Ninth Circuit Order — Partial Stay Pending Appeal (No. 19-16487) — East Bay Sanctuary Covenant v. Barr (N.D. Cal., 2019-08-16)

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U.S. Court of Appeals for the Ninth Circuit · No. 3:19-cv-04073-JST · Doc. 58 · 2019-08-16 · Docket on CourtListener

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FOR PUBLICATION 
 
UNITED STATES COURT OF APPEALS 
 
FOR THE NINTH CIRCUIT 
 
EAST BAY SANCTUARY COVENANT; 
AL OTRO LADO; INNOVATION LAW 
LAB; CENTRAL AMERICAN 
RESOURCE CENTER,   
  
 
 
 
 
 
Plaintiffs-Appellees,  
  
   v.  
  
WILLIAM P. BARR, Attorney General; 
UNITED STATES DEPARTMENT OF 
JUSTICE; JAMES MCHENRY, Director of 
the Executive Office for Immigration 
Review, in his official capacity; 
EXECUTIVE OFFICE FOR 
IMMIGRATION REVIEW; KEVIN K. 
MCALEENAN, Acting Secretary of 
Homeland Security, in his official capacity; 
U.S. DEPARTMENT OF HOMELAND 
SECURITY; KENNETH T. CUCCINELLI, 
Acting Director of the U.S. Citizenship and 
Immigration Services, in his official 
capacity; JOHN P. SANDERS, Acting 
Commissioner of U.S. Customs and Border 
Protection, in his official capacity; UNITED 
STATES CITIZENSHIP AND 
IMMIGRATION SERVICES; U.S. 
CUSTOMS AND BORDER 
PROTECTION; MATTHEW ALBENCE, 
Acting Director of Immigration and 
Customs Enforcement, in his official 
capacity; IMMIGRATION AND 
CUSTOMS ENFORCEMENT,   
No. 
19-16487  
 
D.C. No. 3:19-cv-04073-JST  
Northern District of California,  
San Francisco  
 
ORDER 
FILED 
 
AUG 16 2019 
 
MOLLY C. DWYER, CLERK 
U.S. COURT OF APPEALS 
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Defendants-Appellants. 
 
Before:  TASHIMA, M. SMITH, and BENNETT, Circuit Judges. 
 
 
Appellants seek a stay pending appeal of the district court’s July 24, 2019 
order preliminarily enjoining the Department of Justice and Department of 
Homeland Security’s joint interim final rule, “Asylum Eligibility and Procedural 
Modifications” (the “Rule”), 84 Fed. Reg. 33,829 (July 16, 2019).1   
The district court found that the Rule likely did not comply with the 
Administrative Procedure Act’s (APA) notice-and-comment and 30-day grace 
period requirements because Appellants did not adequately support invocation of 
the “good cause” and “foreign affairs” exemptions under the APA.  See 5 U.S.C. 
§ 553(a)(1), (b)(1)(B), (d)(3); Buschmann v. Schweiker, 676 F.2d 352, 357 (9th 
Cir. 1982) (good cause exemption “should be interpreted narrowly so that the 
exception will not swallow the rule” (internal citations omitted)); Yassini v. 
Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980) (foreign affairs exemption 
“would become distended” if applied to immigration rules generally and requires 
showing that ordinary public noticing would “provoke definitely undesirable 
 
1  
The State of Arizona’s amicus brief in support of Appellants’ motion has 
been filed.  The Professors of Immigration Law’s motion for leave to file an 
amicus brief in opposition to Appellants’ motion (Docket Entry No. 28) is granted, 
and the brief is filed. 
 
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international consequences”).  We conclude that Appellants have not made the 
required “strong showing” that they are likely to succeed on the merits on this 
issue.  Hilton v. Braunskill, 481 U.S. 770, 776 (1987).2    
Consequently, we deny the motion for stay pending appeal (Docket Entry 
No. 3) insofar as the injunction applies within the Ninth Circuit.3      
We grant the motion for stay pending appeal insofar as the injunction applies 
outside the Ninth Circuit, because the nationwide scope of the injunction is not 
 
2  
Our finding that Appellants have not made a “strong showing” does not bind 
the merits panel in reviewing this aspect of the merits, as that is not the standard 
the merits panel will apply.  See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 
20 (2008). 
3  
We do not assess Appellants’ remaining arguments as to likelihood of 
success on the merits and do not reach the remaining Hilton factors.  See Nken v. 
Holder, 556 U.S. 418, 435 (2009) (stating that the likelihood of success on the 
merits factor is one of the “most critical” and must be established before 
considering the last two stay factors); cf. California v. Azar, 911 F.3d 558, 575 (9th 
Cir. 2018) (“Likelihood of success on the merits is the most important factor; if a 
movant fails to meet this threshold inquiry, we need not consider the other factors.” 
(internal quotation marks omitted) (quoting Disney Enters., Inc. v. VidAngel, Inc., 
869 F.3d 848, 856 (9th Cir. 2017))). 
 
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supported by the record as it stands.4  Cf. City and County of San Francisco v. 
Trump, 897 F.3d 1225, 1243–45 (9th Cir. 2018).5   
An injunction must be “narrowly tailored to remedy the specific harm 
shown.”  Id. at 1244 (quoting Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 
1987)).  We have upheld nationwide injunctions where such breadth was necessary 
to remedy a plaintiff’s harm.  See, e.g., id.; California v. Azar, 911 F.3d 558, 582 
(9th Cir. 2018) (“Although there is no bar against nationwide relief in federal 
district court . . . such broad relief must be necessary to give prevailing parties the 
 
4  
The dissent, without citing any authority, argues that “it is [not] within a 
motions panel’s province to parse the record for error at this stage” and accuses us 
of “[going] beyond the recognized authority of a motions panel” by granting the 
motion for a stay pending appeal insofar as the injunction applies outside the Ninth 
Circuit.  We have two responses.  
 
First, we did not have to “parse” the record for error.  Appellants’ stay 
motion specifically argues that the district court erred in imposing a nationwide 
injunction.  Moreover, the three sentences that the district court provided to 
support the imposition of a nationwide injunction—none of which explains why it 
believed a nationwide injunction was necessary in this case—make clear that it 
failed to undertake the analysis necessary before granting such broad relief. 
 
Second, other motions panels of our court have reviewed the scope of 
injunctive relief granted by district courts.  See, e.g., E. Bay Sanctuary Covenant v. 
Trump, No. 18-17274, 2018 WL 8807133, at *24 (9th Cir. Dec. 7, 2018); Hawaii 
v. Trump, No. 17-17168, 2017 WL 5343014, at *1 (9th Cir. Nov. 13, 2017).  We 
think these decisions illustrate that it is indeed within our province—our duty, 
even—to review whether the district court abused its discretion in granting a 
nationwide injunction.   
5  
The dissent criticizes our reliance on Trump, 897 F.3d 1225, because the 
procedural posture in this case is different.  We recognize this difference as we cite 
Trump as an analogous case supporting our decision because, notwithstanding the 
different procedural posture, the issue in that case—whether the scope of the 
injunction was appropriate—is the same issue before us.  See id. at 1244–45. 
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relief to which they are entitled.” (internal quotation marks and alterations omitted) 
(quoting Bresgal, 843 F.2d at 1170–71)).  These are, however, “exceptional cases.”  
Trump, 897 F.3d at 1244.  To permit such broad injunctions as a general rule, 
without an articulated connection to a plaintiff’s particular harm, would 
unnecessarily “stymie novel legal challenges and robust debate” arising in different 
judicial districts.  Id.; see also Azar, 911 F.3d at 583 (“The Supreme Court has 
repeatedly emphasized that nationwide injunctions have detrimental consequences 
to the development of law and deprive appellate courts of a wider range of 
perspectives.”).   
Here, the district court failed to discuss whether a nationwide injunction is 
necessary to remedy Plaintiffs’ alleged harm.  Instead, in conclusory fashion, the 
district court stated that nationwide relief is warranted simply because district 
courts have the authority to impose such relief in some cases and because such 
relief has been applied in the immigration context.  The district court clearly erred 
by failing to consider whether nationwide relief is necessary to remedy Plaintiffs’ 
alleged harms.  And, based on the limited record before us, we do not believe a 
nationwide injunction is justified.   
Our dissenting colleague believes that a nationwide injunction is appropriate 
simply because this case presents a rule that applies nationwide.  That view, 
however, ignores our well-established rule that injunctive relief “must be tailored 
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to remedy the specific harm alleged.”  Lamb-Weston, Inc. v. McCain Foods, Ltd., 
941 F.2d 970, 974 (9th Cir. 1991) (citations omitted).  Indeed, were we to adopt 
the dissent’s view, a nationwide injunction would result any time an enjoined 
action has potential nationwide effects.  Such an approach would turn broad 
injunctions into the rule rather than the exception.  Under our case law, however, 
all injunctions—even ones involving national policies—must be “narrowly tailored 
to remedy the specific harm shown.”  Trump, 897 F.3d at 1244 (quoting Bresgal, 
843 F.2d at 1170).   
We agree with our dissenting colleague that “time does not permit a full 
exploration of the merits of the ‘nationwide’ issue.”  But whereas he believes that 
such a factor supports the granting of a nationwide injunction until a merits panel 
can address the case, we reach precisely the opposite conclusion.  “National 
injunctions interfere with good decisionmaking by the federal judiciary.”  Samuel 
L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. 
Rev. 417, 461 (2017).  They “deprive” other parties of “the right to litigate in other 
forums.”  Azar, 911 F.3d at 583.  Based on the briefing and limited record before 
us, and absent an explanation by the district court as to why a nationwide 
injunction is necessary to remedy Plaintiffs’ alleged harm in this case, we must 
grant the motion for stay pending appeal insofar as the injunction applies outside 
the Ninth Circuit.  
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Our dissenting colleague also argues that it is “perplexing” that the 
government’s failure to demonstrate a strong showing of likelihood of success on 
the merits “does not . . . require that a stay of the nationwide aspect of the 
injunction [] be denied.”  That contention misses the mark, however, by conflating 
the merits of the government’s position with district court’s authority to issue a 
nationwide injunction.  Whether Appellants have made a strong showing of 
likelihood of success on the merits entitling them to a stay of the preliminary 
injunction is a separate question from whether the scope of the injunction is 
appropriate.  In Azar, for example, we affirmed the preliminary injunction because, 
among other things, we found that the plaintiffs were likely to succeed on their 
claim that the rules were invalid.  911 F.3d at 575–81.  Despite our conclusion that 
the rules were likely invalid, however, we also determined that the injunction’s 
nationwide scope was not supported by the record.  Id. at 584–85.  Azar illustrates 
that, beyond examining the merits of a party’s arguments, a district court must 
separately analyze whether nationwide relief is “necessary to give prevailing 
parties the relief to which they are entitled” before issuing such an injunction.  Id. 
at 582 (quoting Bresgal, 843 F.2d at 1170–71).  
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Our approach—granting a more limited injunction—allows other litigants 
wishing to challenge the Rule to do so.  Indeed, several already have.6  Litigation 
over the Rule’s lawfulness will promote “the development of the law and the 
percolation of legal issues in the lower courts” and allow the Supreme Court, if it 
chooses to address the Rule, to do so “[with] the benefit of additional viewpoints 
from other lower federal courts and [with] a fully developed factual record.”  
Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. REV. 1065, 
1107–08 (2018).7 
In sum, our decision to partially grant the stay simply upholds the law of our 
circuit by ensuring that injunctive relief is properly tailored to the alleged harm.8  
While this appeal proceeds, the district court retains jurisdiction to further 
develop the record in support of a preliminary injunction extending beyond the 
 
6  
As Appellants point out, hours before the district court ruled here, a District 
of Columbia district court, presented with the same Rule, denied materially 
identical relief to organizations similar to the Plaintiffs here.  See CAIR v. Trump, 
No. 1:19-CV-02117-TJK, 2019 WL 3436501 (D.D.C. July 24, 2019). 
7  
Accord United States v. Mendoza, 464 U.S. 154, 160 (1984) (“[O]nly one 
final adjudication would deprive this Court of the benefit it receives from 
permitting several courts of appeals to explore a difficult question.”).   
8  
Contrary to the dissent’s position, the fact that injunctive relief may 
temporarily cause the Rule to be administered inconsistently in different locations 
is not a sound reason for imposing relief that is broader than necessary.  As we 
explain above, our law requires that injunctive relief be narrowly tailored to 
remedy the plaintiffs’ alleged harm, and it may only be broadened “if such breadth 
is necessary to give prevailing parties the relief to which they are entitled.”  
Bresgal, 843 F.2d at 1170–71 (emphasis added). 
 
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Ninth Circuit.  Cf. Trump, 897 F.3d at 1245 (“Because the record is insufficiently 
developed as to the question of the national scope of the injunction, we vacate the 
injunction to the extent that it applies outside California and remand to the district 
court for a more searching inquiry into whether this case justifies the breadth of the 
injunction imposed.”). 
 
The opening brief is due September 3, 2019; the answering brief is due 
October 1, 2019; and the optional reply is due within 21 days after service of the 
answering brief.  This case will be placed on a December 2019 argument calendar. 
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East Bay Sanctuary Covenant v. Barr, No. 19-16487
TASHIMA, Circuit Judge, concurring in part and dissenting in part:
I concur in the portion of the order denying the motion for stay pending
appeal [Dkt. 3] insofar as the injunction applies within the Ninth Circuit, but
dissent from the balance of the order. 
Acting as a motions panel, all we have before us is the government’s motion
for a stay.  I do not believe that it is within a motions panel’s province to parse the
record for error at this stage, which is what the majority does in concluding that
“the nationwide scope of the injunction is not supported by the record as it stands.” 
(Citation omitted.)  But the majority then goes beyond the recognized authority of
a motions panel by concluding that “[t]he  district court clearly erred by failing to
consider whether nationwide relief is necessary to remedy Plaintiffs’ alleged
harms,” and, on that basis “grant[s] the motion for stay pending appeal insofar as
the injunction applies outside the Ninth Circuit.”  It then, in the penultimate
paragraph of the Order, in effect,  remands the case to the district court for a partial
do-over:
While this appeal proceeds, the district court retains jurisdiction to
further develop the record in support of a preliminary injunction extending
beyond the Ninth Circuit.1 
FILED
AUG 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
1
The majority relies on City & County of San Francisco v. Trump, 897
F.3d 1225, 1245 (9th Cir. 2018), but the citation is completely inapposite.  That
(continued...)
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But vacating and remanding it to the district court for a more searching inquiry into
whether this case justifies the breadth of the injunction is indubitably an action 
within the province of a merits panel—not a motions panel.2
At the same time, the order places the merits briefing (of this appeal) on an
expedited schedule for placement “on a December 2019 argument calendar.”  What
issues are the parties expected to brief, assuming that parallel proceedings in the
district court are still ongoing?  And if the district court completes its second-look
remand proceedings within the next few weeks or months and issues a modified
injunction, or issues the same nationwide injunction, but one which is supported by
supplemental findings of fact, should the parties seek to file supplemental briefs on
the newly-raised and newly-decided issues in this appeal to the merits panel
assigned to this appeal, or should a new notice of appeal be filed, giving rise to a
1(...continued)
was an opinion by a merits panel charged with deciding the appeal, not a motions
panel charged with deciding a stay motion, and the merits panel did exactly what it
was charged with, i.e., it decided the appeal; it “AFFIRMED in part;VACATED in
pari; and REMANDED.”  Id.  We, as a motions panel, have no equivalent charge.
2
Because the issue has been decided, applying the clear error standard
of review, the injunction vacated and remanded to the district court, the merits
panel, presumably has been deprived of deciding this issue.  The majority’s
assertion, in footnote 2, that its action “does not bind the merits panel,” is an empty
promise.  Deciding the case on the merits, vacating and remanding the injunction is
not in accord with the dictates of Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008).
Page -2-
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new appeal?  These are some of the new and difficult questions raised by the
majority’s split-decision.
While time does not permit a full exploration of the merits of the
“nationwide” issue, some problems posed by the majority’s Ninth Circuit-only
injunction are apparent.  Perhaps, the district court did not make detailed findings
in support of a nationwide injunction because the need for one in the circumstances
of this case is obvious.  For starters, the joint interim final rule, “Asylum Eligibility
and Procedural Modifications,” will affect asylum applications across the breadth
of the southern border.  Should asylum law be administered differently in Texas
than in California?  These issues and problems illustrate why tinkering with the
merits on a limited stay motion record can be risky.  And it is why such issues are
reserved for the more deliberate examination that a merits panel can give them.
There is also a glaring inconsistency—a contradiction—in the majority’s
split-the-baby approach.  If, as the majority and I agree, the government’s failure to
meet the first Hilton v. Braunskill, 481 U.S. 770, 776 (1987), factor —likelihood of
success on the merits, because of its failure to comply with the APA—means that
its stay motion with respect to the preliminary injunction’s application within the
Ninth Circuit fails, it is perplexing to me why that failure does not infect the
balance of its stay motion and require that a stay of the nationwide aspect of the
Page -3-
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injunction also be denied.3  The majority, in its rush to address the merits of the
nationwide aspect of the injunction, simply elides this contradiction.
Because I would not peel off part of the preliminary injunction and remand
that portion to the district court, “[b]ecause the record is insufficiently developed
as to the question of the national scope of the injunction” (quoting San Francisco
v. Trump, 897 F.3d at 1245), while retaining jurisdiction over the remainder, I
dissent from the remand4 of the nationwide scope of the preliminary injunction to
the district court.
I would simply deny the stay motion.
3
The majority’s answer to this point is to state that “Whether
Appellants have made a strong showing of likelihood of success on the merits
entitling them to a stay of the preliminary injunction is a separate question from
whether the scope of the injunction is appropriate.”  But that doesn’t answer (or
even try to answer) my question of why the government’s failure to meet the
likelihood-of-success factor doesn’t doom its motion to stay the nationwide portion
of the injunction, as well as the California portion.
4
The Order does not use the word “remand,” but the majority does not
quarrel with the obvious inference from its statement that “the district court retains
jurisdiction to further develop the record in support of a preliminary injunction
extending beyond the Ninth Circuit,” is, in substance, a remand.
Page -4-
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