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In re Border Infrastructure Environmental Litigation

United States District Court, S.D. California

February 27, 2018

IN RE BORDER INFRASTRUCTURE ENVIRONMENTAL LITIGATION

          ORDER DENYING PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [Dkt. Nos. 18, 28, 29, 30, 35.]

          Gonzalo P. Curiel United States District Judge

         These three consolidated cases involve challenges to Waiver Determinations made by former Secretaries of the Department of Homeland Security on August 2, 2017 and September 12, 2017 pursuant to section 102 of IIRIRA[1] waiving the legal requirements of NEPA, [2] the ESA, [3] the CZMA[4] and more than 30 additional laws not at issue in these cases. The Waiver Determinations concern two types of border wall construction projects in San Diego County: (1) the “border wall prototype project”; and (2) the replacement of fifteen miles of existing border fence in the San Diego Sector and three miles of existing border fence in the El Centro Sector (“border fence replacement projects”). The Plaintiffs allege variously that (1) the Waivers are ultra vires acts that exceed the authority delegated by Congress; and (2) the Waivers are unconstitutional acts under a variety of legal doctrines.

         The Court is aware that the subject of these lawsuits, border barriers, is currently the subject of heated political debate in and between the United States and the Republic of Mexico as to the need, efficacy and the source of funding for such barriers. In its review of this case, the Court cannot and does not consider whether underlying decisions to construct the border barriers are politically wise or prudent. As fellow Indiana native Chief Justice Roberts observed in addressing a case surrounded by political disagreement: “Court[s] are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.” Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012). Here, the Court will focus on whether Congress has the power under the Constitution to enact the challenged law and whether the Secretary of Department of Homeland Security properly exercised the powers delegated by Congress.

         Before the Court are three cross-motions for summary judgment. A hearing was held on February 9, 2018. (Dkt. No. 44.) Michael Cayaban, Esq. and Noah Golden Frasner, Esq. appeared on behalf of Plaintiffs People of the State of California and the California Coastal Commission; Brian Segee, Esq. and Brendan Cummings, Esq. appeared on behalf of Plaintiff Center for Biological Diversity; and Sarah Hanneken, Esq. appeared on behalf of the Plaintiffs Defenders of Wildlife, Sierra Club, and Animal Legal Defense Fund. (Id.) Galen Thorp, Esq. appeared on behalf of Defendants. (Id.) The parties filed supplemental briefs on February 13, 2018. (Dkt. Nos. 46, 47, 48, 49.)

         Based on the parties' briefs, the supporting documentation, the applicable law, the arguments made at the hearing and the supplemental briefing, the Court DENIES Plaintiffs' motions for summary judgment and GRANTS Defendants' motions for summary judgment.

         I. BACKGROUND

         A. Section 102 of Illegal Immigration Reform and Immigrant Responsibility Act

          In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which, pursuant to Section 102(a), required the Attorney General to “take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” Pub. L. No. 104-208, Div. C., Title I, § 102(a), 110 Stat. 3009, 3009-554 (1996), codified at 8 U.S.C. § 1103 note. IIRIRA Section 102(c), as originally enacted, authorized the Attorney General to waive the Endangered Species Act of 1973 (“ESA”) and the National Environmental Policy Act of 1969 (“NEPA”) when he determined such waiver “was necessary to ensure expeditious construction of the barriers and roads under this section.” Id. § 102(c). The Homeland Security Act of 2002 abolished the Immigration and Naturalization Service and transferred responsibility for the construction of border barriers from the Attorney General to the Department of Homeland Security (“DHS”). Pub. L. No. 107-296, 116 Stat. 2135 (2002). In 2005, the REAL ID Act, Pub. L. No. 109-13, Div. B, Title I, § 102, 119 Stat. 231, 302, 306 (May II, 2005), amended the waiver authority of section 102(c) expanding the Secretary of DHS' authority to waive “all legal requirements” that the Secretary, in his or her own discretion, determines “necessary to ensure expeditious construction of the barriers and roads under this section.” Id. It also added a judicial review provision that limited the district court's jurisdiction to hear any causes or action concerning the Secretary's waiver authority to solely constitutional claims. Id. § 102(c)(2)(A). Further, the provision foreclosed appellate court review and directed any review of the district court's decision be raised by petition for a writ of certiorari with the Supreme Court of the United States. Id. § 102(c)(2)(C).

         Section 102 consists of three sections: (1) section 102(a) describes the general purpose of the statute; (2) section 102(b) specifies Congress' mandate for specific border barrier construction; and (3) section 102(c) grants the Secretary the discretion to waive “all legal requirements” he or she “determines necessary to ensure expeditious construction of the barriers and roads” and provides for limited judicial review of the Secretary's waiver decision to solely constitutional violations. See 8 U.S.C. § 1103 note.

         Since its enactment in 1996, IIRIRA section 102 has been amended three times although the general purpose of the statute under section 102(a) has remained the same. When IIRIRA was first enacted in 1996, section 102(b) mandated “construction along the 14 miles of the international land border of the United States, starting at the Pacific Ocean and extending eastward of second and third fences, in addition to the existing reinforced fence, and for roads between the fences.” 8 U.S.C. § 1103(b) (1996).

         The Secure Fence Act of 2006, Pub. L. No. 109-367, § 3, 120 Stat. 2638 (Oct. 26, 2006), amended the specific mandates of section 102(b). It directed the DHS to “provide for at least 2 layers of reinforced fencing, [and] the installation of additional physical barriers, roads, lighting, cameras, and sensors” in five specific segments along the U.S.Mexico border encompassing the states of California, Arizona, New Mexico and Texas. Id. It also set dates of completion for two segments to be completed by certain dates in 2008. Id.

         Fourteen months later, the Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, Div. E, Title V § 564, 121 Stat. 2090 (Dec. 26, 2007), again amended the mandates of section 102(b) and they currently remain the operative version of the statute.

In its current version, section 102, codified at 8 U.S.C. § 1103 note, provides,
(a) In general.--The Secretary of Homeland Security shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.
(b) Construction of fencing and road improvements along the border.--
(1) Additional fencing along southwest border.--
(A) Reinforced fencing.--In carrying out subsection (a) [of this note], the Secretary of Homeland Security shall construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border.
(B) Priority areas.--In carrying out this section [Pub. L. 104-208, Div. C, Title I, § 102, Sept. 30, 1996, 110 Stat. 3009-554, which amended this section and enacted this note], the Secretary of Homeland Security shall--
(i) identify the 370 miles, or other mileage determined by the Secretary, whose authority to determine other mileage shall expire on December 31, 2008, along the southwest border where fencing would be most practical and effective in deterring smugglers and aliens attempting to gain illegal entry into the United States; and
(ii) not later than December 31, 2008, complete construction of reinforced fencing along the miles identified under clause (i).
(C) Consultation.--
(i) In general.--In carrying out this section, the Secretary of Homeland Security shall consult with the Secretary of the Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.
(ii) Savings provision.--Nothing in this subparagraph may be construed to-
(I) create or negate any right of action for a State, local government, or other person or entity affected by this subsection; or
(II) affect the eminent domain laws of the United States or of any State.
(D) Limitation on requirements.--Notwithstanding subparagraph (A), nothing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location.
(2) Prompt acquisition of necessary easements.--The Attorney General, acting under the authority conferred in section 103(b) of the Immigration and Nationality Act (as inserted by subsection (d)) [subsec. (b) of this section], shall promptly acquire such easements as may be necessary to carry out this subsection and shall commence construction of fences immediately following such acquisition (or conclusion of portions thereof).
(3) Safety features.--The Attorney General, while constructing the additional fencing under this subsection, shall incorporate such safety features into the design of the fence system as are necessary to ensure the well-being of border patrol agents deployed within or in near proximity to the system.
(4) Authorization of appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out this subsection. Amounts appropriated under this paragraph are authorized to remain available until expended.
(c) Waiver.--
(1) In general.--Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section. Any such decision by the Secretary shall be effective upon being published in the Federal Register.
(2) Federal court review.--
(A) In general.--The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.
(B) Time for filing of complaint.--Any cause or claim brought pursuant to subparagraph (A) shall be filed not later than 60 days after the date of the action or decision made by the Secretary of Homeland Security. A claim shall be barred unless it is filed within the time specified.
(C) Ability to seek appellate review.--An interlocutory or final judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States.”

8 U.S.C. § 1103 note (hereinafter “8 U.S.C. § 1103”).

         B. Factual Background

         On January 25, 2017, President Donald J. Trump issued Executive Order No. 13767 entitled “Border Security and Immigration Enforcement Improvements.” (Dkt. No. 30-5, Cayaban Decl., Ex. 7, Executive Order, 82 Fed. Reg. 8793.) Section 4 of the Executive Order No. 13767 concerns “Physical Security of the Southern Border of the United States” and provides, in part,

The Secretary shall immediately take the following steps to obtain complete operational control, as determined by the Secretary, of the southern border:
(a) In accordance with existing law, including the Secure Fence Act and IIRIRA, take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border, using appropriate materials and technology to most effectively achieve complete operational control of the southern border; . . .
(d) Produce a comprehensive study of the security of the southern border, to be completed within 180 days of this order, that shall include the current state of southern border security, all geophysical and topographical aspects of the southern border, the availability of Federal and State resources necessary to achieve complete operational control of the southern border, and a strategy to obtain and maintain complete operational control of the southern border.

(Id. at §§ 4(a) & (d).) “‘Wall' shall mean a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” (Id. at § 3(e).)

         On August 2, 2017, former DHS Secretary John Kelly issued a Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended (“August 2 Waiver Determination” or “San Diego Waiver”) in the Federal Register invoking section 102(c)'s waiver of the application of NEPA, the ESA, the Coastal Zone Management Act (“CZMA”) and more than thirty additional laws not at issue in this lawsuit to “various border infrastructure projects” in the “Project Area, ” which is defined as “an approximately fifteen mile segment of the border within the San Diego Sector that starts at the Pacific Ocean and extends eastward, ” starting at “the Pacific Ocean and extending to approximately one mile east of Border Monument 251.” (Dkt. No. 30-6, Cayaban Decl., Ex. 11, 82 Fed. Reg. 35, 984-85.) Secretary Kelly determined that the Project Area “is an area of high illegal entry.” (Id. at 35, 985.)

         Two projects are specified in the August 2 Waiver Determination. (Id. at 35, 984-85.) One project is the replacement of about 15 miles of existing primary fencing near San Diego. (Id.) The second project is the construction of prototype border walls on the eastern end of the secondary barrier near San Diego. (Id. at 35, 984; Dkt. No. 18-2, Ds' Index of Exs., Ex. 14, Memorandum, Construction and Evaluation of Border Wall Prototypes, U.S. Border Patrol, San Diego Sector, California (Sept. 25, 2017).)

         On September 12, 2017, former DHS Acting Secretary Elaine Duke, issued a Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended (“September 12 Waiver Determination” or “Calexico Waiver”) in the Federal Register also invoking section 102(c)'s waiver authority as to compliance with NEPA, the ESA and numerous other statutes not at issue in this lawsuit to the Project Area in the El Centro Sector. (Dkt. No. 30-6, Cayaban Decl., Ex. 12, 82 Fed. Reg. 42, 829-30.) Secretary Duke determined that the “El Centro Sector is an area of high illegal entry.” (Id. at 42, 830.) The Determination seeks to build a replacement fence in the El Centro Sector “along an approximately three mile segment of the border that starts at the Calexico West Land Port of Entry and extends westward.” (Id.)

         Contracts for the prototype project were awarded on August 31 and September 7, 2017. (Dkt. No. 39-1, Cal. Ps' Response to Ds' SSUF, No. 10.) Construction for the prototypes began on September 26, 2017 and was completed on October 26, 2017. (Dkt. No. 49-4, Enriquez Decl. ¶ 11.) Construction of the Calexico three-mile replacement fence was set to begin on February 15, 2018 while the San Diego Sector replacement fence is scheduled for construction in August 2018. (Id. ¶¶ 10, 36.)

         C. Procedural History

         On September 6, 2017, Plaintiff Center for Biological Diversity (“Center Plaintiff”) filed its operative second amended complaint (“SAC”) for declaratory and injunctive relief against U.S. Department of Homeland Security (“DHS”); U.S. Customs and Border Protection (“CBP”); and Elaine Duke, Acting Secretary of U.S. Department of Homeland Security challenging the August 2 Waiver Determination under section 102 of IIRIRA concerning the two border wall construction projects located in the San Diego Sector.[5] (Dkt. No. 16, SAC.)

         On November 21, 2017, Plaintiffs Defenders of Wildlife, Sierra Club and Animal Legal Defense Fund (“Coalition Plaintiffs”) filed their operative first amended complaint (“FAC”) against DHS; Elaine Duke, Acting Secretary of DHS; and United States of America for declaratory and injunctive relief for violations of section 102 and constitutional claims concerning the two border wall construction projects located in the San Diego and El Centro Sectors based on the two Waiver Determinations.[6] (Dkt. No. 26.)

         On September 20, 2017, People of the State of California (“California”) and the California Coastal Commission (collectively “California Plaintiffs”) filed a complaint against United States of America; DHS; Acting Secretary of DHS Elaine Duke; CBP; and Acting Commissioner of CBP Kevin K. McAleenan. (Dkt. No. 17cv1911, Dkt. No. 1.) The complaint alleges declaratory and injunctive relief based on numerous violations of the U.S. Constitution, and statutes relating to the border wall construction projects in the San Diego and El Centro Sectors based on the two Waiver Determinations.[7]

         In summary, all Plaintiffs[8] allege the Secretaries' Waiver Determinations are ultra vires acts that are not authorized under section 102. Because the Waiver Determinations are void based on the ultra vires acts of the Secretaries, Plaintiffs also assert violations of NEPA, ESA, CZMA and the APA. Plaintiffs also allege the following violations of the U.S. Constitution:

- Violation of Article I, Section 1 - the Non-Delegation Doctrine/Separation of Powers (by all Plaintiffs)
- Violation of Article II, Section 3 - Take Care Clause (by Center Plaintiff)
- Violation of Article I, Sections 2 & 3 (by California Plaintiffs)
- Violation of Article I, Section 7 - Presentment Clause (by all Plaintiffs)
- Violation of Due Process, Article III, and First Amendment right to petition the government (by Coalition Plaintiffs and California Plaintiffs)
- Violation of the Tenth Amendment - Concurrent State and Federal Jurisdiction (by Coalition Plaintiffs)
- Violation of the Tenth Amendment (by California Plaintiffs)

         On October 24, 2017, the Court granted the parties' joint motion to consolidate the three cases and the parties' agreed upon briefing schedule on their cross-motions for summary judgment. (Dkt. Nos. 21, 22.)

         Prior to consolidation, on October 6, 2017, Defendants filed a motion to dismiss Center Plaintiff's second amended complaint which was converted to a motion for summary judgment in the Court's consolidation order. (Dkt. Nos. 18, 22.) On November 22, 2017, Center Plaintiff filed a cross-motion for summary judgment[9] and an opposition to Defendants' motion for summary judgment. (Dkt. No. 28.) On December 20, 2017, Defendants filed an omnibus brief that included their reply in support of their motion for summary judgment and an opposition to Center Plaintiff's motion for summary judgment. (Dkt. No. 35.) On January 5, 2018, Center Plaintiff filed a reply to Defendants' opposition. (Dkt. No. 36.)

         On November 22, 2017, Coalition Plaintiffs and the California Plaintiffs filed their motions for summary judgment. (Dkt. Nos. 29, 30.) On December 20, 2017, all Defendants filed an omnibus cross-motion for summary judgment and opposition to Coalition and California Plaintiffs' motions for summary judgment. (Dkt. No. 35.)

         On January 5, 2018, the Coalition Plaintiffs and California Plaintiffs separately filed their oppositions to Defendants' cross-motion for summary judgment and replies to their motions. (Dkt. Nos. 38, 39.) On January 23, 2018, Defendants filed their reply to their cross-motion for summary judgment. (Dkt. No. 42.)

         II. ANALYSIS

         A. Legal Standard on Motion for Summary Judgment

          Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby “secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         B. Article III Standing as to the State of California

         The State of California argues it has Article III standing because it will suffer injury to its real property that it owns and manages adjacent to the border wall projects.[10]It contends that the Waiver Determinations infringe on California's procedural and sovereign rights in creating and enforcing its own laws and obtaining benefits provided under NEPA and the APA. Defendants respond that California has not carried its burden to establish standing as to each of its numerous claims and has not demonstrated that the Waiver Determinations impact state laws which would be enforceable in connection with the projects at issue.

         Article III, Section 2 of the United States Constitution requires that a plaintiff have standing to bring a claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In order “to satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan, 504 U.S. at 560-61). The party seeking federal jurisdiction has the burden of establishing its existence. Lujan, 504 U.S. at 561. “A plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. Fed. Election Comm'n, 552 U.S. 724, 734 (2008).

         States have a “procedural right” and “quasi-sovereign interests” in protecting its natural resources, such as air quality. Massachusetts v. EPA, 549 U.S. 497, 520 (2007) (“EPA's steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both ‘actual' and ‘imminent.'”). In Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907), the State of Georgia filed an action to protect its citizens from air pollution originating from outside its borders and the Court asserted that a state, in its capacity as a quasi-sovereign, has an “interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.” Id.

         Here, the parties dispute whether California has demonstrated an injury in fact, and whether the injury in fact is traceable to the Waiver Determinations. As held by the U.S. Supreme Court, California has a procedural right and quasi-sovereign right in the environmental protections afforded by NEPA and the APA. See id. California provided declarations from experts detailing the possible harm to the Tijuana Estuary and harm to rare, threatened or endangered species. (Dkt. No. 30-7, Clark Decl.; Dkt. No. 30-8, Vanderplank Decl.; Dkt. No. 30:9, Delaplaine Decl.) Eight prototype walls have already been constructed demonstrating that the injury is actual and the El Centro Sector border fence replacement project, which is currently undergoing consultation and may have already begun construction, is also imminent. The Court concludes that California has demonstrated an injury-in-fact that is concrete and particularized, and actual or imminent. Moreover, California argues it has a legally protected sovereign interest in creating and enforcing its own laws. The Waiver Determinations will preclude the enforcement of California's laws which will affect its sovereign interests. Defendants object because Plaintiffs merely string cite to eight state code or regulations without explaining how these provisions apply to the projects at issue. But, as noted by Plaintiff, the Waiver Determinations do not identify which California law or regulation Defendants are waiving and as an example it provides some provisions where the waiver would bar California's enforcement of its laws as to DHS, its contractors, or to the State's permitting authority or other legal actions.

         It is not disputed that the Waiver Determinations waive all legal requirements and include related state laws. (See Dkt. No. 30-6, Cayaban Decl., Ex. 11, 82 Fed. Reg. 35, 984-85; id., Ex. 12, 82 Fed. Reg. 42, 829-30.) Defendants do not deny that California state laws are being waived. The Court agrees with California that a bar to enforcing its own state laws related to the border wall projects is an injury in fact that supports Article III standing. The Court concludes that California has Article III standing.

         C. Whether the Court has Jurisdiction Over Plaintiffs' Non-Constitutional Claims based on Ultra Vires Acts of the Secretary of the DHS

         Defendants contend that the Court lacks jurisdiction to consider Plaintiffs' non-constitutional claims, including whether the Secretaries' actions concerning the two Waiver Determinations are ultra vires. They explain that section 102 explicitly expresses Congress' intent to bar the district court from exercising jurisdiction over any claims arising from the Secretary of DHS's waiver determination except for a constitutional violation. Plaintiffs argue that the Court may consider whether the Waivers exercised by the Secretaries constitute ultra vires acts as they exceed the authority granted to the Secretaries under section 102; therefore, they contend section 102(c)(2)'s judicial review bar on non-constitutional claims does not apply. For the reasons stated below, the Court finds that it may consider whether the Secretaries have violated any clear and mandatory statutory obligations set forth in section 102. Finding that there are no such violations, the Court upholds the jurisdictional bar and concludes that it does not have the jurisdiction to hear any claims other than constitutional claims.

         Section 102(c)(2)(A) provides that the “district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1) [the waiver provision]. A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.” 8 U.S.C. § 1103(c)(2)(A).

         As a starting point, there is a “strong presumption that Congress intends judicial review of administrative action.” Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670 (1986); El Paso Natural Gas Co. v. United States, 632 F.3d 1272, 1276 (D.C. Cir. 2011) (quoting Bowen, 476 U.S. at 670) (“When considering whether a statute bars judicial review, ‘[w]e begin with the strong presumption that Congress intends judicial review of administrative action.'”). In order to overcome the strong presumption, there must be “clear and convincing” evidence of a contrary legislative intent. Bowen, 476 U.S. at 671-72. The strong presumption may be overcome by “specific language or specific legislative history that is a reliable indicator of congressional intent, ” or a “specific congressional intent to preclude judicial review that is ‘fairly discernible' in the detail of the legislative scheme.” Id. at 673.

         In this case, the Center Plaintiff does not dispute that the presumption favoring judicial review has been overcome by the express language of section 102(c)(1) and does not challenge Defendants' argument on this issue. Instead, all Plaintiffs argue that the August 2, 2017 and September 12, 2017 Waiver Determinations constitute ultra vires acts of the Secretary that do not fall under section 102 because the Waivers are not authorized by sections 102(a) or (b) and were not decisions made “pursuant to” section 102(c)(1). Therefore, according to Plaintiffs, section 102(c)(2) does not apply, and the Waiver Determinations are subject to review by the Court. Defendants respond that Plaintiffs cannot bypass the jurisdictional bar by framing their claims as ultra vires challenges when judicial review is expressly prohibited. They argue that the Court should consider the plain meaning of section 102(c)(2) and that should be the end of the matter.

         Here, Congress expressly barred the district court's review of non-constitutional claims under section 102(c)(2), and this provision rebuts the strong presumption favoring judicial review of administrative actions. However, the United States Supreme Court has identified a narrow exception to an express statutory bar on judicial review when there is a claim that an agency acted beyond its statutory authority. See Leedom v. Kyne, 358 U.S. 184 (1958);[11] Bd. of Governors of Fed. Reserve Sys. v. MCorp. Fin., Inc., 502 U.S. 32 (1991); see also Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988).

         In Kyne, the Supreme Court held that a district court had jurisdiction to review a non-final agency order “made in excess of its delegated powers and contrary to a specific prohibition in the [National Labor Relations Act].” Kyne, 358 U.S. at 188. The Kyne court found that a National Labor Relations Board's (“NLRB”) determination that a unit involving both professional and non-professional employees was appropriate for collective bargaining purposes was in excess of delegated powers because it was in direct conflict with the provisions of § 9(b)(1) of the National Labor Relations Act (“NLRA”) dictating that it “shall not” do so “unless a majority of such professional employees vote for inclusion in such unit.” Kyne, 358 U.S. at 185. Consequently, the district court had jurisdiction to set aside a certification of the NLRB where that agency had refused to poll professional employees before combining them in a bargaining unit with non-professional employees. Id. at 188-89. In the ordinary case, a decision certifying a bargaining unit is not a final order that can be reviewed but the Court explained that first, the “suit [was] not one to ‘review, ' in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather, it [was] one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act.” Id. at 188. Second, because, in the ordinary case, only an employer can initiate an unfair labor practice charge, and ultimately a reviewable final order, by refusing to bargain after an election, the aggrieved employees in this case had “no other means, within their control . . . to protect and enforce” their statutory rights. Id. at 190. In other words, “absence of jurisdiction of the federal courts would mean a sacrifice or obliteration of a right which Congress has given professional employees.” Id. In conclusion, the Court stated it “cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers.” Id.

         MCorp Fin., Inc., relied on by Defendants, involved an express bar on judicial review, and the Court found the Fifth Circuit erred when it held that it had jurisdiction to consider the merits of MCorp's challenge to the Board of Governors of the Federal Reserve System (“Board”) and held that the Financial Institutional Supervisory Act's (“FISA”) preclusion provision barred judicial review of pending Board administrative actions. MCorp Fin., Inc., 502 U.S. at 43-44.

         In its analysis, the Court distinguished its ruling from Kyne noting two differences. First, the Court noted that “central” to its decision in Kyne was “the fact that the Board's interpretation of the Act would wholly deprive the union of a meaningful and adequate means of vindicating its statutory right.” Id. at 43. In MCorp. Fin., Inc., FISA provided MCorp with a meaningful and adequate opportunity for judicial review by challenging the Board's findings. Id. at 43-44. Second, the Court emphasized “the clarity of the congressional preclusion of review in FISA” where Congress clearly stated: “no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any [Board] notice or order under this section, or to review, modify, suspend, terminate, or set aside any such notice or order.” Id. at 44 (quoting 12 U.S.C. § 1818(i)(1)). In Kyne, the statutory provision implied, by its silence, a preclusion of review. Id. In contrast, FISA provides “clear and convincing evidence that Congress intended to deny the district court's jurisdiction to review and enjoin the Board's ongoing administrative proceedings.” Id. The Court reversed the decision by the Fifth Circuit and held that it did not have jurisdiction to consider MCorp's challenge. Id. at 44-45.

         Next, in Dart, relied on by Plaintiffs, the D.C. Circuit held that the Secretary of Commerce's reversal of the administrative law judge's decision exceeded his authority under the Export Administration Act (“EAA”). Dart, 848 F.2d at 231. The EAA provides two finality clauses that certain “functions exercised under the Act” were excluded from certain sections of the APA and the “Secretary shall, in a written order, affirm, modify, or vacate the decision of the administrative law judge. The order of the Secretary shall be final and is not subject to judicial review.” Id. at 221. Because the Secretary did not “affirm, modify or vacate” the ALJ's decision but instead reversed, it was not among the orders placed beyond review of the finality provision. Id. at 227. The D.C. Circuit held that review is available when the Secretary exercises functions that are not specified in the statute. Id. at 221. In explaining its ruling, it stated the even “where Congress is understood generally to have precluded review, the Supreme Court has found an implicit but narrow exception, closely paralleling the historic origins of judicial review for agency actions in excess of jurisdiction.” Id. The court's analysis focused on the plain language of the statute, the structure of the statutory scheme, the legislative history, and the nature of the administrative action involved. Id. at 224-27. It concluded that the presumption of judicial review applied in that case, explaining that the finality clause did not preclude judicial review of facial violations of the statute. Id. at 222 (citing Kyne, 358 U.S. 184).

         The Dart court recognized that “[w]hen an executive acts ultra vires, courts are normally available to reestablish the limits on his authority.” Id. at 224. However, the court noted that the “exception for review of facial violations should remain narrow.” Id. at 231. It also explained that “Congress' finality clause must be given effect, and an agency action allegedly ‘in excess of authority' must not simply involve a dispute over statutory interpretation or challenged findings of fact.” Id. The court recognized that invoking the exception is “extraordinary” noting “that to justify such jurisdiction, there must be a ‘specific provision of the Act which, although it is [ ]clear and mandatory, [ ]' was nevertheless violated.” Id. (quoting Council of Prison Locals v. Brewer, 735 F.2d 1497, 1501 (D.C. Cir. 1984) (citation omitted)). The court in Dart concluded that the “requirement that the Secretary of Commerce ‘affirm, modify or vacate' ALJ enforcement decisions was ‘clear and mandatory' and was nevertheless violated.” Id.

         The exception to the statutory bar on judicial review is an “extremely narrow one” and “extraordinary.” Nat'l Air Traffic Controllers Ass'n AFL-CIO v. Fed. Serv. Impasses Panel, 437 F.3d 1256, 1263 (D.C. Cir. 2006); American Airlines, Inc. v. Herman, 176 F.3d 283, 293 (5th Cir. 1999) (courts “have interpreted Kyne as sanctioning [review] in a very narrow situation in which there is a ‘plain' violation of an unambiguous and mandatory provision of the statute.”). The D.C. Circuit described that a Kyne claim is “essentially a Hail Mary pass-and in court as in football, the attempt rarely succeeds.” Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009).

         In sum, in order for the Kyne exception to apply, a plaintiff must satisfy the following two factors: 1) that the agency acted “in excess of its delegated powers” contrary to “clear and mandatory statutory language” and 2) “the party seeking review must be ‘wholly deprive[d] . . . of a meaningful and adequate means of vindicating its statutory rights.” Pac. Mar. Ass'n v. NLRB, 827 F.3d 1203, 1208 (9th Cir. 2016) (citations omitted); Nat'l Air Traffic Controllers, 437 F.3d at 1263 (the Kyne exception can apply to cases involving “either negative or positive statutory commands.”).

         Courts have cautioned that “review of an ‘agency action allegedly in excess of authority must not simply involve a dispute over statutory interpretation.'” Herman, 176 F.3d at 293 (quoting Kirby Corp. v. Pena, 109 F.3d 258, 269 (5th Cir. 1997)); Dart, 848 F.2d at 231 (noting that facial challenges to agency action as allegedly “‘in excess of authority' must not simply involve a dispute over statutory interpretation or challenged findings of fact.”); see also Nebraska State Legislative Bd., United Transp. Union v. Slater, 245 F.3d 656, 659-60 (8th Cir. 2001). For example, in Baxter Healthcare Corp. v. Weeks, 643 F.Supp.2d 111 (D.D.C. 2009), the court explained that Health and Human Services (“HHS”) has the “authority under the Medicare statute to determine whether a product is a single source drug, a biological, or a multiple source drug.” Id. at 115 n. 2. Whether HHS made the correct determination about [the drug] is a “dispute over statutory interpretation” that does not rise to the level of an ultra vires claim.” Id.

         Contrary to Defendants' argument that the Court cannot even consider whether the two Waivers were ultra vires acts, courts have consistently conducted judicial review of facial, ultra vires claims despite a statutory bar on judicial review.[12] See Lindahl v. OPM, 470 U.S. 768, 789, 791 (1985) (statutory bar did not bar review of alleged errors of law or procedure but it did bar review of factual determinations); Dart, 848 F.2d at 225; Staacke v. U.S. Sec'y of Labor, 841 F.2d 278, 281 (9th Cir. 1988) (noting review is available “where defendant is charged with violating a clear statutory mandate or prohibition” even where a statute “absolutely bars judicial review”); Oestereich v. Selective Serv. Sys. Local Bd. No. 11, 393 U.S. 233 (1968) (despite an express preclusion of pre-induction review, the Court reversed the plaintiff's draft classification); Spencer Enters., Inc. v. United States, 345 F.3d 683, 689 (9th Cir. 2003) (courts retain jurisdiction to review whether a particular decision of the Attorney General is ultra vires despite the discretion granted to the Attorney General).

         Even the cases relied upon by Defendants fail to support their position. In Staacke, the Ninth Circuit stated that on a claim that the defendant violated a clear statutory mandate or prohibition, the court may consider the claim despite a judicial bar but its “task is limited to determining whether the statute in question contains a clear command that the Secretary has transgressed.” Staacke, 841 F.2d at 282. After determining there was no violation of a clear statutory mandate, the Ninth Circuit upheld the bar on judicial review. Id. Similarly, in Gebhardt v. Nielson, 879 F.3d 980, 989 (9th Cir. 2018), the Ninth Circuit affirmed a judgment of the district court, which dismissed an action based on a judicial bar on the Secretary's discretion in making “no risk” determinations. Id. at 989. The Secretary of DHS denied the plaintiff's petitions for permanent resident status filed on behalf of his wife and his wife's three children pursuant to the Adam Walsh Child Protection and Safety Act of 2006 based on the plaintiff's prior state conviction for committing a “lewd and lascivious act with a child under the age of fourteen.” Id. at 983- 84. The Ninth Circuit stated that it may review the plaintiff's claims to the extent he challenged the scope of the Secretary's discretion. Id. After determining that the claimed action did not exceed the Secretary's discretion, the Ninth Circuit, upheld the judicial bar on the Secretary's discretionary “no risk” determination. Id. at 5. These cases demonstrate that the Court may consider whether there has been a plain violation of an unambiguous and mandatory provision of law despite a statutory bar on judicial review.

         The Court concludes that it may conduct judicial review of facial, ultra vires claims despite a statutory bar on judicial review. Accordingly, the Court next considers whether the Secretaries acted in excess of their delegated powers.

         D. Whether the Waiver Determinations Are Ultra Vires Acts under Section 102(c)'s Waiver Authority

          Defendants contend that the DHS Secretaries' actions are ultra vires only if they are in excess of delegated powers that are contrary to “clear and mandatory” statutory language as required in Kyne.[13] Plaintiffs reply that the Kyne line of cases do not apply and, instead, the Dart test applies so that the government has the burden to show “clear and convincing” evidence that Congress foreclosed its jurisdiction over their case. Dart, 848 F.3d at 224. However, Plaintiffs are confusing the standard that is required to overcome the presumption that Congress intends judicial review of administrative actions, a “clear and convincing” standard, with the “clear and mandatory” statutory language requirement for application of the Kyne exception to the statutory bar of judicial review. In fact, the court in Dart applied the Kyne test when it held that the Secretary of Commerce facially violated a specific provision of the EAA which was “clear and mandatory.” Dart, 848 F.2d at 231. An agency's action is ultra vires if it contravenes “clear and mandatory” statutory language. Pac. Mar. Ass'n, 827 F.3d at 1208 (quoting Kyne, 358 U.S. at 188); Dart, 848 F.2d at 231; Staacke, 841 F.2d at 281. In order to make that determination, courts look to the language of the statute and its legislative history. See Int'l Ass'n of Tool Craftsmen v. Leedom, 276 F.2d 514, 516 (D.C. Cir. 1960) (“statutory language itself and the legislative history” support invoking district court's equity jurisdiction to consider whether Board violated a “clear and mandatory” statutory prohibition); Teamsters, Chauffeurs, Helpers and Delivery Drivers, Local 690 v. NLRB, 375 F.2d 966, 971 (9th Cir. 1967) (a court looks to statutory text and legislative history to determine if the Board violated a “clear and mandatory” statutory provision).

         Here, in order for the narrow exception of Kyne to apply, Plaintiffs must show that Secretaries Kelly and Duke acted in excess of their delegated powers by showing that the issuance of the two Waiver Determinations was in contravention of “clear and mandatory” language contained in section 102. See Pac. Mar. Ass'n, 827 F.3d at 1208; Dart, 848 F.2d at 222 (The question “whether an agency has acted ‘in excess of its delegated powers' has alternatively been phrased as whether the agency action ‘on its face' violated a statute.”). Plaintiffs must also show that barring judicial review would deprive them of a “meaningful and adequate means of vindicating [their] statutory rights.” Id.

         1.Violation of a “Clear and Mandatory” ...


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