Supplemental Brief For Appellees - Texas v. United States

Case: 15-40238
Document: 00513085005
Page: 1
Date Filed: 06/18/2015
No. 15-40238
In the United States Court of Appeals for the Fifth Circuit

State of Texas; State of Alabama; State of Georgia; State of Idaho; State of
Indiana; State of Kansas; State of Louisiana; State of Montana; State of
Nebraska; State of South Carolina; State of South Dakota; State of Utah;
State of West Virginia; State of Wisconsin; Paul R. LePage, Governor, State
of Maine; Patrick L. McCrory, Governor, State of North Carolina; C.L.
Butch Otter, Governor, State of Idaho; Phil Bryant, Governor, State of
Mississippi; State of North Dakota; State of Ohio; State of Oklahoma; State
of Florida; State of Arizona; State of Arkansas; Attorney General Bill
Schuette; State of Nevada; State of Tennessee, Plaintiffs-Appellees,
v.
United States of America; Jeh Charles Johnson, Secretary, Department of

Homeland Security; R. Gil Kerlikowske, Commissioner of U.S. Customs and
Border Protection; Ronald D. Vitiello, Deputy Chief of U.S. Border Patrol,
U.S. Customs and Border Protection; Sarah R. Saldaa, Director of U.S.
Immigration and Customs Enforcement; Len Rodrguez, Director of U.S.
Citizenship and Immigration Services, Defendants-Appellants.
On Appeal from the United States District Court for the
Southern District of Texas, Brownsville, No. 1:14-cv-254 (Hanen, J.)
S U P P LE MEN TA L B R IEF F OR A P PE L LEE S

Ken Paxton
Attorney General
Scott A. Keller
Solicitor General
Charles E. Roy
First Assistant Attorney General
J. Campbell Barker
Matthew H. Frederick
Deputy Solicitors General
Office of the Attorney General

209 W. 14th Street
Austin, Texas 78711-2548
(512) 936-1700 tel.
(512) 474-2697 fax
April L. Farris
Alex Potapov
Assistant Solicitors General
Counsel for Plaintiffs-Appellees
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Table of Contents
Page
Table of Authorities ......................................................................................ii
I.
The Court Has Resolved the Issues Necessary to Decide This
Appeal. ............................................................................................... 1
A.
Materially Identical Issues Arise in Deciding Whether to
Maintain the Preliminary Injunction (1) During this
Appeal and (2) During the Rest of this Case. ............................ 1
B.
The Court Fully Addressed Those Issues. ................................ 3
C.
The Courts Rulings Have Binding Force. ................................ 5
1.
The panels published opinion sets circuit
precedent. ....................................................................... 5
2.
The panels holdings are law of the case. ........................8
II.
The Court Resolved The Issues Correctly. .........................................9
A.
The Court Correctly Ruled that Plaintiffs Were Likely to
Succeed on the Merits. ........................................................... 10
1.
Standing........................................................................ 10
2.
APA reviewability. ........................................................ 12
3.
Notice-and-comment claim........................................... 14
4.
Substantive claims. ....................................................... 15
B.
The Court Correctly Determined that DAPAs
Irreversibility and the Balance of Harms Favor
Maintaining the Status Quo. ................................................... 17
C.
The Court Correctly Rejected the Executives Belated
Attempt to Narrow the Injunctions Scope. ............................ 17
III. The Dissents Reasoning Is Misguided. ............................................ 18
A.
The Dissent Wrongly Concluded that DAPA Is
Unreviewable Inaction ............................................................ 18
B.
The Dissents Criticism Regarding Plaintiffs Standing
Lacks Force ............................................................................ 23
C.
The Dissent Incorrectly Concluded that DAPA Did Not
Require Notice and Comment ................................................ 23
Conclusion .................................................................................................. 29
Certificate of Service................................................................................... 32
Certificate of Compliance ........................................................................... 33
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Table of Authorities
Page(s)
Cases:
Am. Mining Cong. v. Mine Safety & Health Admin.,
995 F.2d 1106 (D.C. Cir. 1993) .......................................................... 25
Arizona v. United States,
132 S. Ct. 2492 (2012) ...................................................................... 24
Berger v. Heckler,
771 F.2d 1556 (2d Cir. 1985) .............................................................. 21
Camacho v. Tex. Workforce Commn,
445 F.3d 407 (5th Cir. 2006) ...............................................................5
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) ........................................................................... 14
EEOC v. Neches Butane Prods. Co.,
704 F.2d 144 (5th Cir. 1983)................................................................7
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .......................................................................... 16
Fischer v. DOJ,
759 F.2d 461 (5th Cir. 1985) (per curiam)............................................7
Gen. Elec. Co. v. EPA,
290 F.3d 377 (D.C. Cir. 2002).......................................................... 28
Hamdan v. Rumsfeld,
548 U.S. 557 (2006) .......................................................................... 21
Heckler v. Chaney,
470 U.S. 821 (1985).................................................... 12, 13, 18, 20, 22
In re A&F Enterprises, Inc. II,
742 F.3d 763 (7th Cir. 2014) ............................................................... 2
In re Multiponics, Inc.,
622 F.2d 709 (5th Cir. 1980) .............................................................. 4
Johnson v. Burken,
930 F.2d 1202 (7th Cir. 1991) ..............................................................7
Lair v. Bullock,
__ F.3d __, 2015 WL 3377841 (9th Cir. May 26, 2015) ..................... 6
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Lambert v. Blackwell,
134 F.3d 506 (3d Cir. 1997) ................................................................ 8
Lewis v. Thompson,
252 F.3d 567 (2d Cir. 2001)............................................................... 21
M.K.B. v. Eggleston,
445 F. Supp. 2d 400 (S.D.N.Y. 2006) ............................................... 21
Mattern v. Eastman Kodak Co.,
104 F.3d 702 (5th Cir. 1997) ............................................................ 7, 8
McClain v. Seaboard Coast Line R.R. Co.,
490 F.2d 863 (5th Cir. 1974) (per curiam) ...........................................5
McLouth Steel Prods. Corp. v. Thomas,
838 F.2d 1317 (D.C. Cir. 1988) ......................................................... 28
Miller v. Gammie,
335 F.3d 889 (9th Cir. 2003) (en banc) ............................................... 6
Morton v. Ruiz,
415 U.S. 199 (1974) ........................................................................... 14
Natl Mining Assn v. McCarthy,
758 F.3d 243 (D.C. Cir. 2014) ........................................................... 25
NCAA v. Governor of N.J.,
730 F.3d 208 (3d Cir. 2013) ............................................................... 12
Northshore Dev., Inc. v. Lee,
835 F.2d 580 (5th Cir. 1988) ...............................................................7
NRDC v. EPA,
643 F.3d 311 (D.C. Cir. 2011) ............................................................ 14
Ohio Republican Party v. Brunner,
543 F.3d 357 (6th Cir. 2008) .............................................................. 2
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,
734 F.3d 406 (5th Cir. 2013)............................................................... 6
Pennsylvania v. New Jersey,
426 U.S. 660 (1976) (per curiam) ..................................................... 11
Profls & Patients for Customized Care v. Shalala,
56 F.3d 592 (5th Cir. 1995) ............................................................... 28
Samaad v. City of Dallas,
922 F.2d 216 (5th Cir. 1991) ................................................................5
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Smart v. Shalala,
9 F.3d 921 (11th Cir. 1993) (per curiam) ....................................... 21-22
Stifel, Nicolaus & Co., Inc. v. Woolsey & Co., Inc.,
81 F.3d 1540 (10th Cir. 1996) ............................................................. 8
Texas v. United States,
__ F.3d __, No. 15-40238, 2015 WL 3386436
(5th Cir. May 26, 2015) .............................................................. passim
U.S. Tel. Assn v. FCC,
28 F.3d 1232 (D.C. Cir. 1994) .......................................................... 28
United States v. Bear Marine Servs.,
696 F.2d 1117 (5th Cir. 1983) ........................................................... 7, 8
United States v. Clark,
480 F.2d 1249 (5th Cir. 1973) ............................................................. 4
United States v. Mallis,
467 F.2d 567 (3d Cir. 1972) (per curiam)........................................... 18
United States v. Orellana,
405 F.3d 360 (5th Cir. 2005) ........................................................ 19-20
United States v. Short,
181 F.3d 620 (5th Cir. 1999) ................................................................5
Veasey v. Perry,
769 F.3d 890 (5th Cir. 2014) .............................................................. 2
Voting for Am., Inc. v. Andrade,
488 F. Appx 890 (5th Cir. 2012) .................................................... 2, 6
Whitman v. Am. Trucking Assocs., Inc.,
531 U.S. 457 (2001) ........................................................................... 16
Whole Womans Health v. Cole,
__ F.3d __, 2015 WL 3604750 (5th Cir. June 9, 2015)
(per curiam) ....................................................................................... 8
Whole Womans Health v. Lakey,
769 F.3d 285 (5th Cir. 2014) .............................................................. 6
Wyoming v. Oklahoma,
502 U.S. 437 (1992)........................................................................... 11
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ........................................................................... 21
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Zdanok v. Glidden Co., Durkee Famous Foods Div.,

327 F.2d 944 (2d Cir. 1964)................................................................ 9
Zivotofsky ex rel. Zivotofsky v. Kerry,
No. 13-628, 2015 WL 2473281 (U.S. June 8, 2015)............................ 16
Constitutional provisions, statutes, and rules:
U.S. CONST., Art. I, 8 ............................................................................... 16
6 U.S.C. 202(5) ........................................................................................ 13
8 U.S.C. 1103(a)(3) .................................................................................. 13
8 U.S.C. 1103(g)(2) .................................................................................. 13
8 U.S.C. 1201(i) ...................................................................................... 22
8 U.S.C. 1227(a)(1)(B) ............................................................................ 22
8 U.S.C. 1252(g) ...................................................................................... 13
8 U.S.C. 1255 .......................................................................................... 20
8 U.S.C. 1255(c)(2) ................................................................................. 20
8 U.S.C. 1324a(h)(3) ................................................................................ 16
8 U.S.C. 1611(b)(2)-(4) ............................................................................ 21
28 U.S.C. 1292(b) ......................................................................................7
28 U.S.C. 46 ..............................................................................................5
8 C.F.R. 245.1(d)(1) ................................................................................ 20
5th Cir. R. 47.5.1 ....................................................................................... 5, 6
5th Cir. R. 47.5.4 .......................................................................................... 6
11th Cir. R. 27-1(g) ....................................................................................... 6
Other Authorities:
The White House, Remarks by President Obama in Press
Conference after G7 SummitKrun, Germany (June 8,
2015), https://www.whitehouse.gov/the-pressoffice/2015/06/08/remarks-president-obama-pressconference-after-g7-summit .............................................................. 21
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I. The Court Has Resolved the Issues Necessary to Decide

This Appeal.
Materially identical issues arise in deciding whether to maintain a
preliminary injunction during an appeal of that injunction and during the rest
of the case. The stay panel fully addressed these issues. Its decision is binding
circuit precedent because it is published, and it is law of the case because the
Court considered extensive briefing and oral argument.
A. Materially Identical Issues Arise in Deciding Whether

to Maintain the Preliminary Injunction (1) During this
Appeal and (2) During the Rest of this Case.
Defendants ask this Court to reverse the preliminary injunction. To
prevail, Defendants must demonstrate that the district court abused its
discretion in weighing four factors:
(1) Plaintiffs likelihood of success in enjoining DAPA;
(2) the extent of any harm to Plaintiffs during the case;
(3) the extent of any harm to Defendants during the case; and
(4) the public interest.
See Appellees Br. (States Br.) 15.
Defendants did not wait for a merits panel to address their arguments on
these points. Rather, as is their right, Defendants moved for this Court to
allow DAPA to be implemented even before this appeal concludes. Stay Mot.
1. That motion to stay the injunction turned on the following factors:
(1) Defendants likelihood of reversing the preliminary injunction of
DAPA;
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(2) the extent of any harm to Defendants during the appeal;

(3) the extent of any harm to Plaintiffs during the appeal; and
(4) the public interest.
See Texas v. United States, __ F.3d __, No. 15-40238, 2015 WL 3386436, at
*2 (5th Cir. May 26, 2015) (hereinafter Op.).
The stay factors therefore mirror the issues in this appeal: The factors
to be considered in deciding whether to stay an order pending appeal are
virtually the same as the factors used by a court in deciding whether to issue a
preliminary injunction. Voting for Am., Inc. v. Andrade, 488 F. Appx 890,
893 (5th Cir. 2012); see Veasey v. Perry, 769 F.3d 890, 893 n.1 (5th Cir. 2014).
Other circuits agree that [t]he standard for granting a stay pending appeal
mirrors that for granting a preliminary injunction. In re A&F Enterprises, Inc.
II, 742 F.3d 763, 766 (7th Cir. 2014); accord, e.g., Ohio Republican Party v.
Brunner, 543 F.3d 357, 361 (6th Cir. 2008).
There is a slight temporal difference: A stay pending appeal lifts the
injunction during the appeal, whereas a reversal lifts the injunction for the rest
of the case. This difference does not necessarily entail different legal or factual
arguments, however, and Defendants did not make any. In both their moving
papers and briefing, Defendants deployed a full arsenal of argumentation. On
the likelihood-of-success factor, they addressed reviewability, standing, and
notice-and-comment requirements. Stay Mot. 9-16; Appellants Br. (DOJ
Br.) 19-50. And their discussion of irreparable harm consistently referred to
harms over the life of the case. E.g., Stay Mot. 18; DOJ Br. 52. Their public-
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interest and injunction-scope arguments also remained similar. Stay Mot. 1820; DOJ Br. 51-56.
B. The Court Fully Addressed Those Issues.

As required by the stay motion, this Court addressed Defendants
arguments on each of the four factors, resolving each legal and factual
argument necessary to rule that the injunction should be maintained. Those
are the same arguments that Defendants make for reversing the preliminary
injunction; Defendants did not raise any issues specific to the appeal and not
the stay motion. Accordingly, this Court resolved Defendants arguments as
to:
the criteria for standing (Op.*2-7);
whether Plaintiffs likely showed a threatened injury-in-fact (Op.*3);
whether that injury can be dismissed as self-inflicted (Op.*4);
whether that injury can be dismissed on an offset theory (Op.*4-5);
whether Plaintiffs likely demonstrated the injury is traceable to the
challenged action (Op.*5-7);
whether Plaintiffs likely showed redressability (Op.*7);
whether Plaintiffs satisfy the zone-of-interests test (Op.*7);
whether judicial review is precluded, including by statutory implication
or because DAPA is merely an exercise of prosecutorial discretion
(Op.*8-11);
whether DAPA required notice and comment under the Administrative
Procedure Act (Op.*12-14);
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whether Defendants would be irreparably injured by maintaining the

injunction (Op.*15);
whether Plaintiffs would suffer substantial injury if DAPA is
implemented before a final merits judgment (Op.*15);
whether the injunction is contrary to the public interest (Op.*15); and
whether the scope of the preliminary injunction is improper (Op.*16).
In resolving all of those issues, the Court was not constrained by limited
factual development; it relied on the complete record on appeal.
Defendants may note that their stay motion required them to make a
strong showing that they are likely to succeed on the merits, Op.*2,
whereas Plaintiffs had the burden in district court to show their entitlement to
a preliminary injunction. But, in assessing Plaintiffs likelihood of success on
the merits, the Court made its legal conclusions de novo. And, on appeal, it is
Defendants who must show that the district court abused its discretion in
weighing the relevant factors and crafting a preliminary injunction, including
that the district court clearly erred in any disputed factual finding. See States
Br. 15. The abuse-of-discretion and clear-error standards of review themselves
require the same sort of strong showing that Defendants stay motion
requires. See, e.g., In re Multiponics, Inc., 622 F.2d 709, 723 (5th Cir. 1980)
(The burden is squarely on the appellant to show an appellate court that a
finding is clearly erroneous . . . .); United States v. Clark, 480 F.2d 1249, 1252
(5th Cir. 1973) (an appellant must carry the difficult burden of showing that
the trial court abused its discretion).
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In short, Defendants stay motion presented this Court with the occasion
to decide every issue necessary to resolve this appeal, and the Court issued a
lengthy published opinion doing so. The Courts resolution of these issues is
correct, as explained below in Part II. But there is no need to reconsider these
rulings, as the Courts decision sets circuit precedent and law of the case.
C. The Courts Rulings Have Binding Force.

1. The panels published opinion sets circuit precedent.
Published opinions by a three-judge panel set binding law of the circuit:
Published panel opinions are ordinarily binding on subsequent panels.
Camacho v. Tex. Workforce Commn, 445 F.3d 407, 411 (5th Cir. 2006); see,
e.g., Samaad v. City of Dallas, 922 F.2d 216, 219 & n.2 (5th Cir. 1991)
(collecting cases); United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999)
(noting that a panel is bound by the precedent of previous panels absent an
intervening Supreme Court case explicitly or implicitly overruling that prior
precedent.). If a party or a panel believes that a published opinion by a
previous three-judge panel is erroneous, then the remedy [is] to seek en banc
consideration rather than to ask one panel of the court to set aside the ruling
of another panel. McClain v. Seaboard Coast Line R.R. Co., 490 F.2d 863, 864
n.3 (5th Cir. 1974) (per curiam); see 28 U.S.C. 46.
The stay panel here published its opinion, and properly so. This Courts
rules state that opinions should be published when they may in any way
interest persons other than the parties to a caseas this opinion selfevidently does. 5th Cir. R. 47.5.1. The opinion fits several of the rules specific
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criteria requiring publication, in that it (b) Applies an established rule of law

to facts significantly different from those in previous published opinions
applying the rule; (c) Explains, criticizes, or reviews the history of existing
decisional or enacted law; and (e) Concerns or discusses a factual or legal
issue of significant public interest. Id. The rule also allows (but does not
require) publication of opinions, like this one, which are accompanied by
a... dissenting opinion. Id.
Nothing in this Courts rules prohibits publication of a motions-panel
opinion, or strips such opinions of precedential force. See id.; cf. 11th Cir. R.
27-1(g). The Ninth Circuit likewise allows motions panels [to] issue
published decisions, and it has recognized that a motions panels published
opinion binds future panels the same as does a merits panels published
opinion. Lair v. Bullock, __ F.3d __, 2015 WL 3377841, at *7 (9th Cir. May
26, 2015). This practice preserve[s] the consistency of circuit law and
recognizes that en banc review is the proper mechanism for overruling any
three-judge panels published decision. Miller v. Gammie, 335 F.3d 889, 900
(9th Cir. 2003) (en banc).
In contrast, a motions panels unpublished decision is not binding on the
merits panel or any other paneljust like other unpublished decisions. See 5th
Cir. R. 47.5.4. Accordingly, no binding precedent is created when a motions
panel does not publish its decision or disclaims any intent to bind the merits
panel. See, e.g., Whole Womans Health v. Lakey, 769 F.3d 285, 305 (5th Cir.
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2014); Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734
F.3d 406, 419 (5th Cir. 2013); Voting for Am., 488 F. Appx at 893.
This Court has noted that a merits panel has authority to overturn a
motions panels ruling where the motions panel had not published a
precedential decision. See Northshore Dev., Inc. v. Lee, 835 F.2d 580, 583 (5th
Cir. 1988) (the motions panel did not assign any reasons for its decision in an
opinion); Fischer v. DOJ, 759 F.2d 461, 463 (5th Cir. 1985) (per curiam)
(motions panel did not file an opinion assigning reasons for its decision);
see, e.g., Mattern v. Eastman Kodak Co., 104 F.3d 702, 704 (5th Cir. 1997);
EEOC v. Neches Butane Prods. Co., 704 F.2d 144, 147 (5th Cir. 1983); United
States v. Bear Marine Servs., 696 F.2d 1117, 1119 (5th Cir. 1983). This situation
frequently arises when a merits panel reconsiders a motions panels decision
to permit an interlocutory appeal under 28 U.S.C. 1292(b). See, e.g., id. In
such cases, the motions panels procedures are summary in character, made
often on a scanty record, and not entitled to the weight of a decision made after
plenary submission. Johnson v. Burken, 930 F.2d 1202, 1205 (7th Cir. 1991).
But this Court has never held that merits panels can choose to treat
published decisions of motions panels as non-precedential. Any such rule
would be an unnecessary drain on judicial resources. When a three-judge
panel expends significant time and effort considering certain legal issuesby
taking extensive briefing, holding lengthy oral argument, and publishing a
thorough opinionthat decision is treated as precedent to maintain the
consistency of circuit law and conserve the resources of future panels.
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Of course, most motions-panel decisions will not warrant extensive

consideration, and those decisions will remain unpublishedif reasons are
given at all. But when a motions panel is called upon to analyze and resolve
weighty legal issues of national importance, circuit rulesand common
sensedictate that the panel will publish a precedential ruling to prevent
unnecessary duplication of effort. The stay panels published opinion here
sets circuit precedent and binds future three-judge panels.
2. The panels holdings are law of the case.
Even if a panels decision does not set circuit precedent, it may still
establish law of the case. Unlike the law-of-the-circuit doctrine, the law-ofthe-case doctrine is discretionary and turns on whether the prior ruling was
abbreviated, tentative, or deserving of reconsideration for a similar reason.
See, e.g., Mattern, 104 F.3d at 704.
The stay panels ruling here sets law of the case by any conceivable
measure. Unlike many motions panels, the panel here ha[d] the benefit of
full briefs and . . . oral argument. Bear Marine, 696 F.2d at 1119, cited in
Mattern, 104 F.3d at 704. Cf. Whole Womans Health v. Cole, __ F.3d __, 2015
WL 3604750, at *12 (5th Cir. June 9, 2015) (per curiam) (merits panel not
bound by motions panel that only had an abbreviated proceeding); Lambert
v. Blackwell, 134 F.3d 506, 512 n.17 (3d Cir. 1997) (stay panel decision not
binding when it was based on a record less complete . . . and not reached after
the opportunity for the intensive study available to a merits panel); Stifel,
Nicolaus & Co., Inc. v. Woolsey & Co., Inc., 81 F.3d 1540, 1544 (10th Cir. 1996)
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([A] motions panels decision is often tentative because it is based on an

abbreviated record and made without the benefit of full briefing and oral
argument.).
Due to the expedited briefing schedule sought by Defendants in this
appeal, the stay panel was able to consider not only the motions briefing and
full factual record, but also the merits briefing, a court-ordered supplemental
brief preceding oral argument, over two hours of oral argument, and all of the
amicus briefing. See, e.g., Op.*1 nn.9, 10, 12 (discussing merits briefing); Op.*6
n.40 (noting two-hour-plus oral argument). The thoroughness of that review
is borne out in the extensively footnoted 42-page slip opinion and the
corresponding 26-page dissent.
As Judge Friendly recognized, where litigants have once battled for the
courts decision, they should neither be required, nor without good reason
permitted, to battle for it again. Zdanok v. Glidden Co., Durkee Famous Foods
Div., 327 F.2d 944, 953 (2d Cir. 1964). Defendants moved for a stay pending
appeal, as was their right, and their motion presented every disputed issue in
the appeal. Practicality and efficiency require treating the Courts rulings on
those issues as law of the case.
II. The Court Resolved The Issues Correctly.

Because the stay panel correctly resolved the issues it addressed, its
decision enjoys persuasive force in addition to binding force.
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A. The Court Correctly Ruled that Plaintiffs Were Likely

to Succeed on the Merits.
In arguing that Plaintiffs have no substantial likelihood of success on the
merits, Defendants raise three issues: (1) standing, DOJ Br. 19-32; (2)
reviewability, DOJ Br. 20-22, 33-36, and (3) notice and comment, DOJ Br. 3650. The stay panels rulings on each issue are correct.
1. Standing (Op.*2-7).
a. Plaintiffs identified three separate ways in which they have standing.
The Court reached only the first basis for standingthe drivers license
rationalebecause it is dispositive. Op.*2. As the Court explained, At least
one stateTexasis likely to satisfy all three requirements for standing on
that ground. Op.*7. The first requirement [of a concrete injury] is likely
satisfied by Texass proof of the costs of issuing drivers licenses to DAPA
beneficiaries. Op.*3. On the second requirement, of causation,
Massachusetts v. EPA establishes... that Texass injury is sufficiently
traceable. Op.*5. And the third requirement, redressability, is easily met
here. Op.*7.
The Court correctly rejected Defendants argument (DOJ Br. 27-29) that
this injury could be dismissed as self-inflicted. Op.*3-4. The Court held that
an injury would exist even assuming that Plaintiffs could avoid the costs by
modifying their drivers-license programs:
The flaw in the governments reasoning is that Texass forced
choice between incurring costs and changing its fee structure is
itself an injury. A plaintiff suffers an injury even if it can avoid
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that injury by incurring other costs. And being pressured to

change state law constitutes an injury.
Op.*3. The Court therefore distinguished Pennsylvania v. New Jersey, 426
U.S. 660 (1976) (per curiam), noting that because Texas does not have the
level of choice the plaintiffs in Pennsylvania enjoyed, its injury is not selfinflicted. Op.12 n.34; id. (discussing the later, controlling decision in
Wyoming v. Oklahoma, 502 U.S. 437 (1992)).
The Court also properly rejected Defendants argument that standing
could be negated by supposed offsetting benefits. DOJ Br. 29-31. An offset
analysis, the Court explained, is appropriate, if at all, where the costs and
benefits are of the same type and arise from the same transaction because the
plaintiff has suffered no real injury. Op.*4. The Court therefore joined the
consensus of other circuits in declin[ing] to consider offsetting benefits of
different types or from different transactions. Op.*4 & n.35. Here, [m]ost
of the benefits the government cites ... are wholly separate from the costs of
issuing licenses. Op.*5. And those that are more closely associated with the
costs of issuing licenses still do not arise from the same transaction.
Op.*5.
b. The Courts rejection of this offsetting-benefits argument necessarily
entails that Plaintiffs also have standing based on their financial injuries
regarding education, healthcare, and law enforcement. States Br. 33-37. The
district court made all the findings necessary for standing on this basis, and it
denied standing on this ground only under an offsetting-benefits theory that
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has now been repudiated by this Court. Id. None of the purported offsetting
benefits, Op.*5, are of the same type and aris[ing] from the same
transaction as Plaintiffs education, healthcare and law enforcement costs.
Op.*4. Accordingly, even if those alleged benefits were not speculative (see
States Br. 37), they could not defeat standing.
Standing is not an accounting exercise. NCAA v. Governor of N.J., 730
F.3d 208, 223 (3d Cir. 2013), cited in Op.*4 n.35. And it should not be:
attempting to balance all costs and benefits associated with a challenged
policy would leave plaintiffs without standing to challenge legitimate
injuries. Op.*4.
2. APA reviewability (Op.*8-11).
a. The stay panels rulings confirm that Plaintiffs are likely to demonstrate
that DAPA is reviewable under the APA. Most importantly, the Court
recognized that DAPA was affirmative government action, reviewable under
Heckler v. Chaney, 470 U.S. 821 (1985):
If [not enforcing immigration laws] were all DAPA involved, we
would have a different case. DAPAs version of deferred action,
however, is more than nonenforcement: It is the affirmative act
of conferring lawful presence on a class of unlawfully present
aliens. Though revocable, that new designation triggers eligibility
for federal and state benefits that would not otherwise be
available.
Op.*9.
The Court rejected the Executives repeated assertions that DAPA
involves only a decision to defer prosecution or an enforcement
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determination. DOJ Br. 20, 35. To the contrary, [d]eclining to prosecute

does not convert an act deemed unlawful by Congress into a lawful one and
confer eligibility for benefits based on that new classification. Op.*9.
[I]ssuing work authorizations to DAPA beneficiaries is an affirmative
action, as is the designation of lawful presence itself. Op.*11. This lawsuit
does not challenge the decision not to remove any particular alien: The
preliminary injunction does not require the Secretary to deport any alien or to
alter his enforcement priorities, and the states have not challenged the priority
levels he has established. Op.*9 n.61. In short, DAPA is an action that
can be reviewed to determine whether the agency exceeded its statutory
powers. Op.*10 (internal quotation marks omitted).
The Court also rejected the argument (DOJ Br. 34-35) that Congresss
delegation of power regarding certain immigration matters was broad enough
to encompass DAPAs conferral of lawful presence, work-permit eligibility,
and eligibility for other benefits on over four million unauthorized aliens. As
the Court held, we do not construe the broad grants of authority in 6 U.S.C.
202(5), 8 U.S.C. 1103(a)(3), or 1103(g)(2) as assigning unreviewable
decisions of vast economic and political significance to an agency. Op.*11
(footnotes and internal quotation marks omitted).
b. In addition to rejecting Defendants Heckler v. Chaney arguments, the
Court also held that [t]he states easily satisfy the zone-of-interest test.
Op.*7; cf. DOJ Br. 35-36. Similarly, the Court ruled that 8 U.S.C. 1252(g)
does not preclude review here. Op.*8; cf. DOJ Br. 33-34. APA review is
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therefore available, as [t]he United States has not rebutted the strong
presumption of reviewability with clear and convincing evidence that the INA
precludes review. Op.*9.
3. Notice-and-comment claim (Op.*12-14).
The Court correctly rejected Defendants arguments that DAPA does not
require APA notice-and-comment.
a. The Court first rebuffed Defendants main argumentthat DAPA
is exempt as a general statement[] of policy. Op.*12 (internal quotation
marks omitted); cf. DOJ Br. 36-47. The Court ruled that the district court
committed no clear error in finding that DAPA would not genuinely leave the
agency and its employees free to exercise discretion, and therefore is not a
general policy statement. Op.*13. In reaching this conclusion, the Court
reviewed the numerous bases supporting the district courts finding. Op.*1213.
Because the Court based its decision on officials lack of discretion, it did
not have to reach alternative grounds for concluding that DAPA is a
substantive rule. Regardless of how much discretion DAPA gives officials, it
is a substantive rule because it changed the law. States Br. 42 (quoting
NRDC v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011)). And, in doing so, it
affect[ed] individual rights and obligations. States Br. 44 (quoting Chrysler
Corp. v. Brown, 441 U.S. 281, 302 (1979), in turn quoting Morton v. Ruiz, 415
U.S. 199, 232 (1974)). The Court agreed, noting that DAPA modifies
substantive rights and interests. Op.*13. It is untenable to suggest that a rule
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which purports to change the immigration classification of over four million

unauthorized aliens is a mere general policy statement. See infra Part III.C.1.
b. The Court also held that DAPA is not exempt from APA notice-andcomment as a rule of internal agency procedure. Op.*13-14; cf. DOJ Br. 36, 42.
DAPA modifies substantive rights and interests. Op.*13. It also establishes
substantive standards by which the [agency] evaluates applications which
seek a benefit, and grants a stamp of approval to the behavior of its
beneficiaries. Op.*14.
c. The Court then rejected Defendants argument that the public-benefits
exemption from APA notice-and-comment applies here. Op.*14; cf. DOJ Br.
47-50. [L]awful presence is an immigration classification, not a grant of
money, goods, services, or any other kind of public benefit that has been
recognized, or was likely to have been recognized, under this exception.
Op.*14.
4. Substantive claims.
The stay panel, like the district court, did not have to reach Plaintiffs
substantive claims because the notice-and-comment claim by itself justifies
the preliminary injunction. Op.*10. Multiple holdings by the stay panel,
nevertheless, confirm that the Executive lacks authority to implement DAPA.
See States Br. 47-50.
The Court recognized that [t]he INA expressly identifies legal
designations allowing defined classes of aliens to reside lawfully in the United
States and also specifies classes of aliens eligible and ineligible for work
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authorization. Op.*10 (footnotes omitted); cf. Zivotofsky ex rel. Zivotofsky v.

Kerry, No. 13-628, 2015 WL 2473281, at *10 (U.S. June 8, 2015) (It remains
true, of course, that many decisions affecting foreign relations . . . require
congressional action. Congress may . . . establish an uniform Rule of
Naturalization . . . . (quoting U.S. CONST., Art. I, 8)). The panel also
noted that Congress has developed an intricate process for unlawfully
present aliens to reside lawfully . . . in the United States on account of their
childs citizenship. Op.*10. The Court then reasoned:
Against that background, we would expect to find an explicit
delegation of authority to implement DAPAa program that
makes 4.3 million otherwise removable aliens eligible for lawful
presence, work authorization, and associated benefitsbut no
such provision exists.
Op.*11 (citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000)); see Op.*11 n.90.
As for work authorizations, the Court noted that 8 U.S.C. 1324a(h)(3)
was merely a definitional provision. Op.*11; see Op.*11 n.86 (quoting
Whitman v. Am. Trucking Assocs., Inc., 531 U.S. 457, 468 (2001): Congress . .
. does not alter the fundamental details of a regulatory scheme in vague terms
or ancillary provisionsit does not, one might say, hide elephants in
mouseholes.); States Br. 48. Indeed, the Executive still fails to acknowledge
that its position would allow it to issue work permits to each and every
unauthorized alien in the country.
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With no specific statutory basis for DAPA, the Executive can only
suggest[] that its authority is grounded in historical practice. Op.*11. But
historical practice does not support DAPA. States Br. 49-50. And, regardless,
historical practice does not, by itself, create power. Op.*11 (citations and
internal quotation marks omitted).
B. The Court Correctly Determined that DAPAs

Irreversibility and the Balance of Harms Favor
Maintaining the Status Quo.
The stay panels rulings on irreparable harm also confirm that the district
court did not abuse its discretion by entering a preliminary injunction. Op.*15;
cf. DOJ Br. 50-54. This Court correctly ruled that the [t]he states have
shown they will be substantially injure[d] if DAPA takes effect. Op.*15.
DAPA beneficiaries could apply for drivers licenses and other benefits,
and it would be difficult for the states to retract those benefits or recoup their
costs even if they won on the merits. Op.*15. No comparable injury will befall
Defendants: even under the injunction, DHS can choose whom to remove
first, and the government can resume work if it prevails on the merits.
Op.*15. And this Courts ruling that [t]he public interest favors maintenance
of the injunction confirms that the district court did not abuse its discretion
in correctly reaching the same conclusion. Op.*15.
C. The Court Correctly Rejected the Executives Belated

Attempt to Narrow the Injunctions Scope.
The stay panel held that the nationwide scope of the injunction was not
an abuse of discretion. Op.*16; cf. DOJ Br. 54-56. [P]artial
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implementation of DAPA would undermine the constitutional imperative of

a uniform Rule of Naturalization and Congresss instruction that the
immigration laws of the United States should be enforced vigorously and
uniformly. Op.*16. And there is a substantial likelihood that a partial
injunction would be ineffective because DAPA beneficiaries would be free to
move between states. Op.*16. Moreover, although Defendants raised a
geographic-scope objection in seeking a stay, they did not raise it when
opposing the preliminary injunction below. Accordingly, they forfeited it.
States Br. 54-55; see, e.g., United States v. Mallis, 467 F.2d 567, 568 (3d Cir.
1972) (per curiam) (trial court cannot be charged with abuse of discretion for
failing to proceed in a way no party proposed or suggested).
III. The Dissents Reasoning Is Misguided.

The dissents reasoning is unpersuasive. Moreover, the dissent agreed that
DAPAs irreversibility means it should be preliminarily enjoined assuming
Plaintiffs were likely to succeed on the merits. Op.*21 n.5.
A. The Dissent Wrongly Concluded that DAPA Is

Unreviewable Inaction (Op.*17-20).
1. The dissent erroneously concluded that Plaintiffs are challenging a mere
internal executive enforcement guideline, making DAPA unreviewable
under Heckler v. Chaney. Op.*17. The dissent started from the mistaken
premise that this lawsuit challenges Defendants decision not to remove
certain unauthorized aliens. Op.*16.
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The underlying issue in this lawsuit is not the order in which noncitizens without documentation must be removed from the United States.
Op.*26. This lawsuit has never challenged any decision by the Executive to
initiate or forego removal proceedings, and the preliminary injunction does
not prevent the Executive from marshaling or allocating removal resources.
Nor have Plaintiffs challenged the issuance or implementation of the three
categories for removal prioritization that the Executive issued in a separate
memorandum. States Br. 16, 51-52.
This lawsuit challenges executive action that affirmatively grants lawful
presence, eligibility for work permits, and other benefits. States Br. 15.
Regardless of whether lawful presence is called a status or a
classification, it is undisputed that the U.S. Code treats differently those
who have lawful presence and those who do not. States Br. 20-21. For
example, lawful presence confers eligibility for Social Security, Medicare, and
the Earned Income Tax Credit. Id. Granting lawful presence, therefore, is
more than not removing an alien.
This Court has expressly recognized that merely foregoing removal
proceedings does not confer lawful presence: Receipt of temporary benefits
such as employment authorization or a temporary stay of removal does not
render an otherwise [unauthorized] aliens presence lawful. United States v.
Orellana, 405 F.3d 360, 370 (5th Cir. 2005). Thus, when the Executive
converts an aliens unlawful presence to lawful presence, the Executive
necessarily takes actionreviewable under Heckler v. Chaney.
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2. The dissent thought DAPA was unreviewable because it did not grant
legal status. Op.*19. The reviewability question, however, is not whether
DAPA grants an irrevocable right to remain in the country, but whether the
Executive has acted in conferring lawful presence. It has.
The dissent correctly recognizes that, under existing regulations, mere
lawful presence is insufficient for obtaining a green cardthat is, adjusting to
lawful-permanent-resident status. Op.*19; see 8 U.S.C. 1255(c)(2); 8 C.F.R.
245.1(d)(1). From this, the dissent reasons that the only ways non-citizens
may gain lawful status are codified separately through 8 U.S.C. 1255.
Op.*19.
But this inquiry is a red herring. DAPA is reviewable under Heckler if it is
affirmative executive action, as opposed to inaction. This question is not
answered by determining simply whether DAPA allows pursuit of one specific
type of immigration classification (adjustment to LPR status under 1255). In
other words, even if lawful status that enables pursuit of a green card under
1255 implies a right protected by law, the Executive can still take
reviewable action besides bestowing such a right to adjust to LPR status.
The relevant inquiry is whether DAPA changes aliens immigration
classifications in a legally significant way. DAPA indisputably does. Indeed,
Defendants have referred to deferred action as conferring a legal or lawful
status. For example, the President recently said that DAPA recipients would
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get a legal status.1 And the Executive previously stated in a Ninth Circuit
brief that deferred action status is lawful status. States Br. 20; see also
M.K.B. v. Eggleston, 445 F. Supp. 2d 400, 431 (S.D.N.Y. 2006) (describing
deferred action immigration status for benefits purposes).
In fact, the immigration classification that was needed to obtain federal
benefits before 1996 (PRUCOL) was expressly called a status by
multiple courts. Congress now uses a different classificationthe one at issue
hereand withholds government benefits from aliens who are not lawfully
present. 8 U.S.C. 1611(b)(2)-(4). That standard was created by the 1996
welfare-reform legislation, which impos[ed] sweeping restrictions on aliens
access to federally sponsored government aid. Lewis v. Thompson, 252 F.3d
567, 577 (2d Cir. 2001). But before 1996, aliens received certain benefits if they
were permanently residing in the United States under color of lawthat
is, they possessed PRUCOL status. Id. at 571-72; see Berger v. Heckler, 771
F.2d 1556, 1575-76 (2d Cir. 1985) (holding that alien could have PRUCOL
status although unlawfully residing in the United States). And courts
recognized PRUCOL as a meaningful status. Lewis, 252 F.3d at 578;
Smart v. Shalala, 9 F.3d 921, 923 (11th Cir. 1993) (per curiam) ([A]n alien
1
The White House, Remarks by President Obama in Press Conference after G7 SummitKrun, Germany (June 8, 2015), https://www.whitehouse.gov/the-press-office/2015/06/08/remarks-president-obama-press-conference-after-g7-summit.
The dissent argued that presidential statements to the press are irrelevant. Op.*23. But
this formal presidential statement, and others cited by Plaintiffs, are Executive statements
against interestnot self-serving press statements. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 647 (1952) (Jackson, J., concurring); cf. Hamdan v. Rumsfeld, 548 U.S.
557, 623 n.52 (2006) (refusing the Executives self-serving invitation to defer[] to comments made by [Executive] officials to the media).
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with PRUCOL status enjoys certain statutory benefits.). Just as the

PRUCOL designation was considered a meaningful status because it made
aliens eligible for benefits, the current lawful-presence designation is a status.
It may not be a status that permits adjustment to LPR status, but it is an
immigration classification with legal consequences. And conferring such an
immigration classification is reviewable action under Heckler v. Chaney.
The dissent also relied on the proposition that [n]on-citizens who only
have lawful presence, but not lawful status, are not entitled to remain in the
United States; their presence is revocable at any time. Op.*19. But the same
is true for aliens in nonimmigrant status: the Executive may at any time, in
his discretion, revoke such visa or other documentation, 8 U.S.C. 1201(i),
and any alien whose nonimmigrant visa... has been revoked under section
1201(i) of this title, is deportable, 8 U.S.C. 1227(a)(1)(B). Revocability
cannot be the touchstone for whether the Executive has taken action
reviewable under the APA. States Br. 21.
Again, the primary question is whether the Executive has acted. States Br.
16-17. Here, the Executive has decided not to remove certain unauthorized
aliens, and it has coupled that inaction with the action of conferring lawful
presence and eligibility for various benefits. That is why the stay-panel
majority correctly concluded that DAPA is much more than a
nonenforcement policy. Op.*13 n.112.
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B. The Dissents Criticism Regarding Plaintiffs Standing

Lacks Force (Op.*17 n.1).
Although the dissent expressly declined to reach the issue of standing,
it simultaneously found the States drivers-license theory of standing
debatab[le] based on the view that it lacks a limiting principle that
excludes state standing to challenge individual grants of deferred action.
Op.*17 n.1. But the holding in this case involving a class-wide change of
immigration classificationwhere Texas alone would lose millions of dollars
if even a small percentage of the DAPA-eligible population applied for drivers
licenses, see Op.*3has little bearing on cases involving individual
immigration decisions, where standing may very well be speculative.
Moreover, those cases might also trigger additional doctrines precluding
judicial review (for instance, if the Executive is able to show that the relevant
decision truly is committed to its discretion by law). Nor is the dissents
imagined scenario grounded in any history of a State showing interest in
launching lawsuits against individual grants of deferred action.
C. The Dissent Incorrectly Concluded that DAPA Did Not

Require Notice and Comment (Op.*21-25).
The dissent incorrectly concluded that DAPA is a mere general statement
of policy, exempt from notice and comment. Op.*21-25. The bulk of the
dissent argues that DAPA gives executive officials discretion to disregard it.
Even if this were rightand it is notDAPA would still be a substantive rule.
1. DAPA changed the law as to who is lawfully present and eligible for
work permits and other benefits. It is a substantive, legislative rule on that
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basis aloneeven if Executive officials retained complete discretion to grant

or deny lawful presence to those who meet DAPAs criteria. States Br. 42-44.
Without DAPA, there is no statute or rule that gives Defendants power to
confer lawful presence, the Earned Income Tax Credit, Social Security, and
Medicare on over four million unauthorized aliens. The dissent is therefore
wrong that the agency would have legal authority to undertake the action
absent the guidance document. Op.*25.
The dissent is correct that Defendants already have authority to forego
removal proceedings, on a case-by-case basis, without DAPA. For instance,
decisions not to remove certain aliens are permissible under the
unchallenged 2014 enforcement priorities memorandum. Op.*25. This is in
accordance with the Supreme Courts observation in Arizona v. United States
that [a] principal feature of the removal system is the broad discretion
exercised by immigration officials. 132 S. Ct. 2492, 2499 (2012).
But DAPA does much more than forego removal proceedings. It expressly
confers lawful presence and eligibility for work permits, and thereby creates
eligibility for further benefits. States Br. 8-9. Moreover, Congress has limited
the Executives ability to grant lawful presence and work permits. States Br.
2-6. Thus, the flexibility of the statutory regime as to removal says
nothing about DAPAs changing of immigration classifications that triggers
benefit eligibility. Op.*23
In short, the dissent is incorrect that DAPA simply channels when DHS
will not act. Op.*22. Accordingly, DAPA is qualitatively different than the
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Petite Policy, as it does far more than simply preclude[] the initiation or
continuation of a federal [removal proceeding]. Op.*22.
Nor is it relevant whether DAPA imposes a regulatory regime. Op.*22.
An agency action can be a substantive rule even if it does not impose penalties.
See Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112
(D.C. Cir. 1993) (substantive rule where in the absence of the rule there
would not be an adequate legislative basis for... agency action to confer
benefits).
To quote Judge Kavanaughs opinion for the D.C. Circuitwhich the
dissent invokedDAPA is not providing any guidance on some extant
statute or rule. Natl Mining Assn v. McCarthy, 758 F.3d 243, 252 (D.C. Cir.
2014). DAPA itself is the legislative rule that Defendants must rely upon to
grant lawful presence. So the Court need not reach the multi-step framework
that the dissent extrapolated from National Mining Association. See Op.*21.
That framework for examining the agencys discretion only applies when the
agency is purporting to explain[] how the agency will enforce a statute or
regulation. Natl Mining Assn, 758 F.3d at 252. DAPA does no such thing.
If the dissent is correct, then the Executiveright nowalready
possesses the unfettered authority to grant lawful presence, work permits, the
Earned Income Tax Credit, Social Security, and Medicare to every
unauthorized alien in the country. Congress has not given the Executive this
power. States Br. 2-6, 47-50. And the Executive has effectively conceded that
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it lacks this power by arguing that it would be harmed by the preliminary

injunction of DAPA.
2. The dissents analysis on discretion is also flawed. DAPA enumerates
several eligibility criteria, followed by a clause reciting residual discretion to
deny applications. The dissent reasons that this residual clause makes DAPA
not a substantive rule, but a mere general statement of policy. Op.*23-25.
Even on that analysis, the district court found that DAPAs rhetoric of
discretion is empty and that, in reality, DAPA would not allow discretionary
denials of relief to eligible aliens (much less discretionary grants of relief to
ineligible aliens). The dissent contains no sufficient basis for disregarding this
conclusion.
Most importantly, the dissent concluded that the 2012 DACA program is
irrelevant to DAPAs implementation. Op.*24. But the district court was
correctand certainly did not clearly errin its conclusion that DACA is
probative of how DAPA (and Expanded DACA, part of the same directive)
will be implemented.
Nor did the district court ignore that Plaintiffs had the burden to adduce
evidence justifying the preliminary injunction. Cf. Op.*24. Plaintiffs showed
that DACA applications are denied at an extremely low rate, ROA.4193, 4484,
and submitted a declaration from the USCIS-employee-union president
stating that DACA applications are rubber-stamped, ROA.2100-01. See also
ROA.1841 (DACA denial template lacked even a discretionary checkbox).
The district court thus recognized that [t]he States contend and have supplied
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evidence that the DHS employees who process DACA applications are
required to issue deferred action status to any applicant who meets the
[eligibility] criteria . . . and are not allowed to use any real discretion.
ROA.4385-86. The district court appropriately asked Defendants if they could
identify a single discretionary denial of DACA benefits. They could not, even
in their post-hearing submission. States Br. 24 & n.12. In sum, Defendants
submitted no contrary evidence (Op.*24), much less sufficient pre-hearing
evidence to warrant additional process before a preliminary-injunction
decision.
The dissent posits that a handful of anecdotes in Neufelds declaration are
specific examples of discretionary denials. Op*24. But that is inaccurate.
States Br. 24 n.12. As the district court held, fraud, public safety
reasons, and false prior claims of U.S. citizenship are not discretionary
reasons to deny DACA but rather factors that render an alien ineligible.
ROA.4484-85 (n.101); e.g., ROA.1841.
The dissent also alleged that the district courts conclusions were tainted
by self-selection biasthe possibility that those who do not meet DACAs
eligibility criteria will not apply. Op.*25. This theory, presented with no
evidence, does not render the district courts finding clearly erroneous. First,
the Executive has said it generally will not attempt to remove unsuccessful
applicants, so the risk of application was low and the reward very high. See
Op.*13. Second, a powerful self-selection bias would actually cut against the
Executives position by demonstrating that potential applicants who did not
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meet the eligibility criteria were aware that no discretion could be exercised in
their favor. Third, self-selection bias would at most explain why ineligible
aliens would be less likely to apply. It does not explain why the government
cannot identify a single instance of a discretionary denial of DACA to an
eligible alien.
Nor was the district court required to hear from the DHS Secretary before
granting a preliminary injunction. Cf. Op.*24. Secretary Johnson could have
submitted a declaration, but he chose not to. The district court had no duty to
obtainand plaintiffs had no burden to somehow compeltestimony from
Secretary Johnson before a preliminary injunction could issue.
More fundamentally, even if DAPA allowed genuine discretion to be
exercised in a tiny percentage of extraordinary cases, it would still have a
restrictive effect on agency decisionmakers. Profls & Patients for
Customized Care v. Shalala, 56 F.3d 592, 601 (5th Cir. 1995); see States Br. 4546. Where an agencys guidance document is followed in standard
cases, it is a substantive rule. Gen. Elec. Co. v. EPA, 290 F.3d 377, 384 (D.C.
Cir. 2002). And courts have found substantive rules even where discretion
was much more common: for instance, where an agency departed from its
guidance in 8 out of 300 cases, and 4 out of 100. U.S. Tel. Assn v. FCC, 28
F.3d 1232, 1234-35 (D.C. Cir. 1994); McLouth Steel Prods. Corp. v. Thomas, 838
F.2d 1317, 1320-21 (D.C. Cir. 1988). The dissent distinguishes these cases as
involving affirmative agency action or exact nonenforcement tolerances.
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Op.*22. But that simply restates the mistaken premise that this lawsuit is
challenging the Executives refusal to remove individuals.
DAPA is one of the largest immigration programs in our Nations history.
It is much more than a general statement of policy and requires, at a
minimum, APA notice-and-comment.
Conclusion
The preliminary injunction should be affirmed.
Respectfully submitted.
L UTHER S TRANGE
Attorney General of Alabama
KEN PAXTON
Attorney General of Texas
M ARK B RNOVICH
Attorney General of Arizona
CHARLES E. ROY
First Assistant Attorney General
L ESLIE R UTLEDGE
Attorney General of Arkansas
/s/ Scott A. Keller

SCOTT A. KELLER
Solicitor General
P AMELA J O B ONDI
Attorney General of Florida
J. CAMPBELL BARKER
MATTHEW H. FREDERICK
Deputy Solicitors General
S AMUEL S . O LENS
Attorney General of Georgia
APRIL L. FARRIS
ALEX POTAPOV
Assistant Solicitors General
L AWRENCE G . W AS DEN
Attorney General of Idaho
T OM C. P ERRY
C ALLY Y OUNGER
Counsel for the Governor of Idaho
J OSEPH C. C HAPEL LE
P ETER J. R USTHOVEN
Counsel for the State of Indiana
D EREK S CHMIDT
Attorney General of Kansas
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Counsel for Plaintiffs-Appellees
Case: 15-40238
Document: 00513085005
J AMES D . B UDDY C ALDWELL

Attorney General of Louisiana
P AUL R. L E P AGE
Governor of Maine
B ILL S CHUETTE
Attorney General for the People of
Michigan
D REW S NYDER
Counsel for the Governor of
Mississippi
T IMOTHY C . F OX
Attorney General of Montana
D OUG P ETERSON
Attorney General of Nebraska
A DAM P AUL L AXALT
Attorney General of Nevada
R OBERT C. S TEPHE NS
Counsel for the Governor of North
Carolina
W AYNE S TENEH JE M
Attorney General of North Dakota
M ICHAEL D E W INE
Attorney General of Ohio
E RIC E. M URPHY
Co-counsel for the State of Ohio
E. S COTT P RUITT
Attorney General of Oklahoma
A LAN W ILSON
Attorney General of South Carolina
M ARTY J. J ACKLEY
Attorney General of South Dakota
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H ERBERT S LATERY III

Attorney General and Reporter of
Tennessee
S EAN D. R EYES
Attorney General of Utah
P ATRICK M ORRISE Y
Attorney General of West Virginia
B RAD D. S CHIMEL
Attorney General of Wisconsin
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C ERTIFICATE
OF
Page: 38
S ERVICE
I certify the service of this document by ECF or email on June 18, 2015
upon the following:
Beth S. Brinkmann
beth.brinkmann@usdoj.gov
Jeffrey A. Clair
jeffrey.clair@usdoj.gov
Kyle R. Freeny
kyle.freeny@usdoj.gov
William E. Havemann
william.e.havemann@usdoj.gov
Scott R. McIntosh
scott.mcintosh@usdoj.gov
Counsel for Defendants-Appellants
/s/ Scott A. Keller
SCOTT A. KELLER
- 32 -
Case: 15-40238
Document: 00513085005
C ERTIFICATE
OF
Page: 39
C OMPLIANCE
1. I certify that (1) required privacy redactions have been made, 5th Cir.
R. 25.2.13; (2) the electronic submission is an exact copy of the paper
document, 5th Cir. R. 25.2.1; and (3) the electronic submission has been
scanned with the most recent version of commercial virus-scanning software
and was reported free of viruses.
2. I certify that this brief complies with the Courts ordered word limit
because it contains not more than 7,000 words.
/s/ Scott A. Keller
SCOTT A. KELLER
- 33 -

Supplemental Brief For Appellees - Texas v. United States

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Supplemental Brief For Appellees - Texas v. United States

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Case: 15-40238

Date Filed: 06/18/2015

In the United States Court of Appeals for the Fifth Circuit

United States of America; Jeh Charles Johnson, Secretary, Department of