United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
November 9, 2017, the court granted in part and denied in
part Defendants' motion to dismiss the above-captioned
challenges to the decision to rescind the Deferred Action for
Childhood Arrivals ("DACA") program. (Nov. 9, 2017,
Mem. & Order ("Nov. 9 M&O") (Dkt.
at 2, 19-48.) The court agreed with Defendants that
Plaintiffs lacked Article III standing to bring certain
claims asserted in their then-operative complaints.
(Id. at 32-46.) It rejected, however,
Defendants' arguments that the decision to rescind the
DACA program was "committed to agency discretion by law,
" and therefore immune from judicial review under the
Administrative Procedure Act ("APA"), see 5 U.S.C.
§ 701(a)(2) (Nov. 9 M&O at 20-28), or that the
Immigration and Nationality Act ("INA") divests
courts of jurisdiction to hear challenges to that decision,
see 8 U.S.C. § 1252(g) (Nov. 9 M&O at 28-32).
Defendants now move for the court to certify that order for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
(Defs. Mot. for Certification for Interlocutory Appeal
("Defs. Mot.") (Dkt. 219); Defs. Mem. in Supp. of
Mot. for Certification for Interlocutory Appeal ("Defs.
Mem.") (Dkt. 219-1).) The court concludes that its
November 9 M&O satisfies the requirements for Section
1292(b) certification, and it therefore GRANTS
I. LEGAL STANDARD
Federal courts of appeals typically hear appeals only from
"final decisions of... district courts." 28 U.S.C.
§ 1291. A district court may, however, certify a
non-final order in a civil case for interlocutory appeal,
provided that "such order involves a controlling
question of law as to which there is substantial ground for
difference of opinion and ... an immediate appeal from the
order may materially advance the termination of the
litigation." Id. § 1292(b). "When a
ruling satisfies [the Section 1292(b)] criteria and
'involves a new legal question or is of special
consequence, ' then the district court 'should not
hesitate to certify an interlocutory appeal."'
Balintulo v. Daimler AG, 727 F.3d 174, 186 (2d Cir.
2013) (quoting Mohawk Indus., Inc. v. Carpenter, 558
U.S. 100, 111 (2009)). "Whether an interlocutory appeal
is warranted lies squarely within the discretion of the
district court." Garber v. Office of the Comm'r
of Baseball, 120 F.Supp.3d 334, 337 (S.D.N.Y. 2014). The
court need only identify one controlling question of law that
satisfies Section 1292(b) to certify the entire order for
appeal. City of New York v. Beretta U.S.A. Corp.,
524 F.3d 384, 391-92 (2d Cir. 2008).
contend that the November 9 M&O presents two questions of
law that satisfy the requirements of Section 1292(b):
"(1) whether or not the rescission of D AC A was a
decision 'committed to agency discretion by law;' and
(2) whether or not the IN A deprives federal district courts
of jurisdiction over challenges to the Rescission
Policy." (Def. Mem. at 4.) The court agrees that the
first of these questions meets the requirements of Section
Controlling Question of Law
the issue of whether the decision to rescind the DACA program
was "committed to agency discretion" presents a
"controlling question of law." That question is
"controlling" because reversal of this court's
November 9 M&O on this point would require the dismissal
of, at the least, Plaintiffs' substantive APA challenges
to the rescission of the DACA program. That would plainly
"terminate the action" as to these claims,
Klinghoffer v. S. N.C. Achille Lauro Ed Altri-Gestione
Motonave Achille Lauro in Amministrazione Straordinaria,
921 F.2d 21, 24 (2d Cir. 1990), and "significantly
affect the conduct of the action" going forward, SEC
v. Credit Bancorp, Ltd., 103 F.Supp.2d 223, 227
(S.D.N.Y. 2000). Furthermore, this question is one "of
law" for purposes of Section 1292(b), as it presents an
essentially legal issue as to whether the rescission of
guidelines for immigration authorities' exercise of
prosecutorial discretion is itself an exercise of
prosecutorial discretion that is presumptively unreviewable
under 5 U.S.C. § 701(a)(2) and Heckler v.
Chaney, 470 U.S. 821 (1985).
Substantial Ground for Difference of Opinion
there are substantial grounds for difference of opinion on
this question. In this circuit, an order may furnish
"substantial ground for difference of opinion" when
it presents issues that are "difficult and of first
impression." Klinghoffer, 921 F.2d at 25;
Hart v. Rick's Cabaret Int'l, Inc., 73
F.Supp.3d 382, 393 (S.D.N.Y. 2014) ("A substantial
ground for difference of opinion exists when (1) there is
conflicting authority on the issue, or (2) the issue is
particularly difficult and of first impression for the Second
Circuit." (quoting In re Facebook, Inc. IPO Sees.
& Deriv. Litis., 986 F.Supp.2d 524, 539
(S.D.N.Y.2014))). In the court's view, the application of
Section 701(a)(2) of the APA to the rescission of the DACA
program presents such a difficult issue of first impression.
In its November 9 M&O, the court concluded that
Defendants' rescission of the DACA program did not fall
into Section 701 (a)(2)'s "very narrow
exception" to the APA's presumption of reviewability
of agency action-an exception that applies only "in
those rare instances where statutes are drawn in such broad
terms that in a given case there is no law to apply."
Citizens to Pres. Overton Park. Inc. v. Volpe, 401
U.S. 402, 410 (1971) (internal quotation marks and citation
omitted). (Nov. 9 M&O at 20-21.) This was because there
was indeed "law to apply" to Defendants'
decision and because the rescission of the DACA program did
not fall within a class of decisions, such as agency
decisions not to take enforcement action, that are
presumptively immune from APA review. (Id. at
the court has no misgivings about these conclusions, these
issues are admittedly difficult and debatable.
Chaney clearly establishes that an agency's
decision not to take enforcement action is presumptively not
subject to judicial review under the APA. 470 U.S. at 830-31.
It is less clear, however, whether and how this rule applies
to DACA and other deferred-action programs that, at least on
their face, simply provide guidelines for the exercise of
immigration authorities' prosecutorial discretion.
(See Mem. from Janet Napolitano, Sec'y, DHS, to
David V. Aguilar, Acting Comm'r, U.S. Customs &
Border Protection, et al. (June 15, 2012) at 1-3
(Admin. R. (Dkt. 77-1) at 1-3).) Closely related issues have
repeatedly divided the Court of Appeals for the Fifth
Circuit. Compare Texas v. United States, 809 F.3d
134, 163-69 (5th Cir. 2015) ('Texas II")
(concluding that the Deferred Action for Parents of Americans
and Lawful Permanent Residents ("DAPA") program was
subject to judicial review under the APA notwithstanding
Section 701(a)(2)), aff d by an equally divided
Court, 136 S.Ct. 2271 (2016), and Texas v. United
States, 787 F.3d 733, 754-62 (5th Cir. 2015)
("Texas I") (same, in denying stay),
with Texas II, 809 F.3d at 196-202 (King, J.,
dissenting) (stating that the case was nonjusticiable because
DAPA merely "provide[d] guidelines for th[e] exercise of
prosecutorial discretion"), and Texas I, 787
F.3d at 769-76 (Higginson, J., dissenting) (same). (See
Batalla Vidal Pls. Mem. in Opp'n to Defs. Mot. (Dkt.
226) at 9 n.3.)
Chaney should apply to an agency's decision to
terminate DACA-a deferred-action program of broad
applicability-is more uncertain still. The rescission of that
program is neither an enforcement decision nor a
non-enforcement decision, but a non-non-enforcement
decision. Is such a decision simply another exercise of
prosecutorial discretion, as Defendants would have it (Defs.
Mem. at 6-8), or does it present special considerations not
found in Chaney and other challenges to
non-enforcement decisions, as this court has previously held?
See Chaney, 470 U.S. at 831-32 (holding that an
agency's non-enforcement decision is presumptively not
subject to APA review because it (1) "often involves a
complicated balancing of a number of factors which are
peculiarly within [the agency's] expertise, " (2)
does not involve the agency's "exercise [of] its
coercive power over an individual's liberty or
property rights, " (3) does not "provide a focus
for judicial review, " inasmuch as the agency has not
exercised its power; and (4) "shares to some extent the
characteristics of the decision of a prosecutor in the
Executive Branch not to indict"). (Nov. 9 M&O at
23-26.) In light of the difficulty of this question and the
apparent absence of controlling authority, the court
concludes that there is a "substantial ground for
difference of opinion" on this question.
Material Advancement of the Ultimate Termination of the
the court is satisfied that an interlocutory appeal from its
November 9 M&O could materially advance the ultimate
termination of this litigation. If, on appeal, the Second
Circuit were to conclude that the decision to rescind DACA
was "committed to agency discretion by law, "
barring review of that decision under Section 701(a)(2), then
such a ruling would necessarily require the dismissal of, at
the least, Plaintiffs' substantive APA challenges to that
decision. That would not only simplify this court's task
but might also reduce the scope of discovery. See
Zygmuntowicz v. Hosp. Investments. Inc., 828 F.Supp.
346, 353 (E.D. Pa. 1993) (ultimate ...