*1 Doebler; Martin; D. State declined el James appropriately EPA. whether the through decision, Mississippi, necessity the district Gover- Of to make determining Bryant, Plaintiffs-Appellants limited to review is nor Phil court’s some “provide[d] Cross-Appellees EPA has whether the why it cannot as to explanation reasonable v. to make its discretion” or will not exercise explana That necessity determination.91 Secretary, JOHNSON, De- Jeh Charles in the statute.92 grounded tion must be Security; partment Of Homeland Sandweg, Capaci- John his Official highly this deferential light Immigration ty as Director of review, agency’s burden is standard of Enforcement; Lori Customs Scialab- true particularly That is when slight. ba, Capacity Acting in her as Official broadly as section is as written statute Citizenship Director of United States 1313(c)(4)(B). Moreover, when a statute Services, Defen- considerations, agen competing sets out dants-Appellees Cross-Appellants. given discretion to generally cies are give effect to those choose how to best No. 14-10049. Nonetheless, we leave it to mandates.93 hands of the district court to capable Appeals, Court of United States propri in the first instance the determine Fifth Circuit. ety the EPA’s actions.
April 2015. IV. the order of the district
We VACATE the EPA to make a neces- requiring
court
sity and REMAND this determination proceedings consistent with this
case for
opinion.
Christopher CRANE; Engle; L. David A. Carroll; Marie Ricardo
Anastasia
Diaz; Garza; Luciano; Felix Lorenzo Silva; Rebstock;
Tre Fernando Samu- Brokers, E.P.A., cy." Nat’l F.2d at v. Customs 96- See WildEarth Guardians 93. (inter- (D.C.Cir.2014) 751 F.3d 654-55 agency preting provision CAA to "afford[] Massachusetts, prioritize 549 U.S. at sources that officials discretion significant public are the most threats to health to ensure effective administration of agency's regulatory agenda”). Id. at S.Ct. 1438. *2 Kobach, Esq. (argued),
Kris William KS, City, Jung, Kansas Peter Michael Price, L.L.P., Dallas, TX, Strasburger & Plaintiff-Appellant Cross-Appellee. Clair, Jeffrey Esq. (argued), A. Adam *3 Kirschner, Jay Singer, David Michael Justice, Division, Department Ap- of Civil Staff; DC, pellate Washington, for Defen- dant-Appellee Cross-Appellant. Joseph, Washington, Lawrence John DC, Eagle for Amicus Curiae Forum Edu- Legal cation and Defense Fund. Zall, Barnaby Esq., Weinberg, W. Ja- Tolani, L.L.P., Rockville, MD, cobs & for Immigration Amicus Curiae Reform Law Institute. Chavez, &.Valko, Esq.,
Nicolas Chavez L.L.P., Dallas, TX, Crow, Melissa Ellen Director, Werlin, Immigra- Beth American Council, DC, Washington, tion for Amicus Immigration Lawyers Curiae American Association. Bono, Legal
Marisa Mexican-American Fund, Antonio, Defense & Educational San TX, Crow, Director, Melissa Ellen Beth Werlin, Council, Immigration American DC, Washington, for Amici Curiae Mexi- Legal can American Defense & Education- Fund, al American Immigration Council. Bono, Legal Marisa Mexican-American Fund, & El- Defense Educational Melissa Crow, Director, Werlin, len Beth American Council, DC, Immigration Washington, Roth, Immigrant Charles National Justice Center, IL, Chicago, for Amicus Curiae Immigrant National Justice Center. Chavez, Valko, Esq., Nicolas Chavez & L.L.P., Dallas, TX, Crow, Melissa Ellen Director, Werlin, Immigra- Beth American Council, DC, tion Washington, Marisa Bono, Legal Mexican-American Defense & Fund, Antonio, TX, Educational San Immigration Amici National Law particularized injury Curiae required give Center, Legal New York Assistance them standing to maintain this suit. We Group, United We Dream Network. therefore affirm the district court’s judg-
ment.
I. BACKGROUND
KING, DAVIS,
OWEN,
Before
Immigration
A. Enforcement
Laws
Judges.
Circuit
“The Government of the United
DAVIS,
Judge:
W. EUGENE
Circuit
broad,
States has
power
undoubted
over
Plaintiffs-Appellants are
Immi-
several
and the status
gration and Customs Enforcement agents
aliens.”1 The
and Nation
deportation
(collectively
officers
re-
*4
ality
(“INA”),
Act
codified at 8 U.S.C.
“Agents”)
ferred to as
and the
of
State
§ 1101 et
seq.,
comprehensive
is
statu
Mississippi. They
against
filed this suit
tory
governing immigration
scheme
in the
Secretary
Department
of the
of
controls,
United States.
It
among other
Security
Homeland
and the directors of
things,
illegal
the removal of
aliens found
(collec-
departments
agency
within that
“[ajliens
within the United States.2 Those
“DHS”),
tively referred to
in
as
their offi- may
be removed if.
were inadmissible
cial capacities, challenging
DHS’s
di-
entry,
the time of
have been convicted
rective,
requires
which
its officials to use
crimes,
of certain
or meet other criteria
“deferred action” as to a certain class of
set
federal law.”3
immigration
aliens in
proceed-
removal
ings.
The
allege
exercising
INA,
Under the
Secretary
of
law,
deferred action violates federal
Department
be-
of
Security
Homeland
cause
requires
law
them to detain all
“charged
with the administration and en
illegal aliens
purpose
for the
of placing forcement of [the
and all other
INA]
laws
in
the aliens
removal proceedings.
relating
The
and naturaliza
State of Mississippi alleges that
the de-
tion of
Although
aliens....”4
the Secre
ferred action
tary
has caused additional
charged
aliens
of DHS is
with enforcement
and, thus,
to remain in
INA,
the state
causes
of the
“a principal feature of the
spend money
the state to
on providing
system
removal
is the broad discretion
social services. The district
by immigration
court dis-
exercised
officials.”5 In
fact,
missed Plaintiffs’ claims for lack
Supreme
of
recognized
Court has
jurisdiction.
matter
We conclude
nei-
that the concerns justifying
prose
criminal
ther the
nor the State of Missis-
cutorial
“greatly magnified
discretion are
sippi has demonstrated the
deportation
concrete and
context.”6
States, - U.S. -,
v. United
6. See
Arizona
Reno v. American-Arab Anti-Discrimina
2492, 2499,
(2012)
Comm.,
471, 490,
S.Ct.
8. Id. January 2014 DACA amend- 2010. The subject Plaintiffs’ chal- ments are not the 9. Id. at 1-2. lenges. See Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland 10. Id. at 2. Director, Security, Rodriguez, to Leon Services, al., Citizenship et Id.; Ac- See also Consideration Exercising with Re- Prosecutorial Discretion of Deferred (DACA),uscis.gov, Childhood Arrivals tion spect Came to the United to Individuals Who for (last http://www.uscis.gov/childhoodarrivals Respect Certain States as Children and with 19, 2015). February visited are U.S. or Individuals WhoseParents Citizens 20, 2014) (November Pennanent Residents Directive”), ("Johnson http:// available at Napolitano Directive at 2. In 2014—after www.dhs.gov/sites/defaull/files/publications/ acting Secretary the initiation of this lawsuit— 14_112 DHS, Johnson, O_memo_deferred_action.pdf. supplemental Jeh issued According INA, to Section 1225 of the tain all undocumented immigrants they an immigration when officer encounters an come in They contact with. contend admission,” an “applicant they alien who is for follow the statute and decline to fol- the officer must determine whether the low DACA will be to employ- “clearly beyond alien is a doubt enti- ment sanctions. allege also “applicant tled to be admitted.”13 An that following DACA will cause them to present admission” includes aliens in the violate their oath to and defend United States who have not been admit- the laws of the United States.
ted.14 If the examining immigration offi- The State of Mississippi alleges that the cial is not satisfied that the alien is entitled beneficiaries of DACA who remain in the admitted, to be then the officer “shall” state will cost money the state in edu- detain the alien for a removal proceeding.15 cation, healthcare, enforcement, law 1225(b)(2)(A) undisputed It is that Section lost tax In support revenue. allega- of this only directs the to detain an alien tion, Mississippi points to a study purpose for the of placing that alien in conducted Mississippi officials that esti- proceedings. removal It does not limit the mates the net fiscal illegal burden of immi- determine authority of DHS to whether to gration aas whole at million per year. $25 pursue the removal of immigrant. C. Procedural Posture
DACA instructs DHS officials who come into contact with an undocumented alien According to Plaintiffs’ amended com- who program’s meets the criteria “im- .to plaint, began accepting DHS appli- DACA mediately prosecutorial exercise” discre- on August cations 2012. Plaintiffs filed tion, basis, on an individual in order to seeking declaratory this lawsuit and in- uphold priority DHS’s removal scheme.16 junctive later, eight days relief on August Once DHS awards the alien deferred ac- 23, 2012, facially attacking the constitution- tion, may the alien apply for work authori- statutory al and validity of the pro- DACA *6 during zation period the time action is gram. Specifically, Plaintiffs allege that deferred.17 program the violates: (1)
According to the Agents, even if the federal statutes requiring the initi- immigration (2) officialis removals; not satisfied that the ation of by federal law alien “clearly beyond and a doubt enti- conferring non-statutory a form of bene- admitted,” tled to be prohibits DACA the fit—deferred action—to more than 1.7 agent from detaining eligible aliens, aliens for the million rather than a form of purpose commencing proceed- removal relief or benefit that federal law permits ings. (3) Agents The read large scale; 8 U.S.C. on such a by federal law 1225(b)(2)(A) § requiring as them conferring legal to de- employ- the benefit of 1225(b)(2)(A). (CBP), § 13. 8 U.S.C. Border Protection or U.S. Citizen- (USCIS): ship Immigration Services 1225(a)(1). § Id. at (cid:127) respect With to individuals who meet the criteria, above ICE and CBP should imme- 1225(b)(2)(A). § Id. at discretion, diately exercise their on an in- basis, prevent pri- dividual in order to low 16. See Directive which ority being placed individuals from into states, pertinent part: proceedings removal or removed from the respect 1. With to individuals who are en- United States. by countered and Cus- (ICE), toms Enforcement U.S. Customs and 17. Id. at 3. Agents’ the jurisdiction, because any statuto- without
ment authorization provision. relate to that DACA of does not pretense the false and under ry basis (4) challenge this on discretion”; Plaintiffs do not dismissal the con- “prosecutorial remaining causes of Agents’ legislative power appeal. allocation'of stitutional action, however, (5) II, proceed. were allowed to the Article Section Congress; execu- obligation of the constitutional that the cost to the Mississippi asserted faith- care that the laws are tive to take services to providing support state (6) executed; Administra- the fully adequate injury an DACA beneficiaries is conferral of through Act tive Procedure The district court support standing. regulatory implemen- a benefit without a fiscal Mississippi’s allegation that held tation. the speculative too because burden was action, except All of the causes provided for this only support the state that third, challenge portion of DACA which estimated report burden was a 2006 prosecuto- to exercise requires Agents years six the annual cost of detaining from and refrain program rial discretion was instituted. before DACA cause of action produced aliens. The third no studies or other Mississippi certain authorization challenges employment tending to establish evidence would add to the state’s provision program of DACA. DACA already existing costs. 12(b)(1) Defendants filed Fed.R.Civ.P. Dismiss, asserting, among other
Motion to
Next,
proceeded
the district court
standing to chal-
things, that Plaintiffs lack
conduct-
Agents’ remaining
claims and
lenge
provisions
Specifically,
of DACA.
evidentiary hearing
petition
on their
ed an
not
claim that Plaintiffs have
Defendants
injunction. The court
preliminary
for a
can
adequate injury-in-fact that
alleged
injunction
an
preliminary
not rule on the
did
ruling.
a favorable
outstanding jurisdictional ques-
be redressed
because an
Dismiss, the
to the Motion to
opposition
as to whether the
had
tion existed
(1)
injuries:
Agents asserted three distinct
remedies
exhausted their administrative
(2)
office;
proceeding
of their oaths of
to federal court. Ulti-
violation
before
Directive;
compliance
mately,
with the
the district court determined
burden of
pursued
violate a feder-
had not
their remedies
“being compelled
Act, and,
...,
employ- under the Civil Service Reform
pain
al
on
of adverse
statute
thus,
court lacked
mat-
The district
the district
ment action
do not.”
jurisdiction
ter
over these claims. The
oath
violating
court found that
one’s
*7
the remainder of the
court dismissed
injury-in-fact to confer stand-
a sufficient
appeal followed.
Agents’ claims. This
complying
nor
the burden of
ing,
is
However,
the Directive.
the district court
II. STANDARD OF REVIEW
that the threat of an adverse em-
found
a district
court’s
action if the
refuse to
We review
ployment
12(b)(1)
to dismiss for
injury
grant
a
of a
motion
follow the Directive is
sufficient
subject
jurisdiction
matter
de
standing. The court dismissed
lack of
Moreover,
action,
jurisdictional
the
issue
Agents’
challeng-
third cause of
novo.18
the
which
standing
legal question
is a
for
ing
employment
provi-
the
authorization
of
determining
subject
lack
matter
review is de novo.19
sions of DACA for
Env’t,
Greenstein,
710,
a Better
523
691 F.3d
19. Steel Co. v.
18. Choice Inc. v.
Citizens for
83,
1003,
102,
251 subject juris- court being usurp whether the has matter used to the powers of the diction, accept allega- we must as true the political branches.”26 “In keeping with complaint.20 tions set forth in the doctrine, purpose the of this ‘[o]ur stand- “empowered court also mat- consider ing inquiry especially has been rigorous ' may fact in dispute.”21 ters of which be reaching when the dispute merits of the Therefore, a power trial court “has the to would force us to decide whether an action jurisdic- lack dismiss for matter by taken one of the other two branches of separate tion on one of three bases: the Federal Government was unconstitu- ”27 (1) (2) alone; complaint the complaint tional.’
supplemented by undisputed facts evi- (3) record; in complaint
denced
or
“To establish Article III standing,
supplemented by undisputed
plus
facts
(1)
plaintiff
‘injury
fact,’
must show an
in
court’s resolution of disputed facts.”22 (2) a sufficient ‘causal connection between
invoking
jurisdiction
“The party
federal
injury
of,’
and the conduct complained
establishing
bears the burden of
stand-
injury
‘likelihood]’
‘will
23
”28
ing.”
be redressed
a favorable decision.’
III.
AND
LAW
ANALYSIS
injury
“An
satisfy
sufficient to
Article III must
particu
be ‘concrete and
We must first consider the thresh
imminent,
larized’ and ‘actual or
not con
question
jurisdiction.
old
Article III of
”29
jectural
hypothetical.’
or
“Although
the United States Constitution limits the
concededly
imminence is
a somewhat elas
jurisdiction of federal courts to actual
tic
it
concept,
beyond
cannot be stretched
“Cases” and “Controversies.”24 The doc
its purpose, which is to ensure that
standing provides
trine of
definition to
alleged injury
speculative
is not too
by “identifying]
these constitutional limits
III
disputes
purposes
those
which are
Article
appropriately
re
—that
certainly
“Thus,
through
judicial process.”25
impending.”30
solved
we have
“The law of Article III standing,
repeatedly
which is
in
‘threatened
reiterated
separation-of-powers
jury
built on
principles,
certainly
must be
impending to con
prevent
judicial
fact,-’
serves to
process
from stitute
in
‘[a]llega-
and that
-
Inc.,
USA,
20. Choice
tions of
to read the
that even if we were
argues
sufficient.”31
has
way,
unquestionably
that
DHS
statute
Standing
Mississippi’s
A.
pro-
removal
the discretion to terminate
initiation and release
ceedings after their
first
chal
Plaintiffs-Appellants
Mississippi.
immigrant back into
determination
the district court’s
lenge
injury in fact is
Mississippi’s alleged
that
Mississippi’s
that
court held
The district
support standing. Spe
to
speculative
too
speculative
purely
fiscal
was
alleged
that its fiscal
Mississippi argues
cifically,
no concrete evidence
because there was
a 2006
already manifest because
injury is
had increased or
Mississippi’s
that
costs
illegal
aliens of Mis
study shows that
of DACA. Based
increase as a result
will
mil
more than
cost the state
sissippi
$25
court32,
the record before the district
on
DACA authorizes
year.
lion
Since
per
no evi-
agree. Mississippi submitted
we
illegal
those
aliens to re
class of
certain
immigrants
eligible
that
DACA
dence
state,
argues that
Mississippi
main in the
Mississippi
in
Nor did
resided
the state.
necessarily costs the state
program
it would incur
produce evidence of costs
money.
came to
DACA-approved immigrants
some
Instead, Mississippi only as-
the state.
argu-
two
response,
DHS asserts
(based
study)
the 2006
that DACA
First,
failed serts
on
Mississippi
that
has
ments.
money
the state
because the state
the cost to the will cost
allege
showing
facts
that
immi-
illegal
social benefits to
provides
All
increase as a result of DACA.
state will
however,
to,
standing,
Article III
according
grants.
Mississippi
point
that
can
a “con-
Mississippi
that
show
DHS,
costing
is
mandates
illegal immigration
is that
injury that
is
particularized”
costing
is
crete
money,
not that DACA
state
that,
“fairly traceable” to DACA. To do
money.
It could be
state
Mississippi
required
in
was
demonstrate
resulting
reallocation of DHS’s assets
that the state will incur costs because
immigrants
impose
the removal of
Mississip-
Because
program.33
If
the DACA
financial burden on the state.
greater
by any
supported
claim
is not
true,
pi’s
be a
the net effect would
this is
facts,
court that
agree
we
with the district
in
burden on the state.
reduction
the fiscal
speculative.
Second,
Mississippi’s injury
purely
rul-
argues that a
DHS
favorable
carry its burden
Mississippi has failed to
necessarily
redress Missis-
ing would
therefore,
We,
standing.
af-
to establish
alleged injury.
It is uncontested
sippi’s
1225(b)(2)(A)
firm
court’s dismissal of Mis-
§
read as
the district
that 8 U.S.C.
—-if
standing.34
lack of
sissippi’s
the com-
suit for
only compels
Plaintiffs claim—
Arkansas,
general
provide
fund actu-
no evidence of
(quoting Whitmore v.
495
31. Id.
149, 158,
gen-
ally decreasing,
S.Ct.
109 L.Ed.2d
nor have
shown the
(1990) (internal quotation marks omit
the fu-
will decrease in
eral fund revenues
ture____
ted))
Lujan,
(emphasis
original).
See also
Importantly, Petitioners have not
253
Standing
Cir.1978),
Agents’
and
B.
Donelon v. Louisiana Divi-
Law,
sion Administrative
inevitably processes alter their current to i Oath Violation they ensure that defer action with respect DACA-eligible argues to aliens. that DHS they that assert have suf- government “a employee responsible for fered an in fact enforcing because carrying out an agency policy does not require DACA would them to violate their standing challenge policy have uphold oaths to the laws of the United merely responsibilities because of work re- States, 1225(b)(2)(A). § specifically op- policy.” lated to that The district court position, argues that DHS the violation of again agreed with DHS and held that the one’s oath alone is insufficient to establish compliance burden of with DACA is insuf- Instead, standing. plaintiffs must al- satisfy injury requirement ficient to lege separate consequence adverse standing. agree. We they comply will flow with DACA. First, to, agreed
The district court
with DHS and
not point
do
found,
held that the violation of one’s oath alone
plain-
we have not
case where a
support
is not a sufficient
in fact to
tiff
standing
challenge
has had
a de-
standing. Citing
Mississippi
partment policy merely
to Finch v.
it
because
re-
Ass’n,
(5th
State Medical
quired
employees
change
254
The threat of
hypothetical.”37
Second,
jectural
have not
or
Agents
the
practices.
a
injury can suffice as
sufficient
prac-
their
a future
any specificity how
alleged with
fact,
“certainly
if it
way.
only
a
in
but
injury
in
substantial
change
tices will
in the
reit-
allegations
repeatedly
have
impending.”38 “[W]e
no factual
There are
describing
prac-
‘[ajllegations
possible
the
...
complaint
that
amended
erated
how
DACA or
Agents
injury’
the
before
not sufficient.”39
[is]
tices of
future
changed
have
or will
practices
those
that
begin with the observation
We
there are no
importantly,
More
change.
that
no evidence
provided
Plaintiffs have
any change
may
which
oc-
that
allegations
been sanctioned or-
any agent has
sig-
employment
make their
duties
cur will
for
sanctions
employment
threatened with
have
Agents
difficult. The
nificantly more
grant
to
detaining
refusing
an alien and
in fact with
injury
a
alleged
sufficient
com-
DACA.40The
deferred action under
to satis-
compliance with DACA
respect to
on one occasion an
plaint alleges that
of constitutional
requirements
fy
agent
to
agent’s supervisor instructed
standing.
to an
action under the Directive
defer
alien,
agent refused to follow the
and the
Employment
Threat
Sanctions
Hi
agent
The
re-
supervisor’s instruction.
they
Agents allege
that
have
Finally,
non-disciplinary letter admonish-
ceived a
an
in fact
virtue of
suffered
supervi-
ing
refusing
him for
to follow his
employment
with
sanc-
being threatened
instruction. This admonishment
sor’s
the terms
they
comply
tions if
do not
instruc-
refusing
supervisor’s
to follow a
Specifically,
Directive.
of the
Plaintiffs’ claim that
support
tion does not
em-
argue
they
are threatened with
employment
they are threatened with
they
detain DACA-
ployment sanctions
failing to
their dis-
sanctions for
exercise
proceeding.
for a removal
eligible alien
an alien
grant
to
deferred action to
cretion
the facts
The district court found
satisfy
criteria.
appears
who
to
DACA’s
alleged
Agents’ complaint
in the
were suf-
they
ficient
demonstrate that
are threat-
to
brings
This
us to a fundamental flaw
sanctions;
employment
ened with
Agents’ read-
Agents’ argument.
allegations
were sufficient to
these
always
are
ing of the Directive—that
injury in fact
Agents’
claims of
can-
required
grant
deferred action and
standing in this suit. For the
establish
may meet
not detain an alien who
reasons,
following
disagree.
we
criteria —is erroneous. The
Directive’s
above,
it
al-
Directive makes
clear that
As we stated
Plaintiffs must
shall exercise their discretion
lege
partic-
an
that is “concrete and
action,
imminent,
deciding
deferred
grant
ularized” and “actual or
not con-
List,
Anthony
discussing
applicability of the Civil
B.
134. S.Ct. at 2341
40.In
Susan
560,
Act,
Lujan,
(quoting
[Our laws] designed blindly to be enforced without Because the have alleged given consideration to the individual cir- sufficient injury fact to satisfy the re- cumstances of each case. quirements of constitutional standing, we
dismiss their claims for subject lack of jurisdiction. matter respect With to individuals who are en- by countered U.S. and Cus- (ICE)
toms Enforcement ... who [and] IV. CONCLUSION criteria, meet the above ICE ... should Mississippi Neither nor have immediately discretion, exercise their on alleged sufficiently particu- concrete and an individual basis.... larized give would Plaintiffs directive, supplemental The 2014 which standing to challenge DACA. For this rea- DACA, supplements also reinforces this son, affirm we the district court’s dismissal approach to the application of deferred of Plaintiffs’ claims for lack mat- action: jurisdiction.43 ter any Under of the proposals outlined AFFIRMED. above, immigration pro- officers will be specific eligibility vided criteria for de- OWEN, PRISCILLA R. Judge, Circuit action, ferred judgment the ultimate but concurring: as to an immigrant whether granted I fully concur opinion court’s deferred action will be determined on a judgment. separately I write only to note case-by-case basis.42 in order to standing establish The fact that the give directives this de- claims, respect always some it is not gree agent of discretion to the to deal with necessary present concrete evidence by each alien on a case case basis it makes will, that an has beyond occurred or highly unlikely that agency im- would occur, question, Supreme as the im- Court pose an employment against sanction an plicitly recognized in Energy Watt v. Ac- employee who exercises his discretion to Foundation,1 tion Educational The State detain an illegal alien. not, however, Mississippi has made agency unlikelihood of an sanction nature; arguments of this against agent an for exercising discretion expressly granted under the directives to-
gether with the fact that no sanctions —or
warning of sanctions—have been issued
for that persuades exercise us that
Agents are not under a “certainly impend-
ing” threat of an personnel adverse action Directive at 2. preliminary injunction. Because we con- clude standing that Plaintiffs lack to maintain Johnson Directive at 5. suit, cross-appeal this DHS’s is moot. cross-appealed preliminary findings DHS 151, 160-61, 1. 454 U.S. made following the district court the evi- (1981). L.Ed.2d 309 dentiary hearing petition on Plaintiffs' for a