This case is one of several brought nationwide by states, counties, and non-profit organizations challenging the Trump administration's revised, final public charge rule, which expands the types of programs that the federal government will consider in public charge determinations to now also include previously excluded health, nutrition, and housing programs. In the fall of 2019, district court judges from across the country granted preliminary injunctions enjoining the government from implementing the public charge rule. But after multiple Circuit Courts and the Supreme Court issued stays of these injunctions, the public charge rule was implemented by the government on February 24, 2020. The District Court in this case issued a nationwide preliminary injunction enjoining implementation of the public charge rule. The Ninth Circuit affirmed the injunction, but vacated its nationwide application. However, the order affirming the injunction is currently stayed pending the Supreme Court's disposition on petitions for review from cases in the Second and Seventh Circuits. In addition, on February 2, 2021, President Biden issued an Executive Order calling for DHS to review agency actions related to the implementation of the public charge rule. A little over a month later on March 9, 2021, DHS officially abandoned the rule and the petitions for certiorari were voluntarily dismissed by the government.

States Sue Over the Public Charge Rule
On August 14, 2019, fourteen states, led by Washington, California, and New York, filed this suit in the United States District Court for the Eastern District of Washington. The plaintiff states sued the Department of Homeland Security (DHS) and its acting secretary, in his official capacity, and United States Citizenship and Immigration Services (USCIS) and its acting secretary, in his official capacity, under the Administrative Procedure Act (APA). The plaintiff states sought relief to declare the Department of Homeland Security’s Final Rule (the Public Charge Rule or the Rule) vacated due to violations of the APA and unconstitutional due to violations of the Equal Protection Clause. The states also sought to preliminarily and permanently enjoin the Rule from being enforced. The case was assigned to District Judge Rosanna Malouf Peterson.

On August 14, 2019, the DHS published a revised, final public charge rule, which defined personal circumstances that affect the ability of individuals and their families to successfully enter the U.S. or acquire legal permanent resident status (i.e., get a green card). The final rule increased the types of programs that the federal government will consider in public charge determinations to now also include previously excluded non-cash health, nutrition, and housing benefits. The Immigration and Nationality Act (INA) provided that if an immigration officer found that a person seeking a visa was likely to become a public charge, that person was “inadmissible.”

The states alleged that the Rule redefined the term “public charge” in a manner contrary to congressional intent and agency interpretation. Since colonial times the term public charge was used to refer to someone permanently and primarily dependent on the government for subsistence. The states' complaint asserted that “the Rule departs from this original meaning by redefining a public charge as a noncitizen who receives common forms of federal and state public assistance, even in small amounts and for a short period of time.” The complaint further states that even though, on average, over 20% of the U.S. population participates in these programs each month, under the Rule, participation in these programs by legally present immigrants could block their path to citizenship. The states alleged that the Rule will deter lawfully present, legally eligible immigrants from participating in these programs, resulting in social and economic costs for the states.

The states filed an amended complaint on September 5, adding an allegation that the Rule was "motivated by Administration officials' intent to discriminate on the basis of race, ethnicity, or national origin," in violation of the Equal Protection Clause.

The States Seek a Stay of the Rule and Preliminary Injunction
On September 6, 2019, the plaintiff states filed a motion to stay the Rule pending final adjudication of their claims on the merits or, in the alternative, for preliminary injunction. The Rule, unless prohibited, was set to go into effect on October 15, 2019. The states asserted that the Rule should not take effect while the legal action was still pending.

On September 20, 2019, defendants filed an opposition to the states’ motion, challenging the states’ standing to bring this action. Defendants also contended the Rule was long overdue after Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act in 1996 to “expand the public charge ground of inadmissibility.” Defendants further asserted that the Rule simply defined the term “public charge” to reflect Congress’ legislated policy and its delegation of broad authority to the Executive Branch to set the definition. Lastly, they argued the Rule was a product of a “well-reasoned process” and was of limited scope.

The District Court Grants a Nationwide Preliminary Injunction
On October 11, 2019, District Judge Rosanna Malouf Peterson granted the states’ Motion for Stay Pending Judicial Review and Preliminary Injunction, finding that they “have shown that the status quo should be preserved pending resolution of this litigation.”

Judge Peterson held that the plaintiff states demonstrated a strong likelihood of success on the merits of their first cause of action under the APA because evidence showed that Congress already rejected key components of the Rule and that the DHS overstepped its authority. Judge Peterson also held that the states demonstrated a strong likelihood of success on the merits of their claim that defendants “acted in an arbitrary and capricious manner in formulating the Public Charge Rule.” Furthermore, Judge Peterson held that there was a significant threat of irreparable injury, in the form of disenrollment from non-cash benefits, to the states and their residents if the Rule was to take effect as scheduled. Lastly, Judge Peterson found that “the balance of equities tips sharply in favor of the Plaintiff States” and that the threat of harm to the government was not enough to outweigh these other factors. Thus, the implementation of the Public Charge Rule was stayed in its entirety, pending entry of a final judgment in the suit, and DHS was enjoined from implementing or enforcing the Rule nationwide. 408 F.Supp.3d 1191.

On October 25, 2019, defendants sought a stay of the preliminary injunction. The defendants informed the court that it would seek appellate relief if the court did not act by November 14.

On October 30, 2019, the defendants appealed the Order Granting Stay and Preliminary Injunction to the Ninth Circuit.

On November 15, 2019, the defendants filed an Emergency Motion for Stay Pending Appeal, arguing that they are likely to prevail on appeal and that enjoining the implementation of the Rule will cause harm to the federal government and taxpayers.

On December 3, 2019, Judge Peterson denied the Defendants' Motion for Stay of the Preliminary Injunction Pending Appeal.

The Ninth Circuit Stays the Preliminary Injunction
On December 5, 2019, Circuit Judges Bybee, Ikuta, and Owens of the Ninth Circuit issued an Order granting the defendants' Emergency Motion for Stay Pending Appeal, concluding that defendants have shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay. Judge Bybee, writing for the court, concluded that defendants are likely to succeed on its claim that the Rule is not contrary to law, reasoning that defendants' "decision to consider the receipt of in-kind government assistance as part of its totality-of-the-circumstances test is a reasonable interpretation of the INA and does not violate the Rehabilitation Act." Judge Bybee further held that the Rule is not arbitrary and capricious; that the defendants sufficiently considered the costs and benefits of changing the Rule and adequately explained the reasons for the change to the Rule. Finally, Judge Bybee concluded that the defendants will suffer irreparable injury absent a stay because the preliminary injunctions will force defendants to grant status to those not legally entitled to it, contrary to its obligations as defined by the Rule. 944 F.3d 773. The plaintiffs filed a motion for reconsideration on December 19, 2019. The Ninth Circuit panel denied this motion and petition for rehearing en banc in February 2020.

The Supreme Court Stays All Nationwide Injunctions Enjoining Implementation of the Public Charge Rule
On January 27, 2020, the Supreme Court, in State of New York v. U.S. Department of Homeland Security, issued a stay on all nationwide injunctions enjoining the defendants from implementing the Rule. 140 S.Ct. 599. Following this decision, USCIS stated that the Rule is set to take effect on February 24, 2020.

On April 17, Judge Peterson issued an order granting plaintiffs' motion to compel defendants to produce a privilege log and discovery regarding their equal protection claim. Judge Peterson found that defendants "sought and received input from other federal agencies, yet did not include those communications in the administrative record." Moreover, Judge Peterson concluded that "[g]iven the inquiry required to determine whether the relevant decisionmakers manifested a discriminatory purpose, the Court finds that reasonable discovery beyond the administrative record is appropriate."

The defendants moved to stay the order on May 5. Judge Peterson denied the stay in part on May 13, though he granted them extended time to produce the privilege log.

Defendants Move to Dismiss; District Court Mostly Denies
On May 22, defendants filed a motion to dismiss for failure to state a claim. Defendants asserted that the amended complaint should be dismissed in light of the Ninth Circuit's "opinion concluding that the Rule falls well within the Executive Branch’s discretion" under the INA and is not arbitrary and capricious. Moreover, defendants asserted that plaintiffs' claims are not justiciable and that "plaintiffs' allegations do not suggest that DHS issued the Rule 'because of' any alleged 'adverse effects upon an identifiable' racial or ethnic group."

Judge Peterson granted the motion in part on September 14, 2020, dismissing the plaintiffs' ultra vires claim with leave to amend by October 16 because it lacked "plausible and detailed allegations that DHS acted outside of its legal authority." Judge Peterson then denied dismissal of the APA claims because all the Court had already ruled that were likely to succeed on the merits. She also held that the statements made by high-level officials combined with the acknowledgement of a discriminatory effect were sufficient grounds for denying dismissal of the equal protection claim.

Defendants moved for reconsideration of the motion to dismiss on October 8. Citing a Ninth Circuit ruling decided on the same day as Judge Peterson's order, Ramos v. Wolf (975 F.3d 872), defendants argued that the controlling law for dismissal of equal protection claims had changed.

Ninth Circuit Affirms the Preliminary Injunction, But Vacates Nationwide Application
On September 15, 2020, the Ninth Circuit heard arguments for the district court's stayed preliminary injunction with a new panel of judges (Circuit Judges Mary Schroeder, William Fletcher, and Lawrence VanDyke). On December 2, 2020, citing recent other circuit court decisions, it issued an order and a 2-1 opinion affirming the preliminary injunction but vacating the nationwide application of it. The Court also affirmed the preliminary injunction of a related case, State of California v. U.S. Department of Homeland Security. 981 F.3d 742. Writing for the majority, Judge Schroeder first concluded that the plaintiff states had standing because they were suffering financial harm from immigrants shifting to state and local aid. Next, she found that the states demonstrated a high likelihood of success on the merits of their claims that the Rule's definition of public charge was inconsistent with a reasonable interpretation of the statute and was arbitrary and capricious. She also found that the remaining preliminary injunction factors favored the plaintiff states. Finally, she determined that the nationwide injunction was not appropriate because identical injunctions had been and were still being litigated in other federal district and circuit courts.

Judge VanDyke dissented from the majority's analysis for the same reasons as the December 5, 2019 decision, citing the Supreme Court's stays from January, a dissenting opinion from a similar ruling in the Seventh Circuit (962 F.3d 208), and a contrary ruling from the Fourth Circuit (971 F.3d 220).

On January 20, 2021, the Ninth Circuit granted a request by the government to stay its December 2, 2020 order affirming the preliminary injunctions, pending the Supreme Court's disposition on petitions for review from the Second and Seventh Circuits. The new public charge rule was to remain in effect until the Supreme Court ruled on the petitions.

On January 22, 2021, the defendants filed a petition to the Supreme Court for review of the preliminary injunction.

On February 1, 2021, Judge Peterson denied the government's motion to reconsider the Court's September 14 order granting in part and denying in part its motion to dismiss. The Court found that, even in light of the Ramos decision, there was sufficient evidence here of discriminatory intent to prevent dismissal.

The Rule is Officially Abandoned and Vacated
On February 2, 2021, President Biden issued an Executive Order calling for DHS to review agency actions related to the implementation of the public charge rule. The following day, the government notified the Court that it would be engaging in discussion with the plaintiff states over how this would impact litigation.

On March 9, 2021, DHS formally abandoned the rule. The government voluntarily dismissed its appeal to the Seventh Circuit, lifting the stay of the Northern District of Illinois' November 2, 2020 decision vacating the Public Charge Final Rule nationwide from (Cook County v. Wolf). That same day, at all parties' requests, the Supreme Court dismissed the pending petition for Cook County, as well as similar petitions for the Ninth (City and County of San Francisco v. USCIS) and Second (New York v. DHS) Circuits.

On March 10, eleven state attorneys general, led by Ken Paxton of Texas, moved to intervene as defendants in the Ninth Circuit. They filed similar motions in the Seventh and Fourth Circuits, and a day later on March 11, they filed an emergency application to the Supreme Court to intervene on behalf of the government and stay the judgment from Cook County.

On March 11, Judge Peterson stayed proceedings until April 12, 2021.

On April 9, 2021 the Ninth Circuit ruled 2-1 to deny the motion to intervene without an opinion. 2021 WL 1310846. However, Judge Vandyke wrote a lengthy dissent, arguing that the Biden administration was now colluding with the plaintiffs in the Public Charge lawsuits, making their interests at odds with the interests of the states who were seeking to intervene. He explained that this case was clearly still worth pursuing, since it had sufficient merit to warrant Supreme Court review and the government was circumventing APA requirements. Moreover, even though the Rule had been vacated, there was still a chance the Supreme Court may reverse that decision, making this lawsuit not yet moot.

As of April 15, 2021, the Public Charge Final Rule has been abandoned and vacated nationwide. The parties are currently conferring on how this will impact litigation. The case is ongoing.

Aaron Gurley - 05/29/2020
Jack Kanarek - 04/15/2021


compress summary