Summary
The United States Court of Appeals for the Ninth Circuit denied the petition for rehearing en banc in a challenge to the Department of Homeland Security Secretary’s actions concerning Temporary Protected Status for Venezuela and Haiti. The separate writings address the court’s jurisdiction under the TPS statute’s judicial-review bar, the Secretary’s statutory authority to vacate or terminate TPS designations, and the availability of relief under the Administrative Procedure Act.
Topics
Practice areas
Questions Presented
- Whether rehearing en banc should be granted to reconsider the panel's holding that 8 U.S.C. § 1254a(b)(5)(A) does not bar judicial review of claims asserting that the Secretary exceeded her statutory authority in vacating or terminating TPS designations.
- Whether the panel's remedy under 5 U.S.C. § 706(2), including setting aside the challenged TPS actions and restoring the status quo, was authorized and consistent with Trump v. CASA, Inc.
- Whether the majority concurrence in the prior panel decision was binding precedent.
- Whether the prior majority concurrence correctly applied the APA's arbitrary-and-capricious standard and Department of Commerce v. New York in evaluating alleged pretext and preordained agency decision-making.
Holdings
- The petition for rehearing en banc is denied because it did not receive a majority vote of the non-recused active judges in favor of en banc consideration.
- The Wardlaw concurrence maintains that 8 U.S.C. § 1254a(b)(5)(A) does not bar judicial review of a claim that the Secretary exceeded her statutory authority, while the Bumatay and R. Nelson dissents maintain that the provision bars review of the challenged TPS determinations.
- The Wardlaw concurrence states that 5 U.S.C. § 706 supplied a remedy to set aside the Secretary's unlawful actions and that the prior panel did not issue an injunction. The R. Nelson dissent argues that the panel failed to determine whether § 706(2) authorizes relief having nationwide effect and improperly combined statutory set-aside relief with equitable complete-relief principles.
- The Mendoza concurrence maintains that the prior panel concurrence properly applied State Farm and Department of Commerce principles by considering the administrative record collectively to determine whether the Secretary's stated rationale was pretextual and reflected preordained decision-making. The R. Nelson dissent maintains that the concurrence improperly substituted judicial judgment for the agency's rationale and exceeded Department of Commerce.
Key quotations
“The Petition for Rehearing En Banc is DENIED.”
“Congress did not immunize ultra vires acts of the Secretary from judicial review.” (755-58)
“In these circumstances, 5 U.S.C. § 706 of the Administrative Procedure Act (“APA”) provided a clear remedy: we set aside the Secretary’s unlawful action.” (767-68)
“Together, then, the plain text of § 1254a(b)(5)(A) bars judicial review of any definitive decision of the Secretary—of whatever kind—that relates to a TPS “designation,” “extension,” or “termination.”” (9)
Factual background
The Secretary of Homeland Security vacated a 2025 extension of Venezuela's TPS designation, terminated Venezuela's 2023 TPS designation, and partially vacated an extension of Haiti's TPS designation by shortening its duration. TPS beneficiaries and the National TPS Alliance challenged those actions under the APA, alleging that the Secretary lacked statutory authority. The district court set aside the challenged actions, and the Ninth Circuit panel affirmed before the government sought rehearing en banc.
Procedural history
Plaintiffs sued in the Northern District of California, alleging that Secretary Noem lacked statutory authority to vacate, shorten, or terminate TPS designations and that her actions violated the APA and the Equal Protection Clause. The district court granted summary judgment on the APA claims and set aside the challenged actions while leaving the Equal Protection claims unresolved. A Ninth Circuit panel affirmed, and the government petitioned for rehearing en banc. The petition was denied because it failed to receive a majority vote of the non-recused active judges.