Wolfsdorf Rosenthal LLP

Fifth Circuit Denies Emergency Stay of Preliminary Injunction Against DAPA and Expanded DACA


On May 26, 2015, the U.S. Court of Appeals for the Fifth Circuit denied the Obama administration’s request for an emergency stay of a preliminary injunction against its Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expanded Deferred Action for Childhood Arrivals (DACA) program. In denying the request, the Fifth Circuit said that the government “is unlikely to succeed on the merits of its appeal of the injunction.”

The district court previously determined that 26 states who challenged the DAPA and expanded DACA programs were likely to succeed on their procedural Administrative Procedure Act (APA) claim, so it temporarily enjoined implementation of the programs. Among other things, those states argued that the DAPA and expanded DACA programs are procedurally unlawful under the APA because they are substantive rules that are required to undergo notice and comment but the Department of Homeland Security (DHS) had failed to do so. The states also asserted that DAPA and expanded DACA were substantively unlawful under the APA because DHS lacked the authority to implement the programs even if it did follow the correct process.

Among other things, the district court had held that Texas had standing because it would be required to issue driver’s licenses to DAPA and expanded DACA beneficiaries, and the costs of doing so would constitute a cognizable injury. Alternatively, the court held that Texas had standing based on a theory it called “abdication standing,” under which a state has standing if the government has exclusive authority over a particular policy area but declines to act. The court entered the preliminary injunction after concluding that Texas had shown a substantial likelihood of success on its claim that implementation of the DAPA and expanded DACA programs would violate the APA’s notice-and-comment requirements. The Fifth Circuit said it reached only the district court’s first basis for standing—the driver’s license rationale—”because it is dispositive.”

The Fifth Circuit noted that the government’s motion for a stay pending appeal was based on its insistence that the states do not have standing or a right to judicial review under the APA and, alternatively, that the DAPA and the expanded DACA programs are exempt from the notice-and-comment requirements. The government also argued that the injunction’s nationwide scope was an abuse of discretion. The Fifth Circuit did not agree.

The Fifth Circuit will consider the government’s appeal of the preliminary injunction, with arguments scheduled for early July.

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