Ninth Circuit Order Placing Appeal in Abeyance — East Bay Sanctuary v. Trump

Record facts

N.D. Cal. · No. 4:18-cv-06810-JST · Doc. 198 · 2024-02-21 · Docket on CourtListener

Full text

FOR PUBLICATION 
UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 
EAST BAY SANCTUARY COVENANT; et 
al.,  
Plaintiffs-Appellees, 
  v. 
JOSEPH R. BIDEN, President of the United 
States; et al.,  
Defendants-Appellants. 
No. 
23-16032 
D.C. No. 4:18-cv-06810-JST
Northern District of California,
Oakland
ORDER 
Before:  W. FLETCHER, PAEZ, and VANDYKE, Circuit Judges. 
Order by Judges W. FLETCHER and PAEZ; Dissent by Judge VANDYKE. 
The parties in this appeal have filed a Joint Motion to Place Appeal in 
Abeyance (Dkt. No. 83) pending settlement negotiations in this case, and a related 
case, M.A. v. Mayorkas, No. 1:23-cv-1843 (D.D.C.).  The motion is GRANTED as 
follows: 
This appeal is placed in abeyance pending the parties’ settlement 
discussions.  The parties shall file a joint status report 60 days after the entry of this 
order and every 60 days thereafter.  If the parties settle this case or settlement 
discussions fail, the parties shall promptly notify the court.  Submission of this case 
is vacated pending further court order. 
FILED
FEB 21 2024
MOLLY C. DWYER, CLERK 
U.S. COURT OF APPEALS 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 1 of 13

1 
East Bay Sanctuary Covenant v. Biden, No. 23-16032 
VANDYKE, Circuit Judge, dissenting: 
The current administration promulgated the rule challenged in this case to help 
manage the “historic surge in migration” that followed the end of the Title 42 order 
and to relieve “significant strain on DHS’s operational capacity at the border.”  See 
88 Fed. Reg. 31314 (May 16, 2023) (codified at 8 C.F.R. §§ 208.33, 1208.33).  After 
the plaintiffs brought this case to enjoin and vacate the rule, the federal government 
spent the better part of a year vigorously defending the rule’s critical necessity before 
the district court and in this court—all because, in the government’s words, “any 
interruption in the rule’s implementation will result in another surge in migration 
that will significantly disrupt and tax DHS operations.”  Indeed, only a few months 
ago, the government insisted that “[i]f the Rule is unavailable, [it] expects ‘a surge 
… that could match—or even exceed—the levels seen in the days leading up to the 
end of’ the Title 42 order,” and that “the negative consequences of such an increase 
in migration—for the government, for migrants, and for the public—would be even 
greater than [before].”  The executive even went so far as to urge that if our court 
were to rule against it in this appeal, we should nevertheless stay our decision 
pending the filing of a petition for relief from the Supreme Court to avoid the 
disastrous consequences of the rule not being in force even for a short period of time.  
And while the outcome of this case in the lower courts (including this one) was 
anything but certain given the mess we previously made of our precedent during our 
FILED
FEB 21 2024
MOLLY C. DWYER, CLERK 
U.S. COURT OF APPEALS 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 2 of 13

2 
court’s immigration wars with the prior presidential administration, the government 
has to know the Supreme Court would likely not only reach the correct result in this 
case, but in doing so rectify some of our court’s erroneous precedent.  Any adverse 
decisions from the Northern District of California and the Ninth Circuit would be 
mere temporary speed bumps on the way to eventual, likely inevitable, vindication 
of the rule from the Supreme Court. 
Taking the government at its word about the pressing need for this crucial rule 
to remain in effect and be enforced, our court granted a stay of the district court’s 
decision enjoining the government’s rule.  We heard oral argument and are now 
poised to render our decision.  Then suddenly, out of the blue, the parties come to us 
hand-in-hand, jointly asking us to hold off making a decision while they “engage[] 
in discussions regarding the Rule’s implementation and whether a settlement could 
eliminate the need for further litigation.”  For months, the rule was so important that 
“any interruption” in its implementation, even for a short period of time, would 
incapacitate the executive’s border response.  This panel made decisions based on 
those representations.  Now, the government implies the rule isn’t so important after 
all.  Indeed, the government is now “engaged in discussions” that could result in the 
rule going away.  What? 
The administration’s abrupt about-face makes no sense as a legal matter.  
Either it previously lied to this court by exaggerating the threat posed by vacating 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 3 of 13

3 
the rule, or it is now hiding the real reason it wants to hold this case in abeyance.  
Given its success thus far in defending a rule it has consistently characterized as 
critical to its control of the border, and the fact that it has to realize its odds of success 
in this case can only improve as it works its way vertically through the federal court 
system, the government’s sudden and severe change in position looks a lot like a 
purely politically motivated attempt to throw the game at the last minute.  At the 
very least it looks like the administration and its frenemies on the other side of this 
case are colluding to avoid playing their politically fraught game during an election 
year. 
This court is a legal institution, not a political one.  Thus it must insist that 
parties provide adequate legal justifications for the relief they seek, whatever their 
underlying political motivations may be.  While I am of course agnostic as to the 
sufficiency of the government’s political reasons for suddenly reversing course, it 
has provided no coherent legal reason why it has suddenly changed its position about 
the importance of the continued enforcement of the rule challenged in this case, so I 
would not grant the stay now requested. 
While we often hold cases in abeyance during settlement negotiations, the 
government has not given us any real reason to do so here.  The vague reasons the 
parties have provided for a stay of litigation are sharply at odds with the reasons the 
government gave us just a few short months ago for granting a stay of the district 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 4 of 13

4 
court’s preliminary injunction.  The purported reason for halting this case is that 
“there are currently two pending cases raising overlapping claims relating to the Rule 
and its implementation that have been brought by some similarly situated plaintiffs 
represented by overlapping counsel.”  This sounds more like a normal day in the life 
of a DOJ litigator than a compelling reason to stay a case.  Having multiple cases 
about the same issue in multiple courts is the norm for our federal government, so it 
can’t be a real reason to slam the brakes on a case.  And it’s not as if there is already 
a decision from a lower court in another circuit awaiting a helpful verdict on appeal. 
There are simply two similar proceedings, and since the present one has progressed 
farther along than the one in the District Court for the District of Columbia, it makes 
little sense to think that proceeding is a reason to stay this one.  The federal 
government routinely litigates similar issues in multiple courts, even when different 
circuits reach different conclusions. 
Aside from the non-reason provided by the parties, it is difficult to think of 
any other legal reason why they would seek to hold this case in abeyance.  The 
parties raise the prospect of settlement but have provided no reason why either party 
would actually want to settle at this point given what the parties have previously told 
this court.  Any effect of the government’s only loss at this point has been reversed 
by winning a stay from this court of the district court’s vacatur.  Based on the 
issuance of that stay, the only reasonable conclusion was that a majority of the panel 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 5 of 13

5 
in this case thought the government was likely to prevail on the merits.  See Nken v. 
Holder, 556 U.S. 418, 425–26 (2009) (stating that one of the relevant factors in 
deciding to grant a stay is “whether the stay applicant has made a strong showing 
that he is likely to succeed on the merits” (emphasis added)).  Even assuming the 
government were to lose before this court on the merits, which would make our prior 
decision to stay the district court’s vacatur all the more perplexing, it is clear enough 
that the government is destined to prevail before the Supreme Court—whether on an 
emergency or permanent basis.  Indeed, the government has already strongly implied 
that it planned to do exactly that if it lost before this court.   
Given all of this, it’s hard to avoid any impression other than that the 
administration is snatching defeat from the jaws of victory—purposely avoiding an 
ultimate win that would eventually come later this year, whether from this court or 
from the Supreme Court. 
It is also unclear what a settlement would even look like in this case.  In its 
briefing, the government has repeatedly stressed the vital importance of this rule in 
fending off the border crisis.  As the government explained, “[w]ithout the Rule, the 
expected increase in border encounters threatened to overwhelm the Departments’ 
‘ability to effectively process, detain, and remove, as appropriate, the migrants 
encountered,’ with attendant increases in the number of migrants unlawfully present 
in the country, strains on government operations and resources, health and safety 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 6 of 13

6 
concerns for migrants at overcrowded processing facilities, and impacts on local 
communities along the southwest border.”  In the days before Title 42 ended, “‘DHS 
saw a historic surge in migration’ … that ‘culminated with the highest recorded 
encounter levels’ in history and ‘placed significant strain on DHS’s operational 
capacity at the border.’”  “Encounters between ports of entry nearly doubled in the 
month before May 11, increasing ‘from an average of approximately 4,900 per day’ 
to ‘approximately 9,500 per day,’ including even higher numbers in the final few 
days.”  “Between May 8 and 11, the Border Patrol’s ‘daily in-custody average’ was 
approximately 50% above ‘its holding capacity.’” According to the government, 
“that overcrowding, combined with an increased average time in custody because of 
the many noncitizens who CBP needed to process, generated serious ‘health and 
safety risks to noncitizens, government personnel, and contract support staff.’”   
“If the Rule is unavailable, the government expects ‘a surge in border 
crossings that could match—or even exceed—the levels seen in the days leading up 
to the end of’ the Title 42 order.  The government thus ‘anticipates that any 
interruption in the rule’s implementation will result in another surge in migration 
that will significantly disrupt and tax DHS operations.’”  Given the criticality of this 
potential disruption in border operations, the government has repeatedly requested 
that “if the Court affirms in whole or in part, it leave the stay pending appeal in place 
pending the filing and disposition of any petition for further review.”  In other words: 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 7 of 13

7 
if you’re going to rule against us, please please please make sure we have the 
opportunity to get a stay from the Supreme Court since this rule is so important.  
Unless the government has grossly misrepresented the importance of its rule 
and the ramifications of vacating it in its prior filings before this court, it seems that 
any prospect of settling this case by recission of the rule would be a nonstarter.  
Indeed, the government has been very careful not to suggest that in its intentionally 
vaguely worded joint motion to hold this case in abeyance.   
And it would make little sense for the plaintiffs—who are public interest 
groups insisting they are harmed by the mere existence of the rule and that the rule 
is contrary to law—to accept anything less than rescission of the rule.  It is therefore 
difficult to see what kind of acceptable middle ground the two parties could reach 
that would satisfy the plaintiffs while allowing the government to keep enforcing the 
rule. 
The standardless timeline of the jointly requested abeyance is further evidence 
that this seems to be nothing more than a collusive effort to postpone resolution of 
this case until a more politically palatable time.  The parties have given no indication 
how long they expect the abeyance period to last, saying only that they will provide 
status reports every 60 days.  Should the court expect to sit on this case forever?  
Until after election day in November?  Until ballot counting is finished long after 
that election?  January 6, 2025?  Given that the parties have provided no real reason 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 8 of 13

8 
why they are asking to abruptly halt this appeal, we have no idea when they plan to 
start it up again.  My guess is that sometime after November would fit their 
“settlement negotiations” needs nicely. 
Even if the government’s recent explanations cannot be taken at face value, 
we do know a few things for certain.  This administration went to considerable 
lengths to both promulgate this rule and vigorously defend it.  Yet now, a mere nine 
months before the general election, and in the face of an immigration crisis that has 
produced one of the most intense showdowns between state and federal government 
in recent memory, the administration is requesting something that is completely 
inconsistent with its previous actions and representations to the court.  So why?  As 
I see it, there are several interrelated possibilities, all of which are wholly political—
not legal—and thus do not merit the relief requested. 
The administration may want to avoid going before the Supreme Court to 
defend a rule that is obviously unpopular with its base during a presidential election 
year in which immigration figures to be an important issue.  The rule puts the 
administration in a political pickle.  It is both politically unpopular with some of its 
own constituency, and, as the government has vigorously argued, deeply necessary 
to prevent a worsening of the border crisis, which is perceived as one of this 
administration’s political vulnerabilities.  An abeyance splits the baby, temporarily 
ensuring that an important tool in its immigration-enforcement toolbox remains in 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 9 of 13

9 
1 See, e.g., Statement from President Joe Biden On the Bipartisan Senate Border 
Security 
Negotiations, 
The 
White 
House 
(Jan. 
26, 
2024), 
https://www.whitehouse.gov/briefing-room/statements-
releases/2024/01/26/statement-from-president-joe-biden-on-the-bipartisan-senate-
border-security-negotiations (President Joe Biden calling the border “broken”); 
Reese Gorman, Fetterman continues his feud with progressive Democrats and says 
they 
‘left’ 
him, 
Washington 
Examiner 
(Jan. 
20, 
2024), 
https://www.washingtonexaminer.com/news/2808370/fetterman-continues-his-
feud-with-progressive-democrats-and-says-they-left-him/ (Pennsylvania Senator 
John Fetterman saying “There is a crisis ….  We have a crisis at our border, and it 
can’t be controversial that we should have a secure border.”); Greg Abbott 
(@GregAbott_TX), 
Twitter 
(Sep. 
20, 
2023, 
4:34 
PM), 
https://twitter.com/GregAbbott_TX/status/1704640256429985863 (describing the 
border crisis as “an invasion”); ‘Secure our border along the southwest,’ Senator 
Cortez Masto speaks on protection issues, News 3 Las Vegas (Jan. 24, 2024) 
(Nevada Senator Catherine Cortez Masto calling to “secure our border along the 
southwest”). 
place, while postponing any potential Supreme Court fight about that tool until after 
the election.  This temporary resolution to the political problems presented by this 
litigation affords the administration plausible deniability it can pitch to its base while 
it nevertheless continues to enforce the rule to stave off a worse crisis at the southern 
border. 
The government might also simply be trying to avoid another immigration 
loss in court, the optics of which could be particularly devastating during the current 
immigration crisis.  Americans of all political persuasions are increasingly focused 
on—and worried about—the situation on our southern border.1  Placing these 
proceedings in abeyance avoids the possibility of a loss before the Ninth Circuit that 
could potentially exacerbate the issues at the border in the months leading up to the 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 10 of 13

10 
election—a loss made even more damaging given that it would be meted out by a 
panel comprised primarily of Democratic appointees, no less.  The CNN headline 
practically writes itself: “Biden Immigration Enforcement Policy Struck Down by 
Two Clinton Appointees.” 
Relatedly, the administration may be seeking to create policy that resonates 
with its base while blaming the practical results of that policy on the courts.  Such a 
strategy would be remarkably simple for the government to enact.  Step one: Stay 
proceedings before a final vindication of its position.  Step two: Settle, agree not to 
enforce the rule, and blame the courts for tying its hands.  If this is truly the 
government’s plan, then it is for all practical purposes seeking to repeal the rule 
without the need for notice and comment, and its pro forma defense of the rule has 
been rendered nothing more than a half-measure—an illusion.  It could take credit 
for creating an important rule and defending it with one hand, and then, by colluding 
with the plaintiffs, it can set the policy it actually wants with the other, all while 
publicly blaming the result—cloaked as it is in the language of a judicial 
“settlement”—on the courts.  This would be even worse than “rulemaking-by-
collective-acquiescence.”  Arizona v. City & County of San Francisco, 596 U.S. 763, 
765–66 (2022) (Roberts, C.J., concurring).  It’s “rulemaking by political settlement” 
while dishonestly shifting the blame to the non-political branch of government. 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 11 of 13

11 
Likewise, the executive may once again be trying to insulate bad Ninth Circuit 
caselaw from Supreme Court review.  As I and others have previously written, our 
Easy Bay precedents are clearly wrong.  See E. Bay Sanctuary Covenant v. Biden, 
993 F.3d 640, 696 (9th Cir. 2021) (VanDyke, J., dissenting from the denial of 
rehearing en banc); id. at 687 (Bumatay, J., same).  Yet they aided the Democratic 
cause by invalidating Trump-era immigration rules.  If this case gets before the 
Supreme Court, the safe bet is that it would overrule those erroneous precedents.  
This settlement tactic is therefore a powerful tool for the administration: it lets it 
perpetuate bad—but politically favorable—law in the Ninth Circuit by settling 
before reaching the Supreme Court, and then throw up its hands and say it is bound 
by that law.   
Ultimately, it is impossible to know the government’s exact motives for its 
current course of action because it hasn’t even attempted to tell us.  But putting aside 
the political legitimacy of any of the potential motivations discussed above, one 
thing is clear: none of them are a legally sufficient reason to grant a judicial stay of 
this case, particularly since the request is directly at odds with the many dire 
predictions the government has previously made before this court.  Up until now, we 
have been repeatedly assured that the rule is critical to the security of the border.  But 
now, astoundingly, the government seeks to abandon its defense of the rule—or at 
least put that defense on ice until a more politically convenient time.  Whatever the 
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 12 of 13

12 
parties’ real motivations are for seeking to stay this case, they haven’t provided us 
with a legally sufficient basis for their sudden change of course.  Accordingly, I 
respectfully dissent from the panel’s decision to grant the stay motion.  
Case 4:18-cv-06810-JST     Document 198     Filed 02/21/24     Page 13 of 13

File and source

File

gov.uscourts.cand.334557.198.0.pdf

Size

355,523 bytes

SHA-256

080129ed3604b7901212946d411cd00782a9053da7b78a498357b780d1a73eb4

Our copy

gov.uscourts.cand.334557.198.0.pdf

Original

archive.org