This case is one of several brought nationwide by States, counties, and nonprofit 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. The District Court in this case issued a preliminary injunction enjoining implementation of the public charge rule and the Ninth Circuit affirmed the injunction. 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. 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.

California, Maine, Oregon, Pennsylvania and D.C. Sue Over the Public Charge Rule
On August 16, 2019, the states of California, Maine, Oregon, and Pennsylvania along with the District of Columbia filed this suit in the United States District Court for the Northern District of California. The plaintiffs 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 plaintiffs sought relief to declare the Department of Homeland Security’s Final Rule (the Rule) vacated due to violations of the APA and the Equal Protection Clause of the Fifth Amendment. The plaintiffs sought injunctive relief enjoining the defendants from implementing the Rule. The case was initially assigned to Magistrate Judge Jacqueline Scott Corley.

On August 14, 2019, the DHS published a revised, final public charge rule, which defines 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 increases 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. The Immigration and Nationality Act provides that if an immigration officer finds that a person seeking a visa is likely to become a public charge, that person is “inadmissible.” Thus, an immigrant who uses non-cash benefits such as food stamps or Medicaid, or is deemed likely to receive them in the future, may be found more likely to be a public charge and inadmissible for purposes of a visa or green card application. According to a New York Times article, the new standards would directly affect about 1.2 million applicants annually, primarily immigrants from Africa and Latin America. The rule was initially set to be implemented on October 15, 2019.

The plaintiffs claimed that the Rule is unlawful because it was enacted contrary to the meaning of statutory terms in the Immigration and Nationality Act (INA), the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA), the Rehabilitation Act, and the plaintiffs' statutory option to provide healthcare and nutrition benefits to the affected immigrants. The plaintiffs also asserted that the Rule is arbitrary and capricious because defendants "relied on factors that Congress did not intend, failed to consider important aspects of the problem the agency is addressing, and has offered no explanation for the Rule that is consistent with the evidence that is before the agency." Finally, the plaintiffs contended that the Rule violates the Equal Protection Clause of the Fifth Amendment because it was "motivated by improper discriminatory intent and bias against non-White immigrants" and because defendants "adopted it to harm a politically unpopular group and advance unconstitutional animus."

The plaintiffs further contended that the Rule will cause plaintiffs to lose federal funds as immigrants disenroll from affected programs. They also asserted that the Rule, by causing confusion and fear in immigrant communities, will impose significant administrative costs and disrupt health and social services systems. Lastly, the plaintiffs proclaimed that the negative health outcomes that will result from the Rule will ultimately be paid for by the plaintiffs.

The Plaintiffs Seek A Nationwide Injunction
On August 26, 2019, the plaintiffs filed a motion for preliminary injunction, seeking a nationwide injunction, or, alternatively, an injunction limited to the five plaintiff states and the District of Columbia, enjoining the defendants from implementing and enforcing the Rule. The plaintiffs argued that a preliminary injunction was appropriate because of their likely success on the merits and that absent an injunction, the plaintiffs will suffer irreparable harm. The plaintiffs also asserted that a nationwide injunction was necessary, as a "five-state injunction would compound confusion (and concomitant harms) for any immigrant who moves back and forth between Plaintiff States and other jurisdictions."

The court issued an order on August 27, 2019, relating the current case with City and County of San Francisco v. U.S. Citizenship and Immigration Services (IM-CA-0156), another case challenging the validity of the Rule under the APA. The case was reassigned to District Court Judge Phyllis J. Hamilton.

In their opposition to the plaintiffs' motion for preliminary injunction filed on September 13, 2019, the defendants argued that the plaintiffs have "no basis for turning their abstract policy disagreement with the Executive Branch into a nationwide injunction." The defendants asserted that, in speculating that the Rule will result in economic harms, the plaintiffs have not met their burden in establishing standing. Furthermore, the defendants contended that the Rule is not unlawful, as it "reflects Congress’s delegation of broad authority to the Executive Branch concerning the meaning of 'public charge'" and was "the product of a well-reasoned process that considered the plain text of the statute, legislative intent, statistical evidence, and the substance of hundreds of thousands of comments submitted by the public."

The District Court Grants a Preliminary Injunction
Following a hearing on October 2, 2019, on October 11, 2019, Judge Hamilton issued an order granting the plaintiffs' motion for preliminary injunction. 408 F.Supp.3d 1057. Judge Hamilton concluded that a preliminary injunction was appropriate because the plaintiffs were likely to succeed on the merits and would be irreparably harmed absent an injunction. However, Judge Hamilton did not grant the plaintiffs' request to enjoin the implementation of the Rule nationwide. Because the plaintiffs did not establish "the necessity of such relief," the scope of the injunction was limited to California, Oregon, the District of Columbia, Maine, and Pennsylvania.

The defendants filed a motion for stay of injunction pending appeal to the Ninth Circuit on October 25, 2019. Defendants argued that they are likely to succeed on appeal because the plaintiffs lacked standing and did not fall within the zone of interests of the relevant statute. Defendants also contended that, because they would be "forced to grant lawful permanent residence (“LPR”) status to aliens likely to become public charges at any time under the Rule," they would suffer irreparable harm in the absence of a stay as their interest in "ensuring that 'aliens be self-reliant'" would be affected.

On October 30, 2019, the defendants filed an appeal of the order for preliminary injunction to the Ninth Circuit. The appeal was docketed the next day (Docket No. 19-17214).

In the Ninth Circuit, on November 15, 2019, the defendants filed an emergency motion for a stay pending appeal. The defendants' arguments before the Ninth Circuit mirrored the arguments they put forth in their motion to stay in the district court.

The Ninth Circuit Stays the Preliminary Injunction
On December 5, 2019, a Ninth Circuit panel (Circuit Judges Jay Bybee, Sandra Ikuta, and John Owens) issued an order and opinion granting the defendants' emergency motion to stay the district court's injunction. 944 F.3d 773. The panel also granted a stay of a nationwide injunction enjoining the defendants from implementing the Rule that was issued by the United States District Court for the Eastern District of Washington (State of Washington v. U.S. Department of Homeland Security). The panel first concluded that the plaintiffs had standing and that the motion was not moot, despite nationwide injunctions put in place by district courts in Maryland and New York. Next, the panel found that the defendants demonstrated a strong likelihood of success on the merits of their claims that the Rule's definition of public charge was consistent with the relevant statutes and not arbitrary or capricious. Finally, the panel determined that the defendants had adequately explained the reasons for the Rule, that they would suffer irreparable harm absent a stay, and that, despite potential harms to the plaintiffs, these factors weighed in favor of granting a stay.

Judge Bybee concurred, and wrote a separate opinion to note that "no one should mistake the court’s judgments for its policy preferences" and that it was time for Congress to weigh in on recent immigration debates instead of leaving them for the courts to decide.

Judge Owens concurred with the majority's jurisdiction analysis but would have denied the defendants' motions to stay, in light of: "(1) government’s heavy burden due to the standard of review, (2) opaqueness of the legal questions before the court, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved."

In light of the Ninth Circuit's order, Judge Hamilton terminated the defendants' district court motion to stay the injunction on December 6, 2019.

On December 19, 2019, the plaintiffs filed a motion for reconsideration of the Ninth Circuit's order granting stay of the preliminary injunction.

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, issued a stay on all nationwide injunctions enjoining the defendants from implementing the Rule. 140 S.Ct. 599. Following this decision, the defendants indicated that the Rule would be implemented and enforced starting February 24, 2020.

The Plaintiffs Seek the Administrative Record
Two days later the plaintiffs filed a motion in the district court seeking to compel the defendants to complete the administrative record (AR) and requesting leave to take discovery in support of their Equal Protection claims. The plaintiffs alleged that the AR provided by the defendants was inadequate, lacking key documents "critical to the Court’s evaluation of how the Rule departs from prior policy and practice."

On February 18, 2020, the Ninth Circuit panel voted to deny the plaintiffs' motion for reconsideration. Judge Bybee and Judge Ikuta voted to deny the motion and Judge Owens voted to grant the motion.

On April 1, 2020, Judge Hamilton granted in part and denied in part the plaintiffs' motion to complete the AR and compel discovery on their equal protection claim. 2020 WL 1557424. Judge Hamilton concluded that plaintiffs had rebutted the presumption of a complete AR and were thus entitled to documents concerning "inter-agency communications providing comments to DHS" about the Rule. Moreover, Judge Hamilton found that plaintiffs' constitutional claim existed outside of their APA claim, and thus discovery on the claim was appropriate.

District Court Grants in Part, Denies in Part Motion to Dismiss
On April 22, 2020, the defendants filed a motion to dismiss the complaint for failure to state a plausible claim. Defendants asserted that the complaint should be dismissed in light of the Ninth Circuit's ruling that "the Rule falls well within the Executive Branch’s discretion to interpret and implement the public charge inadmissibility provision in the INA and is not arbitrary or capricious," because the plaintiffs lack jurisdiction, and because the complaint included "no well-pled allegation that DHS issued the Rule based on any improper discriminatory motive."

On August 3, 2020 the district court granted in part and denied in part defendants' motion to dismiss. 476 F. Supp. 3d 994. Judge Hamilton denied that plaintiffs lacked jurisdiction, but granted dismissal of the claims relating to the Rehabilitation Act, state healthcare discretion, and Fifth Amendment Equal Protection. The first and fourth claims of the complaint, relating to violation of the INA and allegations of being arbitrary and capricious, were deferred pending the ruling on the preliminary injunction in the Ninth Circuit.

Ninth Circuit Affirms the Preliminary Injunction, But the Order is Stayed
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 injunction, but vacated the nationwide application of the State of Washington v. U.S. Department of Homeland Security injunction. 981 F.3d 742. Writing for the majority, Judge Schroeder first concluded that the plaintiffs had standing because they were suffering financial harm from immigrants shifting to state and local aid. Next, she found that the plaintiffs 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 plaintiffs. 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 December 16, 2020, DHS requested a stay of the Ninth Circuit's affirming order pending the Supreme Court's disposition on petitions for review from the Second and Seventh Circuits. Since the other parties did not dispute it, Judge Hamilton granted the request on December 17, as did the Ninth Circuit panel on January 20, 2021. The new public charge rule was to remain in effect until the Supreme Court ruled on the petitions.

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.

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 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 - 03/08/2020
Jack Kanarek - 04/15/2021


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