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 countries 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. As of March 2019, the government's appeals of these injunctions are pending in the Circuit Courts.

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 Plaintiff 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 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 Plaintiff 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 Plaintiff 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 Plaintiff 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 plaintiff states.

The plaintiffs 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.

On September 9, 2019, the Plaintiff States filed a Motion for Stay Pending Judicial Review or Preliminary Injunction and claimed that they were likely to succeed on the merits of their claims made in the complaint. The Rule, unless prohibited, was set to go into effect on October 15, 2019. The Plaintiff States asserted that the Rule should not take effect while the legal action was still pending.

On September 20, 2019, the Defendants filed an opposition to the Plaintiff States’ motion, challenging the Plaintiff States’ standing to bring this action. The 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.” The 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.

On October 11, 2019, District Judge Rosanna Malouf Peterson granted the Plaintiff States’ Motion for Stay Pending Judicial Review and Preliminary Injunction, finding that the Plaintiff States “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 Plaintiff States demonstrated a strong likelihood of success on the merits of their claim that DHS “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 Plaintiff 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 Defendants 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 Defendants were 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.

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.

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 27, 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."

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."

As of May 29, defendants' motion to dismiss is pending. More coming soon.

Aaron Gurley - 05/29/2020


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