Administrative Law

Judge Katsas on DOJ's Delay in Seeking Expedited Appeal

If a case warrants an expedited appeal, the Justice Department should act like it.

|The Volokh Conspiracy |

In September, a federal district court judge enjoined a decision by the Department of Homeland Security to expand the categories of unlawfully present aliens subject to expedited removal. Given the legal issues involved—and the priority the Trump Administration has placed on immigration policy—one might have thought that the Justice Department would have acted quickly to have this decision reversed. Not exactly.

The government dawdled, and then later sought to have review expedited. This prompted the following comment from Judge Katsas of the U.S. Court of Appeals for the D.C. Circuit accompanying the court's order granting the belated motion to expedite the appeal.

The Immigration and Nationality Act permits the Secretary of Homeland Security, in his "sole and unreviewable discretion," to designate for expedited-removal procedures any alien who has not been admitted or paroled into the United States and who has not been continuously present in the United States for two years. 8 U.S.C. § 1225(b)(1)(A)(iii). In the order under review, the Acting Secretary undertook to designate for expedited removal two categories of aliens falling within this express statutory authorization. Designating Aliens for Expedited Removal, 84 Fed. Reg. 35409 (July 23, 2019). The district court stopped that initiative dead in its tracks, by universally enjoining the Acting Secretary from enforcing the designation against "anyone to whom it would apply," whether or not a party to the litigation. Make the Road New York v. McAleenan, No. 19-cv-2369 (D.D.C. Sept. 27, 2019).

The government's ensuing appeal plainly warrants substantial expedition. Given the "sole and unreviewable discretion" referenced in section 1225(b)(1)(A)(iii), the government would seem to have strong grounds for challenging the district court's conclusion that the designation may be reviewed and set aside through the Administrative Procedure Act. Moreover, the Acting Secretary has described the designation as a "necessary response to the ongoing immigration crisis," which includes an unprecedented backlog of over 900,000 removal cases. 84 Fed. Reg. at 35411. Likewise, in a filing styled as a motion for expedition, the Department of Justice represents that the injunction "profoundly harms the government and the public" by preventing a sensible allocation of the "limited government resources" available for immigration enforcement. Unopposed Motion to Expedite Appeal at 11–12, Make the Road New York v. McAleenan, No. 19-5298 (D.C. Cir. Nov. 15, 2019) (quotation marks omitted). Finally, and most importantly, a governing statute requires this Court, in considering whether the Acting Secretary permissibly implemented his authority under section 1225(b), to expedite the appeal "to the greatest possible extent." 8 U.S.C. § 1252(e)(3)(D). Just this week, when faced with another binding directive to decide a different appeal "with appropriate dispatch," Barr v. Roane, No. 19A615 (U.S. Dec. 6, 2019), we ordered briefing and oral argument over a span of less than one month. In re Fed. Bureau of Prisons' Execution Protocol Cases, No. 19-5322 (D.C. Cir. Dec. 9, 2019). Even in the absence of any specific time limit, we often expedite important, time-sensitive appeals to permit oral argument within two months after docketing. See, e.g., In re Comm. on the Judiciary, No. 19-5288 (D.C. Cir. Nov. 18, 2019) (2 months); Trump v. Mazars, No. 19-5142 (D.C. Cir. May 23, 2019) (1.5 months); Comm. on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Nov. 27, 2019) (1 month).

Unfortunately, the government's leisurely prosecution of this appeal has made comparable expedition impossible. The district court entered its injunction on September 27, 2019. The government waited almost a month—until October 25—to file its notice of appeal. It then waited three additional weeks—until November 15—to seek what it described as expedition. Yet the motion to expedite proposed a briefing schedule extending over 91 additional days—the same overall time limit imposed by default under Federal Rule of Appellate Procedure 31(a). And by the time this unhurried motion made its way to a panel of judges, the proposed due date for the government's opening brief was barely two weeks away.

The attached order modestly shortens the time limits for the appellees' brief and for the reply brief. Even with that adjustment, this case will not even be fully briefed until more than three months after the notice of appeal was filed—and more than four months after the injunction was entered. But at this point midstream, any further expedition would place the appellees at an unfair disadvantage with regard to deadlines for the parties' respective principal briefs. The appeal thus will proceed much more slowly than it should have, even though we have attempted to expedite it to the greatest extent that remains possible.

In other words, if the district court's alleged error is not promptly corrected, DOJ has no one to blame but itself. This one is not on the courts.

(Hat tip: Steve Vladeck)

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  1. This is evidence of sloth at the line level and incompetence within the managerial level at the DoJ. This is the kind of thing that gets law firms and lawyers fired, and maybe even sued, in the private sector.

  2. I sometimes wonder if members of “the resistance” who haven’t got the courage to just violate orders and be fired, aren’t deliberately slow walking and messing up Administration policy.

    Then again, it IS the government, incompetence always has to be considered a plausible explanation.

    1. Agree with you 100%.

    2. Hanlon’s Razor, yet again, and without regard to the governmental / nongovernmental status of the actor.

  3. Agreeing with the court and commenters that if the State doesn’t act like it’s urgent then the court shouldn’t treat it as urgent, but want to point out a necessary exception: it may not have been urgent at the time, but something has since occurred that now makes it urgent. Doesn’t apply to this case, but could in a different case.

  4. “This one is not on the courts.”

    Except to the extent that we expect judges to know what “unreviewable” means.

    1. Except to the extent that we expect governments (and commenters) to understand that if government gets to decide when its actions are unreviewable, that is the end of limited government.

      1. Please stop with the on-point and trenchant observations. “Falling on deaf ears.” would be a gross understatement.

      2. If the statute says an action is “unreviewable”, then, as a legal matter, it is of course still reviewable on constitutional grounds, as a statute can’t overrule the Constitution. Yeah, and maybe treaty grounds, too, if the treaty is self-executing.

        But it would then cease to be reviewable on any other grounds besides constitutional, because statutes DO override everything else, so if the statute says “unreviewable”, that overrides anything else that might provide for review.

  5. There are many individuals in the DOJ (and DHS) who are, to put it mildly, not in agreement with this administration’s immigration goals and policies, and are less-than-motivated in moving those policies forward.

    1. Your proof of this is?

      Because otherwise it’s just deep state paranoia, if not a conspiracy theory.
      Just because you can’t be a professional about your politics doesn’t mean no one can.

      No reason not to think this is just run-of-the-mill incompetence; no need to strap on the tin foil.

      1. That they said so? Seriously, are we supposed to pretend they didn’t? Why are we even talking about “the resistance”? Trump didn’t invent that term, his opponents did, to describe themselves.

      2. How about common fucking sense?

        Did every Obama-supporting staffer suddenly support Trump when the occupant switched? Probably not.

        Did new hires during Obama’s 8 years support Obama? More than likely, since he was the current occupant.

        Gosh, ya think maybe a lot of staffers don’t support Trump? I dunno, that’s a hard one.

        1. Who you support doesn’t mean you change the job you do. That’s common sense.

          Unless you do a worse job in whatever you do when Democrats are involved.

      3. I thought my comment so innocuous, I didn’t expect any unhinged reaction to it, but the #Resistance never fails to surprise.

        Do you doubt some in the Justice Department disagree with Trump’s policies? Then you must have been born yesterday. And it is human nature to more enthusiastically pursue work you believe in.

        But if you require a name, how about Sally Yates, who as Acting Attorney General publicly declared she wouldn’t defend Trump’s “Muslim ban”, becoming an instant #Resistance hero. The Supreme Court ultimately disagreed with Yates’ views on the constitutionality, but no one could doubt she was alone in the DOJ.

        1. I’m no unhinged, I just think that you need some proof to pierce the default assumption that people are professionals and do the work they’re paid to do.

          1. If various public statements, and, yes, Sally Yates, doesn’t pierce that default assumption, what would it take?

            You have a laughable vision of the people who decide to go into government. Maybe they should be professionals who just do the work they’re paid to do, and follow orders faithfully unless they resign, but they aren’t. Many of them are political animals who see their real job as making sure that policy doesn’t change as a result of elections.

            1. You’re mixing up anecdote with blanket truth again. I’ll let you join the ‘all cops are bad’ crew on the left; same logic.

              I don’t think it’s crazy to stand up for the idea that people by and large do their jobs regardless of partisanship.

              Though at this point I’m not sure I’d trust you to do your job, so sure are you that partisanship always comes before professionalism.

      4. When I first came to work in DC, I was called into the office of one of the agency SES directors for a “get to know you” discussion.

        He told me in no uncertain words that the SES(s) run DC, presidential appointees are virtual lame ducks the day they show up. “If we don’t like the direction they are going, we just wait them out”.

        That was 15 years ago. Appointed officers come and go, but the core members of the senior executive service remain.

        Call it deep state, call it conspiracy theory, call it whatever you would like, but no matter what you call it, it does exist.

        I am not saying it’s with nefarious intent, but it is with intent.

        1. I don’t doubt there are no shortage of SES’s who are too big for their britches. But I work in DC and SES’s all jump at the word of a political appointee. Loads of decisions are important enough we need to run them by a political for approval, and when a position is demoted to no longer be a political appointee, they get a lot more crap.

          Nothing you said talked about sabotaging your job if you don’t like the orders. Do you think so many civil servants quit because they just couldn’t sabotage hard enough? Or maybe because that’s what you’re supposed to do if you cant conscience your job anymore.
          And if it’s really serious go to the IG and blow the whistle.

  6. Just tangentially, “Acting Secretary,” shows up 12 times in the quote. I found that kind of jarring. Isn’t it time a judge told the Trump administration that the, “Acting,” appointment dodge is a circumvention of constitutional process?

    The quote leads, The Immigration and Nationality Act permits the Secretary of Homeland Security, in his “sole and unreviewable discretion,” to designate, etc.

    Why not just say, “Get out of here, you aren’t the person authorized in the act. The Act purports to give, ‘unreviewable discretion,’ to the Secretary, and that is not you.”

    1. ” Isn’t it time a judge told the Trump administration”

      Isn’t it about time a judge told McConnell that the Senate should act on nominations besides those to the judiciary?

  7. The complaint says nothing about acting vs. regular Secretary.

    And the Way the complaint badmouths freedom of choice, you would almost think The ACLU hadn’t spent the last forty years arguing the opposite position. Where are all the arguments in favor of freedom of choice when the ACLU’s personal religious beliefs aren’t the ones at stake? Choice is essential to American’s psychological well being, their very sense of self, their ability to be free agents in the world, requires an ability to exercise prompt control, to delay choice is to deny it – this is an organization that fought 48 hour waiting periods tooth and nail, crying that even suggesting choice-makers might want to think about it a bit is a horrible infringement on American’s freedom. And the minute this organization’s board gets a wiff if religion, and suddenly everything they previously said about choice for half a century becomes complete bullshit. Choice is “arbitrary and capricious,” having a psychological need to exercise control in order to feel free is irrational and psychologically unstable, needing to worry about ones own needs before taking on others is immoral and Machievellian – It’s such a complete reversal of position you’d think this was the Catholic Church, not the ACLU, making out this complaint.

    I was waiting for the paragraph that said God would condemn the judge to Hell if he didn’t rule the ACLU’s way. The rest of the complaint pretty much said that. It was pretty much -“morally wrong, Against my religion therefore illegal” – the opposite of everything the ACLU previously claimed to stand for.

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