The Volokh Conspiracy

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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)