Fourth Circuit Survey

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Week of May 13, 2019 through May 17, 2019

Sharyl Attkisson v. Eric Holder, Jr. (King 5/17/2019): The Fourth Circuit held claims against unknown surveillance agents are subject to dismissal if those defendants remain unserved ninety days after a complaint is filed, without a showing of good cause. The court affirmed the District Court for the Eastern District of Virginia’s dismissal with prejudice of the plaintiff’s alleged unlawful surveillance claims. Full Opinion


Highlight Case

Casa De Md. v. DHS

Decided: May 17, 2019

In DHS, the Court held that the government’s rescission of DACA was arbitrary and capricious because the government failed to adequately explain and identify how DACA was unlawful. 

In June 2012, the Secretary of Homeland Security, Janet Napolitano, announced via memorandum the policy known as Deferred Action for Childhood Arrivals (DACA). DACA was a program that allowed two-year terms of deferred action from removal for certain qualifying individuals seeking to remain in the United States. The qualifying criteria included biometric screening and applicants had to provide extensive personal information to the Department of Homeland Security. A similar policy aimed at deferring action for certain parents of United States citizens and lawful permanent residents was announced in November 2014, known as Deferred Action for Parents of Americans (DAPA). DAPA also expanded portions of DACA. In June 2017, shortly after President Trump took office, the Secretary of Homeland Security John Kelly rescinded DAPA. Three months later, Acting Secretary Elaine Duke rescinded DACA. 

Plaintiffs challenged the rescission of DACA on various grounds. First, plaintiffs challenged the agencies procedures to remove DACA, specifically, rescinding a substantive rule without notice-and-comment rulemaking under the APA. Secondly, plaintiffs challenged the governments proposed method to share personal information of DACA applicants as arbitrary and capricious, violating the APA and the due process clause. Next, Plaintiffs challenged the rescission of DACA on equal protection grounds under the Fifth Amendment. The last basis for challenging the rescission of DACA was equitable estoppel. The U.S. District Court for the District of Maryland granted partial summary judgement for the government on all claims except equitable estoppel, relating to the sharing of DACA applicants information. Specifically, the court ordered the government to use the original policies announced in 2012. 

Regarding the notice-and-comment challenge under the APA, the Court affirmed the District Court’s order, holding that the government did not need to use notice-and-comment procedures under the APA because the rescission of the DACA memorandum was a general statement of policy. The Court relied on case law generally accepting the view that policy directives must not establish binding norms and leave agency officials with discretion for future decision-making. Relying on this authority, the Court reasoned that although the rescission memorandum removes a mechanism under which individuals might receive deferred action, it places no limitations on future law enforcement decisions by the Department of Homeland Security. Furthermore, the memorandum will not bind subsequent Secretaries of Homeland Security who could disagree with the policy. Therefore, the memorandum was exempt from formal APA procedures.

The Court then agreed with plaintiff’s argument that the DACA rescission was arbitrary and capricious under the APA because the Department of Homeland Security failed to give a reasoned explanation for the change. The Court relied on the text of the memorandum itself, reasoning that although the Department stated DACA was unlawful, they did not identify any statutory provisions with which DACA conflicts. Additionally, the Court reasoned that the Department did not adequately take into account the reliance interests that would be affected by the rescission of DACA; a decision affecting hundreds of thousands of people. 

The Court then reversed the District Court’s decision in favor of the plaintiffs on the equitable estoppel claim, reasoning that the government did not make any promise to DACA recipients that the information sharing aspect would never change. In fact, the government specifically warned recipients that the policy may change. Finally, the Court decided not to address the constitutional challenges because of the accepted principle that their jurisdiction normally will not decide constitutional questions if there is some other ground for disposing of a case. Full Opinion

Carl Petkoff