EAST BAY SANCTUARY COVENANT; AL OTRO LADO; INNOVATION LAW LAB; CENTRAL AMERICAN RESOURCE CENTER, Plaintiffs-Appellees,
WILLIAM P. BARR, Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; JAMES MCHENRY, Director of the Executive Office for Immigration Review, in his official capacity; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; KEVIN K. MCALEENAN, Acting Secretary of Homeland Security, in his official capacity; U.S. DEPARTMENT OF HOMELAND SECURITY; KENNETH T. CUCCINELLI, Acting Director of the U.S. Citizenship and Immigration Services, in his official capacity; JOHN P. SANDERS, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; U.S. CUSTOMS AND BORDERPROTECTION; MATTHEW ALBENCE, Acting Director of Immigration and Customs Enforcement, in his official capacity; IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants-Appellants.
Northern District of California, San Francisco D.C. No.
Before: TASHIMA, M. SMITH, and BENNETT, Circuit Judges.
seek a stay pending appeal of the district court's July
24, 2019 order preliminarily enjoining the Department of
Justice and Department of Homeland Security's joint
interim final rule, "Asylum Eligibility and Procedural
Modifications" (the "Rule"), 84 Fed. Reg. 33,
829 (July 16, 2019).
district court found that the Rule likely did not comply with
the Administrative Procedure Act's (APA)
notice-and-comment and 30-day grace period requirements
because Appellants did not adequately support invocation of
the "good cause" and "foreign affairs"
exemptions under the APA. See 5 U.S.C. §
553(a)(1), (b)(1)(B), (d)(3); Buschmann v.
Schweiker, 676 F.2d 352, 357 (9th Cir. 1982) (good cause
exemption "should be interpreted narrowly so that the
exception will not swallow the rule" (internal citations
omitted)); Yassini v. Crosland, 618 F.2d 1356, 1360
n.4 (9th Cir. 1980) (foreign affairs exemption "would
become distended" if applied to immigration rules
generally and requires showing that ordinary public noticing
would "provoke definitely undesirable international
consequences"). We conclude that Appellants have not
made the required "strong showing" that they are
likely to succeed on the merits on this issue. Hilton v.
Braunskill, 481 U.S. 770, 776 (1987).
we deny the motion for stay pending appeal (Docket Entry No.
3) insofar as the injunction applies within the Ninth
grant the motion for stay pending appeal insofar as the
injunction applies outside the Ninth Circuit, because the
nationwide scope of the injunction is not supported by the
record as it stands. Cf. City and County of San Francisco
v. Trump, 897 F.3d 1225, 1243-45 (9th Cir.
injunction must be "narrowly tailored to remedy the
specific harm shown." Id. at 1244 (quoting
Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir.
1987)). We have upheld nationwide injunctions where such
breadth was necessary to remedy a plaintiff's harm.
See, e.g., id.; California v.
Azar, 911 F.3d 558, 582 (9th Cir. 2018) ("Although
there is no bar against nationwide relief in federal district
court . . . such broad relief must be necessary to
give prevailing parties the relief to which they are
entitled." (internal quotation marks and alterations
omitted) (quoting Bresgal, 843 F.2d at 1170-71)).
These are, however, "exceptional cases."
Trump, 897 F.3d at 1244. To permit such broad
injunctions as a general rule, without an articulated
connection to a plaintiff's particular harm, would
unnecessarily "stymie novel legal challenges and robust
debate" arising in different judicial districts.
Id.; see also Azar, 911 F.3d at 583
("The Supreme Court has repeatedly emphasized that
nationwide injunctions have detrimental consequences to the
development of law and deprive appellate courts of a wider
range of perspectives.").
the district court failed to discuss whether a nationwide
injunction is necessary to remedy Plaintiffs' alleged
harm. Instead, in conclusory fashion, the district court
stated that nationwide relief is warranted simply because
district courts have the authority to impose such relief in
some cases and because such relief has been applied in the
immigration context. The district court clearly erred by
failing to consider whether nationwide relief is necessary to
remedy Plaintiffs' alleged harms. And, based on the
limited record before us, we do not believe a nationwide
injunction is justified.
dissenting colleague believes that a nationwide injunction is
appropriate simply because this case presents a rule that
applies nationwide. That view, however, ignores our
well-established rule that injunctive relief "must be
tailored to remedy the specific harm alleged."
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d
970, 974 (9th Cir. 1991) (citations omitted). Indeed, were we
to adopt the dissent's view, a nationwide injunction
would result any time an enjoined action has potential
nationwide effects. Such an approach would turn broad
injunctions into the rule rather than the exception. Under
our case law, however, all injunctions-even ones involving
national policies-must be "narrowly tailored to remedy
the specific harm shown." Trump, 897 F.3d at
1244 (quoting Bresgal, 843 F.2d at 1170).
agree with our dissenting colleague that "time does not
permit a full exploration of the merits of the
'nationwide' issue." But whereas he believes
that such a factor supports the granting of a nationwide
injunction until a merits panel can address the case, we
reach precisely the opposite conclusion. "National
injunctions interfere with good decisionmaking by the federal
judiciary." Samuel L. Bray, Multiple Chancellors:
Reforming the National Injunction, 131 Harv. L. Rev.
417, 461 (2017). They "deprive" other parties of
"the right to litigate in other forums."
Azar, 911 F.3d at 583. Based on the briefing and
limited record before us, and absent an explanation by the
district court as to why a nationwide injunction is necessary
to remedy Plaintiffs' alleged harm in this case, we must
grant the motion for stay pending appeal insofar as the
injunction applies outside the Ninth Circuit.
dissenting colleague also argues that it is
"perplexing" that the government's failure to
demonstrate a strong showing of likelihood of success on the
merits "does not . . . require that a stay of the
nationwide aspect of the injunction  be denied." That
contention misses the mark, however, by conflating the merits
of the government's position with district court's
authority to issue a nationwide injunction. Whether
Appellants have made a strong showing of likelihood of
success on the merits entitling them to a stay of the
preliminary injunction is a separate question from whether
the scope of the injunction is appropriate. In Azar,
for example, we affirmed the preliminary injunction because,
among other things, we found that the plaintiffs were likely
to succeed on their claim that the rules were invalid. 911
F.3d at 575-81. Despite our conclusion that the rules were
likely invalid, however, we also determined that the
injunction's nationwide scope was not supported by the
record. Id. at 584-85. Azar illustrates
that, beyond examining the merits of a party's arguments,
a district court must separately analyze whether nationwide
relief is "necessary to give prevailing parties
the relief to which they are entitled" before issuing
such an injunction. Id. at 582 (quoting
Bresgal, 843 F.2d at 1170-71).
approach-granting a more limited injunction-allows other
litigants wishing to challenge the Rule to do so. Indeed,
several already have. Litigation over the Rule's lawfulness
will promote "the development of the law and the
percolation of legal issues in the lower courts" and
allow the Supreme Court, if it chooses to address the Rule,
to do so "[with] the benefit of additional viewpoints
from other lower federal courts and [with] a fully developed
factual record." Amanda Frost, In Defense of
Nationwide Injunctions, 93 N.Y.U. L. REV. 1065, 1107-08
our decision to partially grant the stay simply upholds the
law of our circuit by ensuring that injunctive relief is
properly tailored to the alleged harm.
this appeal proceeds, the district court retains jurisdiction
to further develop the record in support of a preliminary
injunction extending beyond the Ninth Circuit. Cf.
Trump, 897 F.3d at 1245 ("Because the record is
insufficiently developed as to the question of the national
scope of the injunction, we vacate the injunction to the
extent that it applies outside California and remand to the