.from Elaine C. Duke, Acting Sec'y, DHS,to James W. McCament, Acting Dir., U.S. Citizenship &
Immigration Servs., et al.. Rescission ofthe June 15, 2012 Memorandum Entitled "Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States as Children"(Sept. 5,2017)at 4(Admin. R.
at 255)). That at the very least "curtails" DHS's ability to exercise prosecutorial discretion with respect to
previously DACA-eligible individuals. (Nov.9 M&O at 24.) Fundamentally, Defendants imply that ifan agency's
decision not to institute enforcement proceedings is unreviewable under the APA,then the reversal ofthat decision
must also be unreviewable. (Cf Defs. Mem. at 7-8("[PJrosecutorial discretion cannot be a one-way valve whereby
the Secretary is free to expand the availability ofdeferred action without subjecting that decision to judicial review,
but, once a policy is announced, any later attempt to change course falls outside the agency's discretion and is only
amenable to APA review.").) Chanev makes clear, however, that decisions not to initiate enforcement action are

unlike decisions to initiate enforcement action in key respects. See 470 U.S. at 831-32. To the court, the decision to
end a non-enforcement policy—and to open the door for the resumption ofenforcement actions—more closely
resembles the latter.

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 ofthis 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 ofthat 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 Zvgmuntowicz v. Hosp. Investments. lnc.> 828 F. Supp. 346,353(E.D. Pa. 1993)

(ultimate termination of litigation materially advanced ifinterlocutory appeal would, inter alia,
"eliminate issues thus making discovery much easier and less costly").

In deciding that interlocutory appeal may materially advance the ultimate termination of
the litigation, the court is mindful of—and indeed, deeply concerned by—^the risk that an

interlocutory appeal would unreasonably delay the prompt resolution of these cases. Such delay,
of course, does not advance the ultimate termination ofthis litigation. See Ahrenholz v. Bd. of
Trs. of Univ. of 111.. 219 F.3d 674,675-76(7th Cir. 2000). This risk of delay is especially

troubling in light of the extraordinary urgency ofthese cases. Plaintiffs aver that, every day,
approximately 122 DACA recipients lose their deferred action and work authorization. (Batalla
Vidal Pis. Mot. for Preliminary Inj.(Dkt. 123)at 1-2.) On March 5, 2018, current DACA

beneficiaries who have had no opportunity to renew their benefits will begin to lose their right to
work in this country and to face the possibility of deportation. (Mem.from Elaine C. Duke,
Acting Sec'y, DHS,to James W.McCament, Acting Dir., U.S. Citizenship & Immigration
Servs., et al.. Rescission ofthe June 15,2012 Memorandum Entitled "Exercising Prosecutorial

Discretion with Respect to Individuals Who Came to the United States as Children"(Sept. 5,
2017)at 4(Admin. R. at 255).) The prompt resolution ofthese cases is thus ofprofound

importance not only to the approximately 800,000 DACA recipients, but also to their families,
friends, employers, schools, and communities, and, indeed, to the nation as a whole.
Notwithstanding the obvious urgency ofthese cases, Defendants only requested
Section 1292(b) certification more than six weeks after the court entered the November 9 M&O

from which Defendants seek to appeal. Although neither Section 1292(b) nor Rule 5(a)ofthe
Federal Rules of Appellate Procedure prescribe how quickly a party must move for certification
of an order for interlocutory appeal,"courts have held that any delay in seeking amendment and
certification 'must be reasonable.'" Morris v. Flaig. 511 F. Supp. 2d 282, 314(E.D.N.Y. 2007)

(quoting Green v. City of New York. No.05-CV-0429(DLI), 2006 WL 3335051, at *2

(E.D.N.Y. Oct. 23, 2006)); accord Century Pac.. Inc. v. Hilton Hotels Corp., 574 F. Supp. 2d
369, 371 (S.D.N.Y. 2008). Defendants' delay in seeking certification is reprehensible, and the

court would be within its discretion to deny Defendants' motion for this reason alone.^ S^ Weir
V. Propst. 915 F.2d 283, 285-86(7th Cir. 1990)(two month delay in seeking Section 1292(b)
certification was "gratuitous"); see also Ferraro v. Sec'v of U.S. Dep't of Health & Human
Servs.. 780 F. Supp. 978,979(E.D.N.Y. 1992)(unjustified two-and-a-half-month delay was an
"indication that the saving oftime is of little concern in this case," weighing against
certification).

Despite its grave misgivings that Section 1292(b) certification will unduly delay these

proceedings, the court nevertheless concludes that interlocutory review ofthe November 9 M&O

^ In their reply brief. Defendants assert that "[a]ny 'delay' in this case is attributable to [their] filing ofa petition for
a writ of mandamus with the Second Circuit." (Defs. Reply in Supp. of Mot.(Dkt. 231)at 6.) That petition,
however, only sought review ofcertain discovery- and record-related orders issued by this court and by Magistrate
Judge James Orenstein; it did not request that the Second Circuit resolve jurisdictional or justiciability issues in the
first instance. (Pet. for Writ of Mandamus(Dkt. 33,In re Elaine C. Duke. No. 17-3345(2d Cir.)) at 4.) The court is

aware of no reason why Defendants could not have promptly sought Section 1292(b) certification of its November 9
M&O,rather than waiting until the Second Circuit had denied their petition. See SEC v. Citigroun Global Mkts..
Inc.. 827 F. Supp. 2d 336,339(S.D.N.Y. 2011)(filing of mandamus petition does not deprive district court of
jurisdiction).
8

would materially advance the resolution ofthis litigation. To avoid undue delay that may
prevent the court from resolving these cases before March 5,2018, Defendants should seek

expedited consideration ofthis appeal.

Fed. R. App. P. 2. The court trusts that the Second

Circuit vrill expeditiously review the November 9 M&O so that this court can promptly provide
Plaintiffs with any relief to which they are legally entitled.
•k

it

Finally, the court is mindful that both the Supreme Court and the Second Circuit have
suggested that the court should consider certifying for interlocutory appeal its ruling on
Defendants' threshold arguments for dismissal. In vacating the Ninth Circuit's denial ofa writ
of mandamus blocking discovery in related challenges to the DACA rescission, the Supreme
Court directed that the U.S. District Court for the Northern District of California "should proceed

to rule on the Government's threshold arguments and, in doing so, may consider certifying that
ruling for interlocutory appeal under 28 U.S.C. § 1292(b)if appropriate." In re United States,
No. 17-801, 2017 WL 6505860, at *2(U.S. Dec. 20,2017)(per curiam). Moreover, in these
cases, the Second Circuit has noted that Defendants have "the right to ask the District Court to

certify its ruling for interlocutory appeal" and suggested that "it may be prudent for the District
Court to stay discovery pending the resolution ofsuch proceedings." (Dec. 27, 2017, USCA

Order(Dkt. 210)at 4.) Because Defendants have established that, at least with respect to the
question of whether the DACA rescission was "committed to agency discretion by law," the
court's November 9 M&O satisfies Section 1292(b), and in light ofthese courts' suggestions that
it should consider whether an interlocutory appeal is appropriate, the court agrees that its
November 9 M&O should be certified for interlocutory appeal.

III.

CONCLUSION

For the reasons stated above, Defendants' motion for the court to certify its November 9

M&O for interlocutory appeal pursuant to 28 U.S.C. § 1292(b)(Dkt 219 in No. 16-CV-4756;
Dkt, 184 in No. 17-CV-5228)is GRANTED. Discovery and record supplementation in these

cases are stayed pending the Second Circuit's decision on Defendants' anticipated interlocutory
appeal. (See Dec. 27,2017, USCA Order at 4.)
SO ORDERED.

s/Nicholas G. Garaufis
'NICHOLAS G. GARAUFIS

Dated: Brooklyn, New York
January
2018

United States District Judge

10