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. 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. 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. Litigation surrounding the preliminary injunctions continues, keeping in mind that the Rule is currently being reevaluated under the Biden administration.

Maryland Coalition Sues Over the Public Charge Rule
On September 27, 2019, a coalition "comprised by local governments, an elected representative, and a number of non-profit and faith-based agencies providing legal and social services to immigrant populations and their families," filed this suit in the United States District Court for the District of Maryland. Plaintiffs, represented by private counsel and the City of Baltimore Department of Law, 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 declaration that the Department of Homeland Security’s Final Rule (the Rule) violates the Administrative Procedure Act (APA) and the Equal Protection Clause of the Fifth Amendment and an order setting it aside. The plaintiffs also sought injunctive relief enjoining the defendants from implementing and enforcing the Rule. The case was assigned to Judge Peter J. Messitte.

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 (INA) 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 alleged that the Rule was arbitrary and capricious, in violation of the APA, because the defendants failed to provide adequate justification for the change, utilized a "patently inadequate cost-benefit analysis" in promulgating the Rule, and disregarded facts and evidence. The plaintiffs also asserted that the Rule denied the constitutional right to equal protection of the laws because a discriminatory purpose was the motivating factor in promulgating the Rule. Moreover, the plaintiffs contended that the Rule will cause actual suffering by producing a chilling effect that discourages eligible members from utilizing public benefits and requiring plaintiffs to allocate significant resources to combat this chilling effect.

Case is Deferred, Related to Another Case, then Reassigned
On October 15, 2019, Judge Messitte entered an order deferring ruling on the complaint. Judge Messitte considered the nationwide preliminary injunctions enjoining defendants from implementing and enforcing the Rule instituted by district courts in New York (State of New York v. DHS) and Washington (State of Washington v. DHS) and concluded that there was not a "need at present to enter into yet another consideration of the relief sought by Plaintiffs in this case."

On December 3, 2019, the parties filed a joint notice of related case, asserting that the current case is related to (Casa de Maryland v. Trump) and requesting that the case be transferred to Judge Paul J. Grimm for concurrent adjudication. The parties contended that that "the two cases 'arise from the same or identical transaction, happenings, or events,' that they involve identical defendants, and that hearing them separately 'would entail substantial duplication of labor if heard by different judges.'” In that case, Judge Grimm had issued an order for a nationwide preliminary injunction enjoining the defendants from implementing or enforcing the Rule. The cases were ordered related and the current case reassigned to Judge Grimm on December 6.

The plaintiffs filed an amended complaint on January 3, 2020, in which they asserted the same causes of actions, claims for relief, and requests for relief. However, the amended complaint removed the Mayor and City Council of Baltimore as a plaintiff. On the same day, the Mayor and City Council of Baltimore was added as a plaintiff in an amended complaint in Casa de Maryland.

The Supreme Court Stays All Nationwide Injunctions Enjoining Implementation of the Public Charge Rule
On January 27, 2020, the Supreme Court issued orders staying a nationwide injunction in State of New York v. U.S. Department of Homeland Security and an injunction for the State of Illinois in Cook County, Illinois v. Wolf. Following these decisions, the defendants indicated that the Rule would be implemented and enforced starting February 24, 2020.

District Court Stays Discovery Pending Motion to Dismiss
On March 17, 2020, Judge Grimm issued an order granting the defendants' motion to stay "proceedings related to discovery and completion of the administrative record," but ordered the parties to continue with the motion to dismiss briefing.

On May 27, defendants filed a motion to dismiss plaintiffs' complaint. Defendants asserted that the complaint should be dismissed in full "[i]n light of the Supreme Court’s repeated stays of injunction, the Ninth Circuit’s detailed opinion on the Rule’s legality," and because the Rule does not violate the due process or equal protection clauses.

The Fourth Circuit Reverses Judge Grimm's October 15, 2019 Nationwide Preliminary Injunction
On August 5, a split Fourth Circuit panel (Circuit Judges Harvie Wilkinson III, Paul Niemeyer, and Robert King) issued an order and opinion denying the plaintiffs' preliminary injunction from the related case Casa de Maryland v. Trump. 971 F.3d 220. Writing for the majority, Judge Wilkinson held that Casa lacked standing; that the plaintiffs were unlikely to win on the merits of their claims because the Rule was a permissible interpretation of "public charge;" and that a nationwide injunction was an overly broad remedy.

Judge King dissented. Citing a decision of the Seventh Circuit two months prior (962 F.3d 208), he disagreed on all points. He would have held that plaintiffs did have standing; that the plaintiffs were likely to win on the merits because the Rule was not a permissible interpretation of "public charge" given the statute and history; and that a nationwide injunction was an appropriate remedy given the circumstances.

In light of this decision, back in the district court, Judge Grimm back issued an order on August 7, directing the parties to supplement their briefings on the pending motion to dismiss.

The Reversal is Stayed Pending a Rehearing en banc
On September 15, the Fourth Circuit's order was stayed pending ruling on a petition to rehear the case en banc. That petition was granted on December 3, 2020, and oral arguments are scheduled to begin in March 2021.

President Biden Issues Executive Order to Review the Public Charge Rule
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 parties are currently conferring to determine how this will impact the litigation.

As of February 21, 2021: (1) the Fourth Circuit is scheduled to hear oral arguments in March for the rehearing en banc on the preliminary injunction; (2) the district court has yet to rule on the motion to dismiss, likely pending the Fourth Circuit's rehearing; and (3) the parties are tentatively continuing with litigation, but keeping in mind that the Rule is currently being reevaluated under the Biden administration.

The case is ongoing.

Aaron Gurley - 03/19/2020
Jack Kanarek - 02/21/2021


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