107 F.4th 1064
9th Cir.2024Background
- In July 2020, an immigration-bond rule (the "Rule") was promulgated by Chad Wolf while he purportedly served as Acting Secretary of Homeland Security; the Rule allowed DHS/ICE to decline surety bonds from certain firms and required internal exhaustion procedures.
- Wolf’s appointment traced to a contested succession sequence (Nielsen → McAleenan → Wolf) in which Nielsen’s amendments applied only to delegations during disasters; courts and this panel concluded McAleenan and Wolf were not validly serving under the FVRA.
- Five surety companies sued under the Administrative Procedure Act, arguing the Rule was invalid because Wolf lacked authority to promulgate it; the district court held the Rule must be vacated and that Secretary Mayorkas’s later ratification was barred by the FVRA’s ratification bar (5 U.S.C. § 3348(d)(2)).
- In April 2021, after Senate-confirmed Secretary Alejandro Mayorkas took office, he ratified the Rule. The government appealed the district court’s vacatur.
- The Ninth Circuit held that under agency-law ratification principles and precedent (e.g., Gordon), a properly appointed Secretary may ratify a predecessor’s unauthorized act—unless the FVRA’s ratification bar applies. The court interpreted § 3348(a)(2)’s term "function or duty" to reach only nondelegable (i.e., exclusive) duties.
- Because the Secretary of Homeland Security could lawfully delegate rulemaking under 8 U.S.C. § 1103 and 6 U.S.C. § 112(b)(1), promulgation of the Rule was delegable and Mayorkas’s ratification cured Wolf’s defect; the Ninth Circuit reversed the district court and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wolf was validly serving as Acting Secretary when he promulgated the Rule | Wolf was not validly appointed due to Nielsen/McAleenan succession errors, so his acts are invalid | The government urged that Nielsen’s errors should be excused or overlooked | Court: Wolf was not validly serving; succession was improper |
| Whether Mayorkas’s ratification of Wolf’s Rule was barred by the FVRA (§ 3348(d)(2)) | Ratification barred because promulgation is a "function or duty" of the Secretary under § 3348 and thus unratifiable if performed by someone not serving under the FVRA | § 3348’s definition of "function or duty" reaches only duties "required by statute to be performed by the applicable officer (and only that officer)" — i.e., nondelegable duties; promulgation is delegable, so ratification is permitted | Court: § 3348(d)(2) applies only to nondelegable/exclusive duties; promulgation was delegable; Mayorkas validly ratified the Rule |
Key Cases Cited
- Consumer Fin. Prot. Bureau v. Gordon, 819 F.3d 1179 (9th Cir. 2016) (a properly appointed principal may ratify prior acts of an improperly appointed officer)
- NLRB v. SW Gen., Inc., 580 U.S. 288 (2017) (discusses FVRA background and consequences for acting officials)
- FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994) (ratification doctrine and after-the-fact authorization governed by agency-law principles)
- Doolin Sec. Sav. Bank v. Office of Thrift Supervision, 139 F.3d 203 (D.C. Cir. 1998) (vacatur/ratification tensions under prior Vacancies Act discussed in FVRA legislative history)
- NLRB v. Noel Canning, 573 U.S. 513 (2014) (recess-appointment context informing appointment validity)
- Kajmowicz v. Whitaker, 42 F.4th 138 (3d Cir. 2022) (holds § 3348(d)’s ratification bar applies only to nondelegable duties)
- Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328 (Fed. Cir. 2022) (interprets § 3348 to reach only duties exclusive to the officer)