Cook County, Illinois v. Wolf
Case Information
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
COOK COUNTY, ILLINOIS, an Illinois governmental )
entity, and ILLINOIS COALITION FOR IMMIGRANT )
AND REFUGEE RIGHTS, INC., ) 19 C 6334
) Plаintiffs, ) Judge Gary Feinerman ) vs. ) ) CHAD F. WOLF, in his official capacity as Acting )
Secretary of U.S. Department of Homeland )
Security, U.S. DEPARTMENT OF HOMELAND )
SECURITY, a federal agency, KENNETH T. )
CUCCINELLI II, in his official capacity as Acting )
Director of U.S. Citizenship and Immigration Services, )
and U.S. CITIZENSHIP AND IMMIGRATION )
SERVICES, a federal agency, )
) Defendants. ) M EMORANDUM O PINION AND O RDER
Cook County and Illinois Coalition for Immigrant and Refugee Rights, Inc. (“ICIRR”) allege in this suit that the Department of Homeland Security’s (“DHS”) final rule, Inadmissibility on Public Charge Grounds , 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“Final Rule” or “Rule”), is unlawful. Doc. 1. Plaintiffs claim that the Rule violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq ., because (1) it exceeds DHS’s authority under the public charge provision of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(4)(A); (2) is not in accordance with law; and (3) is arbitrary and capricious. Doc. 1 at ¶¶ 140-169. ICIRR also claims that the Rule violates the equal protection component of the Fifth Amendment’s Due Process Clause. Id . at ¶¶ 170-188.
On October 14, 2019, this court preliminarily enjoined DHS from enforcing the Final
Rule in the State of Illinois, reasoning that the Rule likely violates the APA because it interprets
the term “public charge” in a manner incompatible with its statutory meaning. Docs. 85, 87, 106
(reported at
Shortly after this court denied DHS’s motion to dismiss, the Sevеnth Circuit affirmed the
preliminary injunction, reasoning that the Final Rule likely violates the APA.
Discussion
The pertinent background is set forth in this court’s opinions and the Seventh Circuit’s opinion, familiarity with which is assumed.
I. Plaintiffs’ Summary Judgment Motion
DHS forthrightly concedes that the Seventh Circuit’s opinion affirming the preliminary
injunction effectively resolves the APA claims on the merits in Plaintiffs’ favor. Doc. 209 at 7
(“Defendants do not dispute that the Seventh Circuit’s legal conclusions concerning the Rule
may justify summary judgment for Plaintiffs on their APA claims here.”); Doc. 219 at 1
(“Plaintiffs have argued, and Defendants do not dispute, that the Court may grant Plaintiffs’
pending [summary judgment motion] in light of the Seventh Circuit’s decision affirming the
Court’s preliminary injunction order.”). That concession is appropriate given the Seventh
Circuit’s conclusion that the Final Rule is both substantively and procedurally defective under
the APA.
As for substance, the Seventh Circuit held in pertinent part as follows: … Even assuming that the term “public charge” is ambiguous and thus might encompass more than institutionalization or primary, long-term dependence on сash benefits, it does violence to the English language and the statutory context to say that it covers a person who receives only de minimis benefits for a de minimis period of time. There is a floor inherent in the words “public charge,” backed up by the weight of history. The term requires a degree of dependence that goes beyond temporary receipt of supplemental in-kind benefits from any type of public agency.
* * *
The ambiguity in the public-charge provision does not provide DHS unfettered discretion to redefine “public charge.” We find that the interpretation reflected in the Rule falls outside the boundaries set by the statute.
Id . at 229. [*] As for procedure, and in the alternative, the Seventh Circuit held that the Rule was “likely to fail the ‘arbitrary and capricious’ standard” due to “numerous unexplained serious flaws: DHS did not adequately consider the reliance interests of state and local governments; did not acknowledge or address thе significant, predictable collateral consequences of the Rule; incorporated into the term ‘public charge’ an understanding of self-sufficiency that has no basis in the statute it supposedly interprets; and failed to address critical issues such as the relevance of the five-year waiting period for immigrant eligibility for most federal benefits.” Id . at 233. Given these holdings, DHS is right to acknowledge that this court should grant summary judgment to Plaintiffs on their APA claims.
The parties disagree, however, about the appropriate remedy. Plaintiffs ask this court to vacate the Final Rule. Doc. 201 at 35-37. DHS contends that this court should vacate the Rule only insofar as it affects Plaintiffs, meaning that the vacatur should be limited to the State of Illinois. Doc. 209 at 27-29. Plaintiffs are correct.
The APA provides in pertinent part that “[t]he reviewing court shall … hold unlawful and
set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “[A]gency
action” includes “the whole or a part of an agency rule.”
Id
. § 551(13). By the APA’s plain
terms, then, an agency rule found unlawful in whole is not “set aside” just for certain plaintiffs or
geographic areas; rather, the rule “shall” be “set aside,” period.
See Murphy v. Smith
, 138 S. Ct.
floor inherent in the words ‘public charge,’” and that “[t]he term requires a degree of dependence
that goes beyond temporary receipt оf supplemental in-kind benefits from any type of public
agency.”
784, 787 (2018) (“[T]he word ‘shall’ usually creates a mandate, not a liberty, so the verb phrase ‘shall be applied’ tells us that the district court has some nondiscretionary duty to perform.”) (quoting 42 U.S.C. § 1997e(d)(2)); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach , 523 U.S. 26, 35 (1998) (“[T]he mandatory ‘shall’… normally creates an obligation impervious to judicial discretion.”) (quoting 28 U.S.C. § 1407(a)).
Precedent confirms that the APA’s text means what it says. For example, in
Bowen v. Georgetown University Hospital
,
DHS cites
Johnson v. United States Office of Personnel Management
,
DHS retorts that an order vacating the Final Rule without any geographic limitation
would be akin to entering the kind of nationwide injunction that the Fourth Circuit and two
Justices have сriticized in other cases involving APA challenges to the Rule. Doc. 209 at 27-30;
see DHS v. New York
,
Moreover, DHS’s analogy fails to recognize that the two remedies—vacatur of a rule,
and a nationwide injunction against its implementation—have significant differences. A
nationwide injunction is a “drastic and extraordinary remedy” residing at the outer bounds of the
judicial power.
Monsanto Co. v. Geertson Seed Farms
,
Once a reviewing court determines that the agency has not adequately explained its decision, the [APA] requires the court—in the absence of any contrary statute—to vacate the agency’s action. The [APA] states this in the clearest possible terms. Section 706(2)(A) provides that a “reviewing court” faced with an arbitrary and capricious agency decision “shall”— not may — “hold unlawful and set aside” the agency action. Setting aside means vacating; no other meaning is apparent. Often we do this simply as a matter of course.
Checkosky v. SEC
,
In sum, the Final Rule is vacated, and the vacatur is not limited to the State of Illinois.
II. Rule 54(b) Judgment
With the APA claims resolved in Plaintiffs’ favor, the question becomes whether the court should enter judgment under Rule 54(b) or, rather, under Rule 58—and, relatedly, what should happen to ICIRR’s equal protection claim. Plaintiffs urge this court to enter a Rule 54(b) judgment on their APA claims and allow ICIRR to continue litigating its equal protection claim. Docs. 217-218. DHS does not expressly address whether a Rule 54(b) or Rule 58 judgment should be entered, but argues in its brief—and reiterated last week at oral argument, Doc. 220— that the court should stay further proceedings on the equal protection claim if judgment is entered on the APA claims. Doc. 219 at 1, 4-5. The court will enter a Rule 54(b) judgment and, given the particular facts and circumstances of this suit and parallel suits pending elsewhere, will not stay litigation on the equal protection claim.
“When a case involves more than one claim, Rule 54(b) allows a federal court to direct
entry of a final judgment on ‘one or more, but fewer than all, claims,’ provided there is no just
reason for delay.”
Peerless Network, Inc. v. MCI Commc’ns Servs., Inc.
,
As to the “final judgment” requirement, “a judgment must be final in the sense that it is
an ultimate disposition of an individual claim entered in the course of a multiple claims action.”
Ibid
. (internal quotation marks omitted). A judgment is not “truly final” if “there is too much
factual overlap with claims remaining in the district court.”
Peerless Network
,
The final judgment requirement is satisfied here. The APA claims concern whether the
Final Rule properly implements the INA’s public charge provision and whether DHS’s
rulemaking was arbitrary and capricious, Doc. 1 at ¶¶ 140-169;
Moreover, the APA and equal protection claims are not “different legal theories aimed at
the same recovery.”
Peerless Network
,
As to the “no just reason to delay the appeal” requirement, “a district court must take into
account judicial administrative interests as well as the equities involved.”
Curtiss-Wright Corp.
v. Gen. Elec. Co.
,
https://www.uscis.gov/news/public-charge-fact-sheet (last updated Sept. 22, 2020)—there is no just reason for delaying the entry of judgment or DHS’s appeal thereof.
In sum, the entry of a Rule 54(b) final judgment on the APA claims is proper. The
quеstion remains whether this court should allow litigation to proceed on ICIRR’s equal
protection claim. In urging a stay of litigation on that claim, DHS invokes the constitutional
avoidance doctrine, arguing that “courts ‘will not decide a constitutional question if there is some
other ground upon which to dispose of the case,’ especially if the other ground ‘afford[s] [a
plaintiff] all the relief it seeks.’” Doc. 219 at 3 (quoting
Nw. Austin Mun. Util. Dist. No. 1 v.
Holder
,
DHS argues in the alternative that this court should stay litigation on ICIRR’s equal protection claim because discovery on that claim “could consume significant resources of both the Court and the parties.” Doc. 219 at 5. If this case were the only challenge to the Final Rule pending in federal court, DHS’s argument would have significant weight. But as DHS confirmed at argument, Doc. 220, discovery is proceeding on equal protection claims brought in two parallel public charge cases. See Washington v. U.S. DHS , No. 19 C 5210 (E.D. Wash.); New York v. U.S. DHS , No. 19 C 7777 (S.D.N.Y.). Proceeding with discovery on ICIRR’s equal protection claim here therefore is unlikely to impose on DHS much work in addition to the work it is already doing in those other cases.
III. Stay of Judgment Pending Appeal
While acknowledging that, given the Seventh Circuit’s ruling, summary judgment should
be granted to Plaintiffs on the APA claims, DHS asks this court to stay its judgment pending
appeal. Doc. 209 at 29-30. “The standard for granting a stay pending appeal mirrors that for
granting a preliminary injunction. … To determine whether to grant a stay, [the court]
consider[s] the moving party’s likelihood of success on the merits, the irreparable harm that will
result to each side if the stay is either granted or denied in error, and whether the public interest
favors one side or the other.”
In re A & F Enters., Inc. II
,
The hierarchical structure of the judiciary makes this a straightforward decision for a
district court. The Seventh Circuit held in the cases just cited that the standard for granting a
stay pending appeal mirrors that for granting a preliminary injunction, and held in this case that
the criteria for a preliminary injunction have been met.
DHS counters with the argument that the Supreme Court, in staying this court’s
preliminary injunction order, “‘necessarily conclud[ed]’ that Plaintiffs were unlikely to succeed
on the merits” and “necessarily … determin[ed] that the balance of the harms and the public
interest support a stay.” Doc. 209 at 29 (quoting
CASA de Md.
,
With respect to the balance of harms, we must take account of the Supreme Court’s decision to stay the preliminary injunction entеred by the district court. The Court’s stay decision was not a merits ruling. … We do not know why the Court granted this stay, because it did so by summary order, but we assume that it abided by the normal standards. Consequently, the stay provides an indication that the Court thinks that there is at least a fair prospect that DHS should prevail and faces a greater threat of irreparable harm than the plaintiffs.
The stay thus preserves the status quo while this case and others percolate up from courts аround the country. There would be no point in the merits stage if an issuance of a stay must be understood as a sub silentio disposition of the underlying dispute. With the benefit of more time for consideration and the complete preliminary injunction record, we believe that it is our duty to evaluate each of the preliminary injunction factors, including the balance of equities. In so doing, we apply a ‘sliding scale’ approach in which “the more likely the plaintiff is to win, the lеss heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Valencia v. City of Springfield , 883 F.3d [959,] 966 [(7th Cir. 2018)]. We also consider effects that granting or denying the preliminary injunction would have on the public. Ibid .
In our view, Cook County has shown that it is likely to suffer (and has already begun to suffer) irreparable harm caused by the Rule. Given the dramatic shift in policy the Rule reflects and the potentially dire public health consequences of the Rule, we agree with the district court that the public interest is better served for the time being by preliminarily enjoining the Rule.
Conclusion
Plaintiffs’ summary judgment motion is granted. The court enters a Rule 54(b) judgment vacating the Final Rule, to take effect immediately. Litigation may proceed in this court on ICIRR’s equal protection claim. November 2, 2020 ___________________________________
United States District Judge
Notes
[*] Although the Seventh Circuit reached its conclusion under step two of
Chevron
and this court
stopped at step one, there is less dissonance between the two opinions than meets the eye.
Adopting the methodological approach urged by DHS—which it has since abandoned—that
“‘the late 19th century [is] the key time to consider’ for determining the meaning of the term
‘public charge,’”