Amicus Brief of Public Citizen, Inc. — East Bay Sanctuary v. Trump (Dkt. 80-1)

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U.S. District Court for the Northern District of California · No. 4:18-cv-06810-JST · Doc. 80-1 · 2018-12-05 · Docket on CourtListener

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The brief of amicus curiae Public Citizen, Inc. in support of the plaintiffs' motion for preliminary injunction in East Bay Sanctuary Covenant v. Trump, No. 4:18-cv-06810-JST, in the U.S. District Court for the Northern District of California, filed December 5, 2018 as Document 80-1. The brief describes Public Citizen as a nonprofit consumer and public-policy advocacy organization and says it writes to address the notice-and-comment procedures bypassed in issuing the challenged rule. Its first section argues that notice-and-comment rulemaking under section 4 of the Administrative Procedure Act, 5 U.S.C. § 553, serves public participation, agency accountability and judicial review. Its second section argues that the exceptions invoked must be construed narrowly and that no exigency supplies good cause. The 11-page brief lists a hearing date of December 19, 2018.

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BRIEF OF AMICUS CURIAE PUBLIC CITIZEN, INC., IN SUPPORT OF PRELIMINARY INJUNCTION 
CASE NO. 18-CV-06810-JST
 
Jocelyn D. Larkin (SBN 110817) 
 
 
Rebecca Smullin (SBN 250274) 
Lindsay Nako (SBN 239090)  
 
 
PUBLIC CITIZEN LITIGATION GROUP 
IMPACT FUND 
 
 
 
 
1600 20th Street NW 
125 University Avenue, Suite 102 
 
 
Washington, DC 20009 
Berkeley, CA 94710  
 
 
 
Telephone: (202) 588-1000 
Telephone:  (510) 845-3473  
 
 
Fax: (202) 588-7795 
Fax:  (510) 845-3654  
 
 
 
Email: rsmullin@citizen.org 
Email:  jlarkin@impactfund.org 
 
Attorneys for Amicus Curiae Public Citizen, Inc. 
 
 
 
 
UNITED STATES DISTRICT COURT 
 
NORTHERN DISTRICT OF CALIFORNIA 
 
SAN FRANCISCO DIVISION 
 
EAST BAY SANCTUARY COVENANT,  
et al., 
 
Plaintiffs, 
 
v. 
 
DONALD J. TRUMP, et al., 
 
Defendants. 
 
 Case No. 18-cv-06810-JST 
 
 
BRIEF OF AMICUS CURIAE 
PUBLIC CITIZEN, INC., IN SUPPORT 
OF PLAINTIFFS’ MOTION FOR 
PRELIMINARY INJUNCTION 
 
Hearing: December 19, 2018, 9:30 a.m. 
 
 
 
 
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Page 1 of 10 
BRIEF OF AMICUS CURIAE PUBLIC CITIZEN, INC., IN SUPPORT OF PRELIMINARY INJUNCTION 
CASE NO. 18-CV-06810-JST
 
INTEREST OF AMICUS CURIAE 
Amicus curiae Public Citizen, Inc., is a nonprofit consumer and public-policy advocacy 
organization that appears on behalf of its members nationwide before Congress, administrative 
agencies, and courts. Public Citizen works on a wide range of issues, including enactment and 
promulgation of laws and regulations protecting consumers, workers, and the public. A great deal 
of Public Citizen’s work involves participation in federal rulemaking proceedings and in litigation 
seeking judicial review of agency actions in such proceedings, where Public Citizen appears as 
both a challenger of unlawful agency action and a defender of lawful exercises of agency 
authority. As a result, Public Citizen has considerable interest in and experience regarding the 
principles of administrative law that govern agency rulemaking, including those that determine 
whether an agency action is a rule whose promulgation requires compliance with the notice-and-
comment rulemaking procedures set forth in 5 U.S.C. § 553. Public Citizen submits this brief to 
assist the Court in appreciating the importance of the notice-and-comment procedures that were 
bypassed in the issuance of the rule challenged in this case and the consequent narrowness with 
which the statutory exceptions to notice-and-comment rulemaking must be applied. 
ARGUMENT 
I. 
Notice-and-comment rulemaking procedures serve vital public interests. 
The notice-and-comment rulemaking process set forth in section 4 of the Administrative 
Procedure Act (APA), 5 U.S.C. § 553, was one of the APA’s central innovations. Notice-and-
comment rulemaking under section 553 serves the vital function of allowing the public to 
participate in and inform agencies’ development of rules that carry the force of law. The Attorney 
General’s Manual on the Administrative Procedure  Act—the seminal 1947 publication in which 
the Department of Justice, which was instrumental in the APA’s development, expressed its 
understanding of the statute—puts it plainly: “[T]he purpose of section 4 is to guarantee to the 
public an opportunity to participate in the rulemaking process.” U.S. Dep’t of Justice, Attorney 
General’s Manual on the Administrative Procedure Act 26 (1947). Likewise, the courts have long 
recognized that “[s]ection 553 was enacted to give the public an opportunity to participate in the 
rule-making process.” Texaco, Inc. v. FPC, 412 F.2d 740 (3d Cir. 1969); accord, e.g., Batterton v. 
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Marshall, 648 F.2d 694, 704 (D.C. Cir. 1980). As the Ninth Circuit has stated, this policy favoring 
public participation in rulemaking “reflect[s] ‘a judgment by Congress that the public interest is 
served by a careful and open review of proposed administrative rules and regulations.’” Alcaraz v. 
Block, 746 F.2d 593, 610 (9th Cir. 1984) (quoting Philadelphia Citizens in Action v. Schweiker, 
669 F.2d 877, 881 (3d Cir. 1982)). 
Congress’s judgment in requiring notice and an opportunity for comment on proposed new 
rules reflects a number of critically important purposes. Notice-and-comment rulemaking helps to 
legitimize agency rulemaking by ensuring it conforms to norms of fairness and participatory 
democracy. With the rise of the administrative state and the increasing reliance by Congress on 
agencies to promulgate rules with the force of law pursuant to broad authority delegated by 
Congress, responsibility for critical decisions about the content of the laws that bind members of 
the public has shifted from elected legislators to unelected agency officials. Notice-and-comment 
rulemaking procedures give members of the public a role in determining how agency officials 
exercise rulemaking authority and thereby “reintroduce[] a representative public voice, thus 
ensuring ‘fairness to affected parties after governmental authority has been delegated to 
unrepresentative agencies.’” Alcaraz, 746 F.2d at 611 (quoting Batterton, 648 F.2d at 703).  
The openness inherent in notice-and-comment rulemaking is critical to the legitimacy of 
governmental decisionmaking in a representative democracy. “Put simply, the public is treated 
unfairly when a rulemaker hides his crucial decisions, or his reasons for them, or when he fails to 
give good faith attention to all the information and contending views relevant to the issues before 
him.” J. Skelly Wright, Courts and the Rulemaking Process: The Limits of Judicial Review, 59 
Cornell L. Rev. 375, 379 (1975). Thus, as the Supreme Court has put it, notice-and-comment 
rulemaking is “designed to assure fairness and mature consideration of rules of general 
application.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764 (1969); see also Weyerhaeuser Co. 
v. Costle, 590 F.2d 1011, 1027–28 (D.C. Cir. 1978) (“[I]f the Agency, in carrying out its 
‘essentially legislative task,’ has infused the administrative process with the degree of openness, 
explanation, and participatory democracy required by the APA, it will thereby have ‘negate(d) the 
dangers of arbitrariness and irrationality in the formulation of rules.’”). 
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In addition, the notice-and-comment process plays an essential role in enhancing the 
quality of rulemaking by providing agencies with important information, which in turn helps 
ensure that they fulfill congressional aims and conform to substantive limits Congress has placed 
on their authority. Agency rulemaking authority is derived from Congress. It must therefore 
comply with statutory mandates and represent a rational and non-arbitrary exercise of any 
discretion Congress has granted the agency. See 5 U.S.C. § 706(2)(A). To meet those standards, an 
agency engaged in rulemaking “must examine the relevant data and articulate a satisfactory 
explanation for its action including a ‘rational connection between the facts found and the choice 
made.’” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) 
(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). An agency fails to 
carry out this obligation if it “entirely fail[s] to consider an important aspect of the problem.” Id.  
Thus, the essential touchstone of proper rulemaking, in common with other agency action, 
is that it reflects rational “consideration of the relevant factors.” Citizens to Preserve Overton 
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). And in order to consider all “relevant factors,” the 
agency must know what they are. Notice-and-comment rulemaking assists agencies in identifying 
the considerations, legal and factual, that are relevant to their decisions, and in reasonably 
weighing them. As the Ninth Circuit has long recognized, a key purpose of notice-and-comment 
rulemaking is to “create[] a pre-publication dialogue which allows the agency to educate itself on 
the full range of interests the rule affects.” Alcaraz, 746 F.2d at 611; see also Pac. Coast European 
Conf. v. United States, 350 F.2d 197, 205 (1965) (“[T]he purpose of [notice-and-comment 
rulemaking] is to permit the agency to educate itself.”). Notice-and-comment rulemaking is thus 
“a primary method of assuring that an agency’s decisions will be informed and responsive.” State 
of N.J. Dep’t of Envtl. Protection v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980). 
Beyond providing agencies with necessary input, notice-and-comment rulemaking 
increases agency accountability for the lawfulness and rationality of substantive rulemaking 
outcomes. The requirements that an agency consider relevant factors and provide a “concise 
general statement of [a rule’s] basis and purpose,” 5 U.S.C. § 553(c), carry with them an 
obligation to “consider and respond to significant comments received during the period for public 
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comment.” Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015). Indeed, “the 
opportunity to comment is meaningless unless the agency responds to significant points raised by 
the public.” ACLU v. FCC, 823 F.2d 1554, 1581 (1987) (citations omitted). The obligation to 
respond to significant comments deters arbitrary decisionmaking by ensuring that the agency has 
genuinely taken into account factors relevant to its decisions. Conversely, an agency’s failure to 
“respond to ‘significant’ comments, i.e., those which raise relevant points and which, if adopted, 
would require a change in the agency’s proposed rule,” may “reveal[] that the agency’s decision 
was not based on consideration of the relevant factors.” Am. Mining Cong. v. EPA, 965 F.2d 759, 
771 (9th Cir. 1992) (citing Home Box Office v. FCC, 567 F.2d 9, 35 & n.58 (D.C. Cir. 1977), and 
Thompson v. Clark, 741 F.2d 401, 409 (D.C. Cir.1984)); see, e.g., State Farm, 463 U.S. at 50 
(holding that agency acted arbitrarily and capriciously when it “submitted no reasons at all” for 
rejecting a proposed alternative to its rule).  
The requirement that agencies address significant comments also facilitates judicial review 
of the lawfulness of agency action by forcing agency decisionmakers to commit to and articulate 
the legal, factual, and policy rationales for rules. Because the lawfulness of any particular action 
depends solely on the reasons for it articulated by the agency at the time it takes the action, see 
SEC v. Chenery Corp., 318 U.S. 80, 94–95 (1943), the agency’s crystallization of its position in its 
response to comments provides the necessary foundation for judicial review by ensuring that the 
agency will identify and state the “legal and factual justifications for the court to review.” Robert 
Knowles, National Security Rulemaking, 41 Fla. St. U. L. Rev. 883, 890 (2014); see also State 
Farm, 463 U.S. at 42. The agency’s articulation of its views in the rulemaking process can also 
provide the basis for a court’s determination whether the agency’s decision is based on a 
construction of governing statutes that is entitled to deference under the principles of Chevron, 
U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). See United States v. Mead Corp., 533 U.S. 218, 230–
31 (2001); Anna Jacques Hosp. v. Burwell, 797 F.3d 1155, 1166 (D.C. Cir. 2015). 
At bottom, the substance of an agency’s response to the comments and information it 
receives during the notice-and-comment process is the ultimate measure of whether the agency has 
acted lawfully. The legal basis asserted by an agency in response to comments challenging its 
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authority to take an action determines whether its action is “in accordance with law,” as required 
by 5 U.S.C. § 706(2)(A). See, e.g., Transitional Hosps. Corp. of La., Inc. v. Shalala, 222 F.3d 
1019, 1029 (D.C. Cir. 2000). And where the law gives an agency regulatory discretion, the 
agency’s response to comments reveals whether it has fulfilled its obligation to “cogently explain 
why it has exercised its discretion in a given manner.” State Farm, 463 U.S. at 48. An 
inadequately reasoned or supported response to comments may reveal that “the agency has failed 
to offer the rational connection between facts and judgment required to pass muster under the 
arbitrary and capricious standard.” Id. at 56. 
Courts have recognized the critical importance of notice-and-comment rulemaking in a 
variety of doctrines that facilitate enforcement of the requirements of section 553. For example, an 
agency generally cannot seek to evade notice-and-comment by issuing an “interim” rule first and 
seeking comment later, as the agency did here: “It is antithetical to the structure and purpose of the 
APA for an agency to implement a rule first, and then seek comment later.” Paulsen v. Daniels, 
413 F.3d 999, 1005 (9th Cir. 2005). Moreover, courts addressing the merits of claimed notice-and-
comment violations recognize that “utter failure to comply with notice and comment cannot be 
considered harmless if there is any uncertainty at all as to the effect of that failure.” Sugar Cane 
Growers Co-op of Fla. v. Veneman, 289 F.3d 89, 96 (D.C. Cir. 2002). As the Ninth Circuit has put 
it, an agency that has failed to comply with section 553 “can rely on harmless error only ‘when a 
mistake of the administrative body is one that clearly had no bearing on the procedure used or the 
substance of decision reached.’” Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir. 1982) 
(citations omitted). And for much the same reason, a litigant’s standing to challenge a rule based 
on an agency’s failure to engage in notice-and-comment rulemaking does not depend on a 
demonstration that the agency would have promulgated a different rule had it complied with the 
statute; rather, “[a]ll that is necessary is to show that the procedural step was connected to the 
substantive result” that affects the challenger’s concrete interests. Sugar Cane, 289 F.3d at 94–95. 
“If a party claiming the deprivation of a right to notice-and-comment rulemaking under the APA 
had to show that its comment would have altered the agency’s rule, section 553 would be a dead 
letter.” Id.  
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II. 
The exceptions to notice-and-comment invoked here are narrowly construed. 
In light of the importance of section 553’s requirements and the congressional objectives 
underlying them, courts have uniformly recognized that they must narrowly construe the statutory 
exceptions to the notice-and-comment requirements: 
Congress was concerned that the exceptions to section 553, though necessary, 
might be used too broadly. The Senate noted that the courts have a “duty ... to 
prevent avoidance of the requirements of the [Act] by any manner or form of 
indirection.” S. Doc. No. 248, 79th Cong., 2d Sess. 217 (1946); see American Bus 
Ass’n v. United States, 627 F.2d 525, 528 (D.C. Cir. 1980) (“the legislative history 
of the section is scattered with warnings that various of the exceptions are not to be 
used to escape the requirements of section 553”). We have stated that “[t]he 
exceptions to section 553 will be ‘narrowly construed and only reluctantly 
countenanced.’” Alcaraz v. Block, 746 F.2d [at] 612 … (citations omitted). 
San Diego Air Sports Ctr., Inc. v. FAA, 887 F.2d 966, 969 (9th Cir. 1989); see also, e.g., Texas v. 
United States, 809 F.3d 134, 171 (5th Cir. 2015), aff’d by equally divided court, 136 S. Ct. 2271 
(2016); Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012); Zhang v. Slattery, 55 F.3d 
732, 744 (2d Cir. 1995); U.S. Steel Corp. v. EPA, 649 F.2d 572 (8th Cir. 1981); N.J. Dep’t of 
Envtl. Protection, 626 F.2d at 1045; Am. Iron & Steel Inst. v. EPA, 568 F.2d 284, 292 (3d Cir. 
1977).  
Moreover, an agency’s determination that a rule falls within an exception to section 553 is 
entitled to no judicial deference because “an agency has no interpretive authority over the APA.” 
Sorenson Comm’c’ns. Inc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014). Courts must make the 
“meticulous and demanding” determination whether an exception applies de novo. Id.; see also 
Independent Guard Ass’n of Nev. Local No. 1 v. O’Leary, 57 F.3d 766, 769 (9th Cir. 1995). 
These principles apply fully to both of the exceptions to notice-and-comment procedures 
claimed here: the exception for “military or foreign affairs function[s]” in 5 U.S.C. § 553(a)(1), 
and the “good cause” exception applicable where the agency finds that “notice and public 
procedure … are impracticable, unnecessary, or contrary to the public interest,” id. § 553(b)(B).  
A. 
The foreign affairs exception is inapplicable. 
The Ninth Circuit has squarely held that the “military or foreign affairs function” exception 
of section 553(a)(1) “must be narrowly construed.” O’Leary, 57 F.3d at 769. The rule of narrow 
construction reflects Congress’s intent that the exception is applicable “only ‘to the extent’ that the 
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excepted subjects are directly involved.” Id. (quoting S. Doc. No. 248, 79th Cong., 2d Sess. 199 
(1946) (emphasis added)). Consistent with this view, the Attorney General’s Manual emphasized 
Congress’s stated intent to limit the “foreign affairs function[s]” exempted by section 553(a)(1): 
As to the meaning of “foreign affairs function”, both the Senate and House reports 
state: “The phrase ‘foreign affairs functions,’ … is not to be loosely interpreted to 
mean any function extending beyond the borders of the United States but only 
those ‘affairs’ which so affect relations with other governments that, for example, 
public rule making provisions would clearly provoke definitely undesirable 
international consequences.” 
Manual, at 26 (citation omitted). 
Here, the assertion that a regulation determining rights of noncitizens to apply for and 
obtain political asylum falls within the foreign affairs exception is incompatible with the principle 
that the exception must be narrowly construed. The Ninth Circuit has cautioned that “[t]he foreign 
affairs exception would become distended if applied to [immigration] actions generally, even 
though immigration matters typically implicate foreign affairs,” and, thus, “[f]or the exception to 
apply, the public rulemaking provisions should provoke definitely undesirable international 
consequences.” Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980) (citing Hou Ching 
Chow v. Attorney General, 263 F. Supp. 1288 (D.D.C. 1973), and S. Rep. No. 79-762, at 13 
(1945)). Tellingly, the federal government has not invoked the foreign affairs exception in other 
cases where notice-and-comment requirements have been held applicable to regulations affecting 
the eligibility of noncitizens to obtain relief against removal. See Texas v. United States, 809 F.3d 
at 170–78. And the Supreme Court long ago held in Wong Yang Sung v. McGrath, 339 U.S. 33, 51 
(1950), that section 5 of the APA, 5 U.S.C. § 554, which contains an exception for “military and 
foreign affairs functions” identical to the one in section 553, see 5 U.S.C. 554(a)(4), applied to 
deportation proceedings for noncitizens. See Hou Ching Chow, 362 F. Supp. at 1290–91 & nn.5–
8. Again, there was no hint in Wong Yang Sung, decided in the immediate wake of the APA’s 
enactment, that the foreign affairs exception might apply. 
Accordingly, the Ninth Circuit and other courts of appeals have held that regulations 
affecting rights of immigrants fall within the foreign affairs exception only under narrow 
circumstances, such as cases in which the regulations implement U.S. foreign policy toward 
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particular countries, and notice-and-comment proceedings might threaten to reveal sensitive 
information underlying that policy, impair relations with the targeted countries, or pose an 
imminent threat to national security. See Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008) 
(holding that regulations requiring registration of noncitizens from specified countries following 
the September 11 attacks did not require notice and comment); see also, e.g., Yassini, 618 F.2d at 
1360–61 (holding that immigration regulations specifically implementing U.S. policy toward Iran 
following the takeover of the U.S. Embassy in Tehran did not require notice and comment).  
By contrast, where regulations affect the rights of immigrants who have entered the United 
States, and neither implement U.S. foreign policy directed toward particular countries nor 
otherwise threaten “definitely undesirable international consequences,” the foreign affairs 
exception does not apply. Zhang, 55 F.3d at 744 (quoting Yassini, 618 F.2d at 1360 n.4); Jean v. 
Nelson, 711 F.2d 1455, 1477–78 (11th Cir. 1983), vacated and rev’d on other grounds, 727 F.2d 
957 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846 (1985). Zhang concerned a rule regarding 
whether fear of being subjected to Chinese family planning policies could serve as a basis for a 
claim of asylum; Jean considered a rule regarding detention of Haitian refugees pending 
determination of their refugee status. In both cases, the courts held that application of the foreign 
affairs exception would stretch the exception beyond its limits because of the absence of any 
reason to believe that “undesirable international consequences … would result if rulemaking were 
employed.” Zhang, 55 F.3d at 745; Jean, 711 F.2d at 1478. 
Here, as in Zhang and Jean, the regulation at issue concerns the rights of persons within 
this country and is not aimed at implementing a policy directed at the governments of their 
countries of origin. Indeed, the case for application of the exception here is even more tenuous 
than in those cases because, unlike the regulations in Zhang and Jean, the rule here does not even 
involve immigrants from or policies specific to particular countries. Moreover, although the rule 
relates to immigrants who have crossed our border with Mexico, there is no reasonable basis for 
believing that it involves U.S. foreign policy towards Mexico, as its impact is on the rights of 
immigrants who are present in this country, not on matters directly concerning our relationship 
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with Mexico. Thus, under a properly narrow construction of the foreign affairs exception, the 
exception does not extend to the regulation at issue. 
B. 
The good cause exception is inapplicable here. 
The “good cause” exception is similarly subject to a narrow construction that excludes the 
regulation at issue. That exception excuses agencies from the obligation to engage in notice-and-
comment proceedings where those procedures would be “impracticable” or “contrary to the public 
interest.” 5 U.S.C. § 553(b)(B). When it crafted that exception, Congress explained that the 
exception is not intended to go beyond genuinely exigent circumstances:   
The exemption of situations of emergency or necessity is not an “escape  
clause” in the sense that any agency has discretion to disregard [the  
APA’s] terms or the facts. A true and supported or supportable finding of  
necessity or emergency must be made and published. “Impracticable”  
means a situation in which the due and required execution of the agency  
functions would be unavoidably prevented by its undertaking public rule- 
making proceedings. 
S. Doc. No. 248, 79th Cong., 2d Sess. 200 (1946), quoted in O’Leary, 57 F.3d at 769.  
A host of judicial decisions in the Ninth Circuit and other courts of appeals reflect the 
same narrow reading: “The good cause exception is essentially an emergency procedure,” 
Buschmann, 676 F.2d at 357, and it “should be invoked only in emergency situations when delay 
would do real harm,” Action on Smoking & Health v. CAB, 713 F.2d 795, 800 (D.C. Cir. 1983). 
See also, e.g., United States v. Ross, 848 F.3d 1129, 1132 (D.C. Cir. 2017); United States v. 
Valverde, 628 F.3d 1159, 1164–65 (9th Cir. 2010); San Diego Air Sports, 887 F.2d at 969; 
Alcaraz, 746 F.2d at 612; Philadelphia Citizens, 669 F.2d at 882. 
The exigent circumstances justifying invocation of the exception may be present when 
there is an imminent risk of harm to members of the public, see, e.g., Hawaii Helicopter 
Operators Ass’n v. FAA, 51 F.3d 212 (9th Cir. 1995), in the unusual circumstances where the 
notice-and-comment procedures themselves would be self-defeating or have adverse 
consequences, see Buschmann, 676 F.2d at 357, or in the equally unusual situation where 
engaging in notice-and-comment would “unavoidably prevent[]” the agency from “the due and 
required execution of agency functions,” O’Leary, 57 F.3d at 769. By contrast, “speculative” and 
unsupported claims of harm—even very serious harm—not genuinely attributable to the notice-
Case 4:18-cv-06810-JST   Document 80-1   Filed 12/05/18   Page 10 of 11

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Page 10 of 10 
BRIEF OF AMICUS CURIAE PUBLIC CITIZEN, INC., IN SUPPORT OF PRELIMINARY INJUNCTION 
CASE NO. 18-CV-06810-JST
 
and-comment process do not suffice. Valverde, 628 F.3d at 1167 (speculative risks associated with 
sex offenders did not justify failure to engage in notice-and-comment rulemaking); see also San 
Diego Air Sports, 887 F,2d at 970 (unsubstantiated risk of injury was not good cause). 
Here, no exigency exists sufficient to justify forgoing notice-and-comment rulemaking 
under the appropriately narrow reading of the good cause exception. There can be no serious 
suggestion that immigration authorities will be impeded in carrying out the basic functions of their 
agencies if, pending the completion of notice-and-comment rulemaking, they continue to follow 
longstanding statutory requirements regarding the ability of noncitizens present in the United 
States to apply for and receive asylum. And no alleged “emergency” on the southern border 
justifies bypassing notice-and-comment here. Even assuming that the arrival of a “caravan” of 
immigrants constitutes a border-security emergency as opposed to a humanitarian crisis, the 
challenged regulation does not address border security or prevent unlawful entry. Rather, it 
concerns the rights of noncitizens seeking asylum within the United States, and that subject has no 
direct connection to any threats of imminent harm at the border. At most, instituting the rule 
without notice-and-comment (even assuming the rule were otherwise lawful) would marginally 
reduce the number of asylum applications that would otherwise be received during the time notice-
and-comment proceedings would require. Such a minor matter of alleged bureaucratic burden is 
not the kind of exigency to which the narrow good cause exception is addressed. 
CONCLUSION 
For the foregoing reasons, the Court should grant the motion for preliminary injunction. 
 
Respectfully submitted, 
 
 
/s/ Jocelyn D. Larkin 
 
 
 
Rebecca Smullin (SBN 250274) 
Jocelyn D. Larkin (SBN 110817) 
PUBLIC CITIZEN LITIGATION GROUP 
Lindsay Nako (SBN 239090) 
1600 20th Street NW 
IMPACT FUND 
Washington, DC 20009 
125 University Avenue, Suite 102 
Telephone: (202) 588-1000 
Berkeley, CA 94710 
Fax: (202) 588-7795 
Telephone:  (510) 845-3473 
Email: rsmullin@citizen.org 
Fax:  (510) 845-3654 
 
Email:  jlarkin@impactfund.org 
 
Counsel for Amicus Curiae Public Citizen, Inc. 
 
DATED: December 5, 2018 
Case 4:18-cv-06810-JST   Document 80-1   Filed 12/05/18   Page 11 of 11

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