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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ASISTA IMMIGRATION ASSISTANCE,
INC., et al.,
Case No. 3:20-cv-00206-JAM
Plaintiffs,
v.

Judge: Hon. Jeffrey A. Meyer

MATTHEW T. ALBENCE, et al.,
Defendants.

DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY
JUDGMENT AND OPPOSITION TO PLAINTIFFS’ CROSS-MOTION FOR
SUMMARY JUDGMENT

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TABLE OF CONTENTS
INTRODUCTION......................................................................................................................... 1
I.

THIS COURT LACKS JURISDICTION OVER PLAINTIFFS’ CLAIMS ................1

II.

PLAINTIFFS LACK A CAUSE OF ACTION ...............................................................8

III.

A.

Plaintiffs May Not Assert an Ultra Vires Claim ..................................................8

B.

The Directive Is Not Final Agency Action .........................................................13

THE FEDERAL VACANCIES REFORM ACT DOES NOT INVALIDATE THE
DIRECTIVE .....................................................................................................................16
A.

Setting Policy Is Not An Exclusive “Function Or Duty” Of The ICE
Director Under 5 U.S.C. § 3348 ..........................................................................17

B.

No Other Provision Of The FVRA Invalidates The Directive .........................28

CONCLUSION ........................................................................................................................... 30

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TABLE OF AUTHORITIES
Cases
Abbott Laboratories v. Gardner,
387 U.S. 136 (1967) .................................................................................................................. 14
Aid Ass’n for Lutherans v. U.S. Postal Serv.,
321 F.3d 1166 (D.C. Cir. 2003) ................................................................................................ 10
Am. Clinical Lab. Ass’n v. Azar,
931 F.3d 1195 (D.C. Cir. 2019) .......................................................................................... 10, 11
Armstrong v. Exceptional Child Center,
575 U.S. 320 (2015) .................................................................................................................. 11
Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150 (1970) .................................................................................................................... 2
Board of Govs. of Fed. Reserve Sys. v. McCorp Financial, Inc.,
502 U.S. 32 (1991) ................................................................................................................ 9, 10
Centro de la Communidad Hispana de Locust Valley v. Town of Oyster Bay,
868 F.3d 104 (2d Cir. 2017)........................................................................................................ 7
Chamber of Commerce of U.S. v. Reich,
74 F.3d 1322 (D.C. Cir. 1996) .................................................................................................. 10
Clapper v. Amnesty Intern. USA,
568 U.S. 398 (2013) ............................................................................................................ 3, 4, 6
Corporacion Mexicana De Mantenimiento Integral v. Pemex-Exploracion y Produccion,
832 F. 3d 92 (2d Cir. 2016)....................................................................................................... 26
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Estate of Landers v. Leavitt,
545 F.3d 98 (2d Cir. 2008)........................................................................................................ 21
Ethicon Endo-Surgery, Inc. v. Covidien LP,
812 F.3d 1023 (Fed. Cir. 2016)................................................................................................. 21
Federal Defenders of N.Y., Inc. v. Federal Bureau of Prisons,
954 F.3d 118 (2d Cir. 2020)...................................................................................................... 11
Fleming v. Mohawk Wrecking & Lumber Co.,
331 U.S. 111 (1947) .................................................................................................................. 18
Griffith v. Federal Labor Relations Authority,
842 F.2d 487 (D.C. Cir. 1988) .................................................................................................. 10
Guedes v. ATF,
920 F.3d 1 (D.C. Cir. 2019) ...................................................................................................... 28
Harmon v. Brucker,
355 U.S. 579 (1958) .................................................................................................................. 11
Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) ................................................................................................................ 4, 6
Hooks v. Kitsap Tenant Support Servs., Inc.,
816 F.3d 550 (9th Cir. 2016) .................................................................................................... 29
Indep. Cosmetic Mfrs. & Distribs., Inc. v. U.S. Dep’t of Health, Educ. & Welfare,
574 F.2d 553 (D.C. Cir. 1978) .................................................................................................. 11
Irish Lesbian & Gay Org. v. Giuliani,
143 F.3d 638 (2d Cir. 1998)........................................................................................................ 1

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Knife Rights, Inc. v. Vance,
802 F.3d 377 (2d Cir. 2015)........................................................................................................ 8
Kobach v. U.S. Election Assistance Comm’n,
772 F.3d 1183 (10th Cir. 2014) ................................................................................................ 18
L.M.-M v. Cuccinelli,
--- F. Supp. 3d ---, 2020 WL 985376 (D.D.C. March 1, 2020) ......................................... passim
Leedom v. Kyne,
358 U.S. 184 (1958) .................................................................................................................... 9
Local 130. IUERMW v. McCulloch,
345 F.2s 90 (D.C. Cir. 1965) .................................................................................................... 10
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .................................................................................................................... 2
Mental Disability Law Clinic, Touro Law Center v. Hogan,
519 F. App’x 714 (2d Cir. 2013) ............................................................................................ 5, 6
N.Y. Civil Liberties Union v. N.Y.C. Transit. Auth.,
684 F.3d 286 (2d Cir. 2012)................................................................................................ 1, 5, 7
Nitro-Lift Technologies, LLC v. Howard,
568 U.S. 17 (2012) .................................................................................................................... 24
NLRB v. SW General, Inc.,
137 S. Ct. 929 (2017) ................................................................................................................ 24
Nnebe v. Daus,
644 F.3d 147 (2d Cir. 2011).................................................................................................... 5, 7

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Parish v. United States,
100 U.S. 500 (1879) .................................................................................................................. 20
Patchak v. Zinke,
138 S. Ct. 897 (2018) .................................................................................................................. 9
Ragin v. Harry Macklowe Real Estate Co.,
6 F.3d 895 (2d Cir. 1993) ........................................................................................................... 5
Sackett v. EPA,
566 U.S. 120 (2012) .................................................................................................................. 14
Salazar v. King,
822 F.3d 61 (2d Cir. 2016).................................................................................................. 12, 13
Schagticoke Tribal Nation v. Kempthorne,
587 F. Supp. 2d 389 (D. Conn. 2008) ....................................................................................... 20
Sharkey v. Quarantillo,
541 F.3d 75 (2d Cir. 2008).................................................................................................. 13, 14
Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26 (1976) ...................................................................................................................... 2
Sonterra Capital Master Fund Ltd. v. UBS AG,
954 F.3d 529 (2d Cir. 2020)........................................................................................................ 2
Spann v. Colonial Village, Inc.,
899 F.2d 24 (D.C. Cir. 1990) ...................................................................................................... 2
Spokeo, Inc. v. Robins,
136 S. Ct. 1540 (2016) ................................................................................................................ 2

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SW General, Inc. v. NLRB,
796 F.3d 67 (D.C. Cir. 2015) ........................................................................................ 27, 29, 30
U.S. Telecom Ass’n v. FCC,
359 F.3d 554 (D.C. Cir. 2004) .................................................................................................. 18
United States v. Hudson,
7 Cranch 32 (1812) ..................................................................................................................... 9
Statutes
5 U.S.C. § 551 ............................................................................................................................... 12
5 U.S.C. § 704 ............................................................................................................................... 11
5 U.S.C. § 3345 ....................................................................................................................... 16, 27
5 U.S.C. § 3348 ...................................................................................................................... passim
6 U.S.C. § 112 ......................................................................................................................... 23, 24
6 U.S.C. § 252 ................................................................................................................... 17, 20, 29
6 U.S.C. § 455 ............................................................................................................................... 19
6 U.S.C. § 624 ............................................................................................................................... 25
8 U.S.C. § 1227 ............................................................................................................................. 20
8 U.S.C. § 1252 ............................................................................................................................. 12
35 U.S.C. § 131 ............................................................................................................................. 21
35 U.S.C. § 132 ............................................................................................................................. 21
35 U.S.C. § 251 ............................................................................................................................. 21
42 U.S.C. § 1983 ............................................................................................................................. 7
42 U.S.C. § 3602 ............................................................................................................................. 6
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42 U.S.C. § 1395ff ........................................................................................................................ 21
42 U.S.C. § 1395hh ....................................................................................................................... 21

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INTRODUCTION
Defendants’ opening brief explained that Plaintiffs have settled on a singularly inapt
vehicle for their claims under the Federal Vacancies Reform Act. The Directive at issue in this
case concerns a purely discretionary agency function and does not harm Plaintiffs in any way. As
a result, they cannot satisfy Article III’s standing requirement. And even if Plaintiffs could
overcome those hurdles, their challenge plainly fails on the merits of the Federal Vacancies Reform
Act, because no statute or regulation requires the Director of ICE, and only the Director, to make
policies like the Directive. For the same reason, Plaintiffs’ attempt to raise an ultra vires challenge
falls flat.
As discussed below, Plaintiffs’ arguments to the contrary are meritless. This Court should
grant summary judgment to Defendants.
ARGUMENT
I.

THIS COURT LACKS JURISDICTION OVER PLAINTIFFS’ CLAIMS
Defendants demonstrated in their opening brief, and Plaintiffs do not dispute, that

organizations that sue on their own behalf (rather than raising claims derivatively on behalf of their
members, which Plaintiffs disclaim any attempt to do, see Pls.’ Mem. at 39) are subject to precisely
the same requirements of Article III standing as individuals. An organization like Asista or
Sanctuary for Families “is just another person—albeit a legal person—seeking to vindicate a
right.” N.Y. Civil Liberties Union v. N.Y.C. Transit. Auth., 684 F.3d 286, 294 (2d Cir. 2012). As
such, it must “meet[] the same standing test that applies to individuals . . . [by] show[ing] actual
or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be

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redressed by a favorable court decision.” Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649
(2d Cir. 1998) (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)).
The “irreducible constitutional minimum of standing contains three elements.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). “First, the plaintiff must have suffered an ‘injury
in fact’—an invasion of a legally protected interest which is (a) concrete and particularized . . .
and (b) ‘actual or imminent, not conjectural or hypothetical.’” Id. (internal citations and quotation
marks omitted). “Second, there must be a causal connection between the injury and the conduct
complained of,” meaning that the injury must be “‘fairly traceable to the challenged action of the
defendant and not the result of the independent action of some third party not before the court.’”
Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976) (cleaned up)). “Third,
it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressable by a
favorable decision.” Id. at 561 (quoting Simon, 426 U.S. at 38, 43).
Remarkably, Plaintiffs contend that this boilerplate recitation of the elements of standing
“attempts to revive a long-discarded relic from standing doctrine of decades past.” Pls.’ Mem. at
44. Plaintiffs accuse Defendants of seeking to impose a “legal right” test that “the Supreme Court
long ago rejected,” when all they need to show is “injury in fact.” Id. at 45 (quoting Ass’n of Data
Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970)). But as the Second Circuit
confirmed as recently as April, “injury in fact” means “an invasion of a legally protected interest
that is concrete and particularized and actual or imminent, not conjectural or hypothetical.”
Sonterra Capital Master Fund Ltd. v. UBS AG, 954 F.3d 529, 534 (2d Cir. 2020) (emphasis added)
(quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)).
The problem for Plaintiffs is that they cannot show any such “invasion of a legally
protected interest.” In Plaintiffs’ own words, their “injuries result from the fact that ICE has
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heightened the standards by which it grants stays of removal, and Plaintiffs represent clients (or
serve attorneys representing clients) who need to seek stays of removal.” Pls.’ Mem. at 44.
According to Plaintiffs, “ICE’s new standards therefore hinder Plaintiffs’ efforts by forcing them
to divert resources in response to those new standards,” which they claim is a “cognizable injury.”
Id. In other words, Plaintiffs claim standing because they are diverting resources away from other
purposes to avoid the harm of having a client’s stay application denied under the Directive: They
are “forced” to divert resources from other uses because the allegedly “heightened standards” make
the denial of a stay more likely, and their clients “need to seek stays.”
That theory of standing produces two problems for Plaintiffs, as Defendants set out in their
opening brief. First, denial of a discretionary stay of removal is not itself “an invasion of a legally
protected interest” of Plaintiffs or of their clients, because no one has any legally protected right
to a stay. Defs.’ Mem. at 8. Plaintiffs do not argue to the contrary. Second, Plaintiffs “cannot
manufacture standing by incurring costs in anticipation of non-imminent harm.” Clapper v.
Amnesty Intern. USA, 568 U.S. 398, 422 (2013). In Clapper itself, that included organizational
plaintiffs. Id. at 406.
Plaintiffs attempt to dismiss Clapper by asserting, in a footnote, that their claims are not
based on “incurring costs in anticipation of . . . harm.” Pls.’ Mem. at 43 n.4. But Plaintiffs miss
the point of Clapper, which is that voluntarily incurred costs are not an injury in fact unless they
are incurred in response to a harm that is itself an injury in fact. Id. at 416. That is because “[i]f
the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for
Article III standing simply by making an expenditure.” 568 U.S. at 416. In Clapper, the harm that
the plaintiffs incurred expenses to avoid was not imminent, but it was at least the kind of harm that
would satisfy Article III if and when it occurred or became imminent. Id. at 410. Here, however,
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the harm that Plaintiffs seek to avoid—denial of a stay—never amounts to an injury in fact,
imminent or not. Of course, that harm is not “imminent,” because it is entirely speculative whether
any given stay application will be denied. Id. at 414 (“We decline to abandon our usual reluctance
to endorse standing theories that rest on speculation about the decisions of independent actors.”).
It follows a fortiori that Plaintiffs cannot bootstrap their way into Article III standing by voluntarily
incurring expenses to avoid that harm.
Plaintiffs make no effort to engage with the Supreme Court’s reasoning in Clapper. Instead,
they rely entirely on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), and Second Circuit
cases quoting that decision. Pls.’ Mem. at 39, 45–47. As Defendants explained in their opening
brief, however, that decision is perfectly compatible with the Supreme Court’s subsequent standing
jurisprudence. Defs.’ Mem. at 12. Havens held that a “concrete and demonstrable injury to [an]
organization’s activities—with the consequent drain on the organization’s resources” that
“perceptibly impair[s]” the organization’s activities—can establish Article III standing. 455 U.S.
at 379. Plaintiffs read that language to create a special form of “injury in fact” unique to
organizations that entitles them to create standing at will by voluntarily incurring expenses. Pls.’
Mem. at 39, 42. But Havens and the cases that follow it are all consistent with Clapper’s logic that
a voluntarily incurred expense does not count as an injury in fact unless it seeks to avoid a harm
that is itself an injury in fact.
As Defendants have already explained, Plaintiffs’ version of organizational standing is
entirely unmoored from the text of Article III (which makes no special provision for
organizations), the express holdings of the Supreme Court’s subsequent standing decisions, and
the logic underpinning the doctrine. Defs.’ Mem. at 8–19. Plaintiffs do not contest any of that
reasoning, except to quote cases stating that the diversion of organizational resources and the
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impairment of an organization’s mission suffice for standing. Pls.’ Mem. at 39–43, 45–47. The
clearest illustration of Plaintiffs’ disregard for any concern with the logic or internal coherence of
standing doctrine comes in their insistence—without any analysis—that “litigation expenses” are,
by themselves, “sufficient to confer standing.” Pls.’ Mem. at 42. On that logic, all organizations
necessarily have standing in every case they bring as plaintiffs; needless to say, such aggressive
bootstrapping is plainly irreconcilable with Clapper, not to mention Lujan, Warth, Simon, Sierra
Club, and every other decision holding that an organization lacked standing. See Defs.’ Mem. at
10–14. If applied equally to individuals as to organizations—as principles of standing must be, see
N.Y. Civil Liberties Union, 684 F.3d at 294—it would eviscerate the standing requirement entirely,
since every litigant can point to some opportunity cost of litigating.
If Second Circuit law truly required such a holding, Plaintiffs’ failure to engage with the
reasoning behind all standing decisions might not matter. But the cases Plaintiffs cite do not at all
require such a sharp departure from basic logic of standing doctrine. Ragin v. Harry Macklowe
Real Estate Co., 6 F.3d 895 (2d Cir. 1993), held that an organization had standing when its staff
“devoted substantial blocks of time to investigating and attempting to remedy the defendants’
[racially discriminatory housing] advertisements.” Ragin, 6 F.3d at 905. The court held that the
fact that “some of the [organization’s] staff’s time was spent exclusively on litigating this action
does not deprive the organization of standing to sue in federal court.” Id. That holding is a far cry
from Plaintiffs’ position that standing in a federal lawsuit may be based solely on litigation
expenses in that very case. Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011) did not hold anything to
that effect either; in that case, the court held that the New York Taxi Workers Alliance had standing
as a result of its efforts litigating before the New York City Taxi and Limousine Commission.
Nnebe, 644 F.3d at 157. Even Mental Disability Law Clinic, Touro Law Center v. Hogan, 519 Fed.
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App’x 714 (2d Cir. 2013), the non-precedential opinion that Plaintiffs cite, did not go so far. That
case held that an organizational plaintiff had standing based on its litigation efforts against the
New York State Office of Mental Health’s practice of automatically filing counter-claims for
outstanding charges against patients who sued the Office, and cited Ragin to hold that the
organization was “not deprived of standing solely because some of the expenses that provide a
basis for standing were dedicated to litigating” that very action. Mental Disability Law Clinic, 519
Fed. App’x at 717.
Plaintiffs’ insistence that any “drain on its resources or perceptible impairment of its
missions is sufficient to establish standing,” Pls.’ Mem. at 45, is similarly incompatible with the
basic structure of standing doctrine. If Plaintiffs were correct, organizations would have the unique
right, not afforded to individual plaintiffs, to bootstrap their way into standing merely by
expending funds in response to a policy they seek to challenge. But the organizations in Clapper
did not have that right, see Clapper, 568 U.S. at 415–16, and nor did the organizational plaintiff
in Havens itself. As Defendants explained in their opening brief, the organization in that case had
a statutory right to truthful information about housing availability. See 42 U.S.C. § 3602(d).
Because the racially discriminatory housing provider in that case did not provide such truthful
information, the organization “had to devote significant resources to identify and counteract the
defendant’s racially discriminatory steering practices,” by hiring “tester plaintiffs.” Havens, 455
U.S. at 379. Contrary to Plaintiffs’ supposition, Defendants do not argue that the Supreme Court
expressly relied on that statutory right in holding that the organization had established standing.
See Pls.’ Br. at 45–46. Rather, the point is Havens does not require Plaintiffs’ version of

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organizational standing, in which organizations can spend their way into standing, and that
Plaintiffs’ position is untenable in light of subsequent Supreme Court precedent.
The same is true for the Second Circuit cases Plaintiffs cite. For example, Nnebe expressly
held that the Taxi Workers Alliance had standing to raise its own due-process rights under 42
U.S.C. § 1983. Nnebe, 644 F.3d at 157. Indeed, it could not have raised the due-process rights of
its members, because Second Circuit precedent prohibits organizations from doing so. Id. at 156.
The right the organization sought to vindicate, as the Second Circuit expressly held, was its right
to ensure that when it spent resources representing its members “it can spend those resources on
hearings that represent bona fide process.” Id.
So too for the New York Civil Liberties Union, which raised its own First Amendment
right, as part of the public, to access hearings before the New York City Transit Adjudication
Bureau, which allowed it to prepare to represent clients in such hearings. NYCLU, 684 F.3d at 289
(NYCLU brought suit under 42 U.S.C. § 1983 . . . claiming, inter alia, that the policy violated the
NYCLU’s First Amendment right of access to government proceedings.”). Similarly, a non-profit
dedicated to organizing day laborers had standing under Section 1983—and thus necessarily in its
own right as an organization—to raise a First Amendment challenge to a town ordinance that
impaired its ability to reach day laborers. Centro de la Communidad Hispana de Locust Valley v.
Town of Oyster Bay, 868 F.3d 104, 107–08 (2d Cir. 2017). Plaintiffs simply mischaracterize those
decisions when they claim that they “did not rest on any alleged ‘First Amendment rights’ of the
plaintiff organizations.” Pls.’ Mem. at 46. As Plaintiffs do not dispute, those cases involved

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organizational plaintiffs raising First Amendment claims under Section 1983, which can only be
brought in the organization’s own right under Second Circuit law.
Defendants’ reading of Second Circuit precedent, moreover, makes sense of Knife Rights,
Inc. v. Vance, 802 F.3d 377 (2d Cir. 2015), a case Plaintiffs all but ignore in which the Second
Circuit held that an organization did not have standing to challenge a state policy merely because
of its expenditures in opposition to that policy. Knife Rights, 802 F.3d at 389.
In sum, Plaintiffs cannot establish standing here because the only harms they have suffered
as a result of the Directive are self-incurred. The denial of a stay of removal does not cognizably
injury either the Plaintiffs or their clients, and expenses incurred to avoid that harm cannot
bootstrap Plaintiffs into Article III standing.
II.

PLAINTIFFS LACK A CAUSE OF ACTION
As Defendants explained in their opening brief, the Administrative Procedure Act (“APA”)

provides the only possible statutory cause of action for Plaintiffs’ claims. Defs.’ Mem. at 19–20.
And here, Plaintiffs can make no valid claim under the APA because there is no final agency
action. Plaintiffs object in a footnote, but they conspicuously fail to cite any other statutory basis
for this case. Pls.’ Mem. at 47 n.5. The only other cause of action Plaintiffs cite is their nonstatutory ultra vires claim. Neither option gives Plaintiffs basis for this suit.
A.

Plaintiffs May Not Assert an Ultra Vires Claim

Plaintiffs attempt to invoke this Court’s general equitable power to enjoin unlawful action
by federal officials. Pls.’ Mem. at 36–38. As Defendants explained in their opening brief, ultra
vires review depends on showing a patent, rather than merely arguable, violation of statutory
authority. Defs.’ Mem. at 20. Plaintiffs contend that that “heightened standard” applies only “when
a statute affirmatively precludes judicial review.” Pls.’ Mem. at 37–38. That is incorrect. Congress
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controls the jurisdiction of the lower federal courts, and the effect of a statute that “affirmatively
precludes judicial review” is to preclude judicial review, rather than to permit it subject to a higher
standard. See U.S. Const. art. III, § 1; accord, e.g., United States v. Hudson, 7 Cranch 32, 33 (1812)
(“the power which congress possesses to create Courts of inferior jurisdiction, necessarily implies
the power to limit the jurisdiction of those Courts to particular objects.”); Patchak v. Zinke, 138 S.
Ct. 897, 906–07 (2018) (unless it violates another Constitutional provision or impermissibly
attempts to direct the result of a specific case, “Congress generally does not violate Article III
when it strips federal jurisdiction over a class of cases.”). The Supreme Court has thus held that
ultra vires review was not available in the face of “clear and convincing evidence that Congress
intended to deny the District Court jurisdiction” over the challenged agency action. Board of Govs.
of Fed. Reserve Sys. v. McCorp Financial, Inc., 502 U.S. 32, 44 (1991).
The availability of ultra vires review of agency action in the face of an apparently
applicable preclusion statute, recognized in Leedom v. Kyne, 358 U.S. 184 (1958), turned on the
Supreme Court’s recognition that it “cannot lightly infer that Congress does not intend judicial
protection of rights it confers against agency action taken in excess of delegated powers,”
particularly when precluding review would leave “no other means . . . to protect and enforce that
right.” Leedom, 358 U.S. at 185. In other words, absent a clear statement to the contrary, courts
must presume that Congress intended to allow judicial review of unauthorized government actions.
But as the Court has since confirmed, that narrow basis for jurisdiction does not amount to a
wholesale authorization of “judicial review of any agency action that is alleged to have exceeded

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the agency’s statutory authority,” regardless of Congress’s efforts to preclude review. McCorp,
502 U.S. at 44.
Contrary to Plaintiffs’ assumption, a necessary condition of ultra vires review is thus that
no statutory barrier affirmatively precludes review. Courts have consistently considered ultra vires
claims after expressly holding that no statute bars review. See, e.g., Am. Clinical Lab. Ass’n v.
Azar, 931 F.3d 1195, 1208 (D.C. Cir. 2019) (“Although we hold that the statute itself does not bar
review, we nonetheless consider ACLA’s ultra vires argument . . .”). Indeed, many of the cases
Plaintiffs cite are explicit that no statutory barrier to review applied. See, e.g., Aid Ass’n for
Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1173 (D.C. Cir. 2003) (holding that the APA “does
not repeal the review of ultra vires actions” (internal citation and quotation marks omitted);
Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (same). The point of
ultra vires review is that it provides a non-statutory cause of action even in the absence of an
affirmative authorization, not that it overrides a sufficiently clear statutory preclusion of review.
See, e.g., Reich, 74 F.3d at 1327.
But that non-statutory cause of action “is intended to be of extremely limited scope.”
Griffith v. Federal Labor Relations Authority, 842 F.2d 487, 493 (D.C. Cir. 1988). For an ultra
vires claim to succeed, the agency “must have stepped so plainly beyond the bounds of the
[relevant statute], or acted so clearly in defiance of it, as to warrant the immediate intervention of
an equity court.” Local 130, IUERMW v. McCulloch, 345 F.2s 90, 95 (D.C. Cir. 1965). In other
words, a plaintiff raising such a claim “must show a ‘patent violation of agency authority.’” Am.

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Clinicl Lab. Ass’n, 931 F.3d at 1208 (quoting Indep. Cosmetic Mfrs. & Distribs., Inc. v. U.S. Dep’t
of Health, Educ. & Welfare, 574 F.2d 553, 555 (D.C. Cir. 1978)).
None of the cases Plaintiffs cite are to the contrary. Armstrong v. Exceptional Child Center,
575 U.S. 320, 327 (2015), for example, recognized the general “power of federal courts of equity
to enjoin unlawful executive action,” but held that Congress had precluded such equitable review
under the statute at issue in that case. 575 U.S. at 328. Likewise, Harmon v. Brucker, 355 U.S. 579
(1958), exercised that equitable power to overturn an agency action that the Solicitor General
conceded was “not sustainable” on the merits. 355 U.S. at 582. And Federal Defenders of N.Y.,
Inc. v. Federal Bureau of Prisons, 954 F.3d 118, 132–134 (2d Cir. 2020), merely recognized that
“the precise scope and contours of the court’s equitable powers of this nature are ill-defined,”
including the question of “whether the APA in any way displaces suits in equity,” and did not
attempt to exercise that power or provide any specific guidance for the district court on remand.
954 F.3d at 134.
However ill-defined the contours of this Court’s equitable powers may be, the relevant
precedents are perfectly clear that an ultra vires cause of action requires a showing that the agency
action was patently, not just arguably, illegal. Plaintiffs have pointed to no authority applying a
lower standard to an ultra vires claim, and they do not even attempt to argue that their FVRA
claims demonstrate the requisite “patent” violation. Plaintiffs thus may not rely on non-statutory
review.
B.

The Directive Is Not Final Agency Action

The APA provides a cause of action to challenge final agency actions. See 5 U.S.C. § 704.
The Directive, as Defendants explained in their opening brief, is not a final agency action within
the meaning of the APA, because it has no direct legal effects, determines no rights or obligations,
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and produces no legal consequences. Defs.’ Mem. at 20–21 (quoting Salazar v. King, 822 F.3d 61,
82 (2d Cir. 2016).1
Plaintiffs start off on the wrong foot by arguing that the Directive is an agency “action” for
APA purposes, which Defendants have never denied. Pls.’ Mem. at 47 (citing 5 U.S.C. § 551(4)).
They likewise misfire when they attack “the novel proposition,” which Defendants have never
asserted, that only “‘the final decision on any particular [individual’s] application’ for relief from
a government agency” qualifies as final agency action. Id. at 48 (quoting Defs’ Mem. at 21).
Defendants’ argument, instead, is that the particular Directive at issue in this case produces no
legal consequences for anyone, does not directly affect any parties, and does not determine any
rights or obligations. Defs.’ Mem. at 21. Moreover, this particular Directive does not grant any
petitioner the right to remain in the United States, or finally determine any petitioner’s obligation
to comply with a final order of removal. Those “rights or obligations” are instead determined for
each individual petitioner in the decision on their individual stay application.
Nor does the Directive change the criteria for granting or denying a stay. As Defendants
explained in their opening brief, under both the Directive and the previous guidance it replaced,
the decision to grant a stay of removal is discretionary and requires consideration of the favorable
as well as adverse factors present in a given application. See Defs.’ Mem. at 21–22. Neither policy

1

In light of the Supreme Court’s decision in Department of Homeland Security v. Regents

of Univ. of Cal., --- S. Ct. ---, 2020 WL 3271746 (June 18, 2020), at *8–9, Defendants withdraw
their argument that this case falls under the APA’s exemption for actions committed to agency
discretion by law or 8 U.S.C. § 1252(g)’s jurisdictional bar.
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ever created any right for any individual to receive a stay or offered any basis for an applicant to
“depend upon” receiving one. Id. Plaintiffs notably fail to contest that the texts of the two policies
provide materially indistinguishable substantive standards for determining stay requests. In
particular, nothing in the previous guidance guaranteed a stay to an applicant who presented no
adverse factors or prevented a Field Office Director from exercising her discretion to deny a stay
to such an applicant. Plaintiffs point to nothing in the text of the previous guidance that “virtually
guaranteed” a stay to an applicant with “no serious adverse factors.” Pls.’ Mem. at 48.
The cases Plaintiffs cite as examples of finality, in contrast, all involved agency actions
that had direct legal consequences for the plaintiffs challenging them. In Salazar v. King, 822 F.3d
61, 82 (2d Cir. 2016), for example, the Second Circuit considered a decision by the Department of
Education not to suspend the collection of student loan payments from a putative class of
borrowers; the agency did not contest that its decision on the matter was final. Salazar, 822 F.3d
at 82. The court concluded that “legal consequences flow” from that decision, for the obvious
reason that the plaintiffs in that case were obliged to make payments that they would not have had
to make if the decision had been otherwise. Id. In this case, in contrast, an individual applying for
a stay of removal is in precisely the same legal position after the Directive as before; any change
in the applicant’s rights or obligations occurs only when there is a decision on that individual’s
particular application.
Likewise, in Sharkey v. Quarantillo, 541 F.3d 75, 89 (2d Cir. 2008), the plaintiff alleged
that the Immigration and Naturalization Service crossed out a stamp in her passport that provided
“Temporary Evidence of Lawful Admission for Permanent Residence” and wrote “cancelled with
prejudice” over the seal. Sharkey, 541 F.3d at 79–80. That decision “clearly constituted final

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agency action” because it revoked the plaintiff’s status as a lawful permanent resident. Id. at 89.
The Directive, in contrast, has no direct effect on any individual’s immigration status.
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), meanwhile, involved a Food and
Drug Administration final rule governing prescription drug labeling. Abbott Labs., 387 U.S. at
138. That case stands for the uncontroversial proposition that an individual whose legal rights or
obligations are determined by an agency regulation may seek judicial review without needing to
wait for an enforcement action under the regulation. Id. at 152–153. And Sackett v. EPA, 566 U.S.
120, 126 (2012), involved a “compliance order” that imposed a “legal obligation to ‘restore’ their
property” on the plaintiffs, required them to “give EPA access to their property,” exposed them to
“double penalties in a future enforcement proceeding,” and “severely limited [their] ability to
obtain a permit.” Sackett, 566 U.S. at 126.
Plaintiffs point to no precedent holding that a change in internal agency procedures from
one articulation of an all-things-considered discretionary standard to another determines “rights or
obligations” or produces “legal consequences.” All that remains of their argument is thus their
apparent contention that the Directive in practice changed the substantive standard for stay
applications from “virtually guaranteed” in the absence of “serious adverse factors” to “a totalityof-the-circumstances standard.” See Pls.’ Mem. at 48. But Plaintiffs do not cite any evidence for
that contention, instead providing only speculation that “some people who would have received a
stay under the old policy will be denied one under the new policy.” Id. In the more than nine
months between the issuance of the Directive and Plaintiffs’ brief in this case, Plaintiffs have
identified a single case in which they claim the Directive has made a difference, which they discuss
in a declaration and do not mention in their brief. See Dkt. 44-3 at 9–10, Pendleton Decl. ¶¶ 30–
32. In that case, the U-visa applicant “had no criminal history and no history of immigration fraud,”
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and Asista claims that in its “expert experience,” “USCIS would have swiftly and easily found her
prima facie eligible.” Id. at 9, ¶ 30. According to Asista’s declarant, ICE denied the stay
application, determining that there was “no compelling reason to warrant a favorable exercise of
discretion” in light of “ICE’s mission, current ICE policies and enforcement priorities.” Id., ¶ 31.
That anecdote, however, is far from sufficient to establish Plaintiffs’ factual claims about
the effect of the Directive. To begin with, the declaration does not attempt to claim that the stay
application would have been granted under the previous guidance; it claims only that USCIS
would have returned a favorable “prima facie determination.” But as Plaintiffs themselves point
out in their Statement of Facts, ICE has described the prima facie determination under the previous
guidance as “a simple confirmation that the petition was filed correctly and . . . not a substantive
review of the petition.” Dkt. 44-1 at 5, ¶ 21. And a positive prima facie determination did not
necessarily entail a successful stay application; the previous guidance provided that a FOD should
“view a Stay request favorably” if USCIS determined that the applicant had established prima
facie eligibility and there were no adverse factors present. Venturella Memo, Dkt. 40-7. Even then,
the previous guidance expressly instructed the FOD to “use his or her discretion in making a
determination” of whether to grant a stay of removal. Id. Nor, in light of the Complaint’s
concession that “habeas and mandamus petitions” were “occasionally necessary in the years
before” the Directive for applicants who were denied a stay, Dkt. 34 at 18–19, Compl. ¶ 63, can
Plaintiffs show that that particular applicant would have received a stay under the previous
guidance. Given the discretionary nature of the stay decision both before and since the Directive,
it is doubtful that any individual case could demonstrate the change in substantive standards that
Plaintiffs assert. But Plaintiffs do not offer any facts about any other cases to help bolster their
claim, or to attempt to show that approval rates for stay applications have changed since the
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Directive. Plaintiffs instead provide facts showing only that they have put in more work preparing
applications, and preparing for the possible consequences of a denial, but in the absence of any
evidence from the text of the Directive or its actual application in practice, they cannot show that
it has changed the substantive standards for granting a stay of removal. The Directive thus has no
impact on the rights or obligations of any party, produces no direct effects on anyone, and produces
no legal consequences. It is not a final agency action, and this Court lacks statutory jurisdiction
over Plaintiffs’ challenge.
III.

THE FEDERAL VACANCIES REFORM ACT DOES NOT INVALIDATE THE
DIRECTIVE
As Defendants explained in their opening brief, the Federal Vacancies Reform Act

(“FVRA”) limits the ability of invalidly serving acting officials to perform certain “functions and
duties” of offices requiring Presidential appointment and Senate confirmation (commonly known
as “PAS” offices). 5 U.S.C. §§ 3345 et seq.; Pls.’ Mem. at 26–29. Those limits, however, apply
only to “any function or duty of the applicable office” that is “required by statute” or regulation
“to be performed by the applicable officer (and only that officer).” 5 U.S.C. § 3348(a) (emphasis
added). Setting policy for granting stays of removal to U-visa petitioners does not fit that
description, because there is no statute or regulation requiring the Director of ICE, and only the
Director, to set such policies. Instead, as the validly serving Deputy Director, Albence had full
authority to issue the Directive, both as an exercise of the Secretary of Homeland Security’s
delegated rulemaking power and as an exercise of the ICE Director’s policymaking power.
Because of those delegations, the only potential defect in the Directive was the use of the wrong
signature block, which Plaintiffs do not dispute was harmless error at worst. See Defs.’ Mem. at
29.
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A. Setting Policy Is Not An Exclusive “Function Or Duty” Of The ICE Director
Under 5 U.S.C. § 3348
Plaintiffs argue that setting policy for ICE is an exclusive function of the Director that no
one else can perform, because the DHS organic statute provides that the Director “shall establish
the policies for performing” ICE’s functions, and does not expressly “authorize any other official”
to do so. Pls.’ Mem. at 22. That argument is astonishingly broad, and, if generally accepted, would
eviscerate the operations of the federal government. It is also wrong. Assigning a role to a given
office by statute, without any further restriction, has never been understood to mean that only that
officer and no one else may carry out that role. And with good reason: Requiring express
authorization to delegate functions to subordinates would fly in the face of decades of consistent
agency practice across the government, in which major and minor policymaking responsibilities
are delegated to senior officials and the thousands of employees required to maintain operations.
1.The Director’s policymaking authority is not exclusive
The statute establishing the office of ICE Director provides that the Director “shall
establish the policies for performing such functions” as are “vested in the [Director] by law.” 6
U.S.C. § 252(a)(3). It does not say that only the Director may set policy. And as Plaintiffs concede,
it does not say anything at all about granting stays of removal; that power, instead, comes from a
delegation of authority from the Secretary of Homeland Security. See Dkt. 40-6, DHS Delegation
No. 7030.2. Nothing in the DHS enabling statute makes setting policy for granting stays of removal
an exclusive power of the Director, or prohibits any other official from setting policy. The FVRA
thus poses no barrier to Albence’s exercise of that authority, because it is not “required by statute”
or regulation “to be performed by the applicable officer (and only that officer).” 5 U.S.C.
§ 3348(a). Plaintiffs attempt to sidestep this difficulty by interpreting Section 3348 to apply
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broadly to any “function or duty” that “is assigned to one particular office.” Pls.’ Mem. at 22
(quoting L.M.-M. v. Cuccinelli, --- F. Supp. 3d ---, 2020 WL 985376, at *21 (D.D.C. March 1,
2020)). On Plaintiffs’ reading of Section 3348, it is enough that the relevant statute or regulation
does not expressly “authorize any other official” to carry out the function or duty at issue—
regardless of whether the statute or regulation forbids any other official from doing so.
To begin with, that interpretation is contrary to the plain language of Section 3348. The
relevant question, as Plaintiffs appear to agree, is whether “only the Director” may carry out the
function or duty at issue. Pls.’ Mem. at 20. In other words, if another official could carry out the
function or duty without violating the statute or regulation, it is not a “function or duty” within the
meaning of Section 3348. So, Plaintiffs’ theory would make sense only if assigning a function or
duty to one particular office necessarily implied that no other office could carry it out. In fact,
however, the opposite is the case: “When a statute delegates authority to a federal officer or agency,
subdelegation to a subordinate federal officer or agency is presumptively permissible absent
affirmative evidence of contrary congressional intent.” U.S. Telecom Ass’n v. FCC, 359 F.3d 554,
565 (D.C. Cir. 2004); see also, e.g., Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111,
121 (1947) (“rule-making power may itself be an adequate source of authority to delegate a
particular function”—including issuing subpoenas—“unless by express provision of the Act or by
implication it has been withheld.”). The circuit courts “that have spoken on this issue are
unanimous in permitting subdelegation to subordinates, even where the enabling statute is silent,
so long as the enabling statute and its legislative history do not indicate a prohibition on
subdelegation.” Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183, 1190 (10th Cir. 2014)
(collecting cases). If any doubt remained, moreover, the DHS enabling statute expressly provides
that “[u]nless otherwise provided in the delegation or by law, any function delegated under this
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chapter”—which includes the provision establishing the duties of the ICE Director—“may be
redelegated to any subordinate.” 6 U.S.C. § 455(c).
That reading of the DHS enabling statute also fits with consistent agency practice of
policymaking by officials below the level of Director, both under the old Immigration and
Naturalization Service (“INS”) before the creation of DHS in 2002, and under ICE since then. For
example, the INS’s Executive Associate Commissioner for the Office of Field Operations issued
memoranda setting policy for the level of parole authorization required for detained aliens, as well
as for the release from detention of an alien on an order of recognizance. See Exs. 1, 2. Since the
creation of DHS, both the Acting Director of ICE and the Director of the Office of Detention and
Removal have issued updates, carrying equal weight, to the “Detention and Deportation Officer’s
Field Manual.” See Exs. 3, 4. And the Acting Director of the Office of Detention and Removal
Operations has issued a policy memorandum superseding, in part, an early memo from the Acting
Director of ICE. See Ex. 5. The “policies and procedures” section of the “FOIA Library” on ICE’s
website contains at least twenty six documents issued by officials other than the Director.2 In light
of that consistent agency practice, it is implausible that Congress intended—without ever saying
so directly—to restrict policymaking authority solely to the Director of ICE.
Moreover, if Plaintiffs were correct that Congress makes a given function exclusive merely
by specifying one particular office that may carry out that function, without more, then their case
would fall apart for a different reason. Congress provided that “the Secretary of Homeland
Security” may grant “an administrative stay of a final order of removal” to a U-visa petitioner who

2

See https://www.ice.gov/foia/library (last visited June 22, 2020).
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“sets forth a prima facie case for approval.” 8 U.S.C. § 1227(d)(1). The statute says nothing about
any other official granting such stays. On Plaintiffs’ apparent logic, therefore, only the Secretary
of Homeland Security personally may grant stays of removal to their clients. In which case, an
internal ICE policy setting out the procedure for an action that no one at ICE has the power to take
could have no possible relevance to any concrete interest of Plaintiffs or their clients.
Plaintiffs do not discuss the general presumption of delegability, but they do argue that
when a statute provides that an officer “shall” perform a certain function or duty, that “mandatory
language” means that the officer “may not delegate to lower officials his responsibility” to carry
out that function or duty. Pls.’ Mem. at 24, 27. But that distinction is to no avail. To begin with,
Section 252 on its face does not treat the word “shall” as creating a mandatory and exclusive duty.
In the provision immediately following the grant of policymaking authority, it provides that the
Director “shall oversee the administration of such policies.” 6 U.S.C. § 252(a)(3)(B). On Plaintiffs’
logic, that provision would require the Director—and no one else—to exercise all managerial
responsibility over all of ICE’s functions. Of course, that would be absurd: “it is impossible for a
single individual to perform in person all the duties imposed on him by office.” Parish v. United
States, 100 U.S. 500, 504 (1879). It is thus hardly surprising that Section 252 expressly
contemplates that ICE “employees” other than the Director will have “supervisory and managerial
responsibility.” 6 U.S.C. § 252(a)(5).
Indeed, the only authority Plaintiffs cite for that contention—that the word “shall” makes
a duty exclusive—holds the opposite. In Schaghticoke Tribal Nation v. Kempthorne, this Court
held that a regulation providing that the Assistant Secretary–Indian Affairs within the Department
of the Interior “shall” make acknowledgement determinations for Indian tribes did not mean that
that function was exclusive to the Assistant Secretary for purposes of Section 3348. 587 F. Supp.
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2d 389, 420–21 (D. Conn. 2008). That is hardly surprising, because reading the word “shall” to
prevent subdelegation within an agency would wreak havoc throughout the federal government.
For example, the Medicare statute provides that the Secretary of Health and Human Services “shall
promulgate regulations” on a range of topics. See, e.g., 42 U.S.C. §§ 1395ff(a)(1), 1395hh(a)(1).
The Secretary “in turn has delegated that authority to” the Centers for Medicare and Medicaid
Services (“CMS”), which the Second Circuit has held “clearly” authorizes CMS to make
regulations carrying the force of law. Estate of Landers v. Leavitt, 545 F.3d 98, 105 (2d Cir. 2008).
Likewise, Congress has provided that the Director of the Patent and Trademark Office “shall”
perform various functions, such as issuing patents, notifying the applicant of the rejection of a
patent application, and reissuing amended patents, 35 U.S.C. §§ 131, 132(a), 251(a), but “Congress
obviously assumed that the Director would delegate” those duties to subordinates. Ethicon EndoSurgery, Inc. v. Covidien LP, 812 F.3d 1023, 1032 (Fed. Cir. 2016). Treating every use of the term
“shall” in the United States Code as an exclusive mandate to the officer in question would risk
grinding the government to a halt.
Plaintiffs’ argument that “[u]nder DHS’s organic statutes, the establishment of ICE policies
governing stays of removal is a function that the ICE Director, and only the Director, may
perform” is thus plainly wrong. Pls.’ Mem. at 20 (emphasis added). The Director’s authority to
issue stays of removal for U-visa petitioners comes from a delegation order that, as Plaintiffs
concede, Pls.’ Mem. at 26–27, expressly permits redelegation. See Dkt. 40-6, DHS Delegation No.
7030.2. Likewise, the Director’s authority to “establish the policies for performing” ICE’s
functions is also delegable, because nothing in the statute—including the word “shall”—
overcomes the presumption of delegability and the express statutory authorization for redelegation.
Indeed, as Defendants established in their opening brief, see Defs.’ Mem. at 28, and as Plaintiffs
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do not contest, that authority has been delegated to the Deputy Director during vacancies in the
office of Director. See Dkt. 40-4, DHS Orders of Succession and Delegations of Authorities for
Named Positions, Delegation No. 00106. Plaintiffs’ only answer is to point out that the delegation
order also designates the Deputy Director as “First Assistant” for FVRA purposes, and that the
First Assistant may not carry out any “function or duty” of the vacant office under Section 3348
after the Act’s time limits have expired. Pls.’ Mem. at 27. That argument is beside the point,
however, because policymaking is not an exclusive “function or duty” within the meaning of
Section 3348. Nor does the delegation order purport to delegate only “functions or duties” that fall
under Section 3348; to the contrary, it expressly delegates “all the powers, duties, authorities,
rights, and functions” as well as “any function or duty required by law to be performed exclusively
by the office holder,” except to acting officials who are not “First Assistants,” who may not carry
out exclusive functions or duties. Dkt. 40-4, Delegation No. 00106, § 2(e) & Annex M.
Plaintiffs insist, citing L.M.-M., that Section 3348 does not include “only ‘non-delegable
duties,’” or in other words, that it does include delegable duties. Pls.’ Mem. at 23 (quoting L.M.M., 2020 WL 985376, at *20). That case, however, turned on anti-circumvention reasoning that
does not apply here. As the court in L.M.-M. understood it, the purported acting official in that
case could not qualify as a “first assistant” because “[h]e never did and never will serve in a
subordinate role,” and the office he occupied “never has served and never will serve ‘in a
subordinate capacity’ to any other official.” L.M.-M., 2020 WL 985376, at *15, *16. The office of
“Principal Deputy Director” was created after the vacancy in the office of Director arose, and it
“displaced” the serving Deputy Director in USCIS’s order of succession. Id. at *4. Here, in
contrast, the office of Deputy Director has always been subordinate to the office of Director, and
the order of succession delegating power to that office during a vacancy in the office of Director
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predates the current vacancy (and, indeed, the current administration). See Dkt. 40-4, DHS Orders
of Succession, Delegation No. 00106. This case thus does not present the concerns with potential
abuse of the Secretary’s vesting-and-delegation authority that concerned the court in L.M.-M.
In sum, nothing in the relevant statutes or regulations prevents the delegation of the
Director’s policymaking authority over issuing stays of removal to U-visa applicants. There is thus
no requirement that “only that officer” may perform that policymaking function, and therefore no
barrier to the Deputy Director doing so when the office of Director is vacant. 5 U.S.C. § 3348(a).
2. The Deputy Director was also authorized to exercise the Secretary’s
delegated rulemaking power in issuing the Directive
As Defendants established in their opening brief, Albence has full authority as Deputy
Director and “highest ranking official” to manage ICE during a vacancy in the office of Director,
under a 2004 delegation order from the Secretary of Homeland Security. Defs.’ Mem. at 28. The
Secretary, as “the head of the Department,” has full “direction, authority, and control over it.” 6
U.S.C. § 112(a)(2). That power necessarily includes policymaking authority. The Secretary has
delegated portions of that authority—including the power to publish regulations—to the “highest
ranking official” in each “organizational element” in DHS, including ICE. Dkt. 40-5, Delegation
to Department of Homeland Security Organizational Elements, Delegation No. 0160.1 (March 3,
2004). As Deputy Director, Albence was and remains the “highest ranking official” in ICE. See
Dkt. 40-4, DHS Order of Succession. In that capacity, he had full power to issue the Directive as
an exercise of the Secretary’s—rather than the Director’s—delegated rulemaking authority.

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Nothing in the FVRA or any other statute divests the Deputy Director of this longstanding
authority.
Plaintiffs nevertheless argue that Defendants may not rely on the Secretary’s delegated
rulemaking authority under Section 112, rather than the Director’s authority to set policy under
Section 252. Plaintiffs offer two reasons for their position, neither of which is persuasive. First,
they claim that the specific policymaking authorization in Section 252 takes precedence over the
vesting and delegation clauses in Section 112, on the principle that “the specific governs the
general.” Id. at 23–24 (quoting NLRB v. SW General, Inc., 137 S. Ct. 929, 941 (2017)). That
argument presumes that the only source of the Secretary’s rulemaking authority over ICE is the
provision vesting “[a]ll function of all officers,” including the Director’s policymaking function
under Section 252, in the Secretary. See 6 U.S.C. § 112(a)(3). But Plaintiffs ignore the Secretary’s
own independent authority as “head of the Department” with “direction, authority, and control
over it,” irrespective of the vesting clause. Id. § 112(a)(2) In any case, the principle that the specific
governs the general only applies when the provisions in question are in conflict. See Nitro-Lift
Technologies, LLC v. Howard, 568 U.S. 17, 21–22 (2012). There is no facial conflict in vesting
policymaking authority in both the Secretary and the Director, and thus no need for either provision
to yield to the other. Plaintiffs’ position, however, would create a conflict, because their “specific
governs the general” logic would remove all functions described with more specificity than the
bare term “function” from the scope of the vesting and delegation clauses. In other words, contrary
to the statutory language vesting “all” functions in the Secretary, there would be no functions to
which that clause would apply. Plaintiffs attempt to bolster their argument by pointing to out that
the Secretary’s delegation authority is limited when “otherwise provided by this chapter.” 6 U.S.C.
§ 112(b)(1). The most natural reading of that restriction, however, is that it applies to provisions
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such as 6 U.S.C. § 624(c)(2), which provides that “[t]he Secretary may not delegate” certain
authority to make emergency orders “to any official other than the Director of Cybersecurity and
Infrastructure Security.” Indeed, reading Section 252 to implicitly limit the Secretary’s power to
delegate under Section 112 would create a “specific-governs-the-general” problem of its own:
Section 112(b)(1) specifically permits delegation, whereas Section 252 is silent on the matter.
Plaintiffs are thus plainly wrong that anything in the DHS enabling statute divests the Secretary of
rulemaking authority over the Department or any of its components, including ICE, or of the right
to delegate that authority, as Secretary Ridge did in 2004, to the “highest ranking official” in ICE,
namely, Deputy Director Albence. See Dkt. 40-5, Delegation No. 0160.1.
Second, Plaintiffs invoke general concerns about the statutory purpose of the FVRA, which
they claim is “to prevent agencies from using their vesting-and-delegation provisions to
circumvent the requirements of the Vacancies Act and Appointments Clause.” Pls.’ Mem. at 24.
Whatever the merits of that anti-circumvention rationale may be in a case that presents the issue,
it plainly has no application here. Plaintiffs cannot possibly argue that a delegation made in 2004
constitutes an attempt to end-run a restriction that did not arise until more than fifteen years after
the delegation was made. Plaintiffs claim that Section 3347 “forecloses” the possibility of the
Deputy Director exercising the Secretary’s delegated authority during a vacancy in the office of
Director, because it provides that vesting-and-delegation provisions like the one in Section 112 do
not provide an alternative to the FVRA to authorize service in an acting capacity. Id. at 25. But
that argument merely begs the question. Defendants do not argue that the Secretary somehow

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authorized Albence to serve as Acting Director, but rather that Albence had the authority to issue
the Directive as Deputy Director.
In any case, Plaintiffs’ argument gets the text of the FVRA exactly backwards. Section
3348 applies to sub-cabinet officials only if there is no “statutory provision [that] expressly
prohibits the head of the Executive agency from performing the functions and duties of such
office,” 5 U.S.C. § 3348(e)(5), and it expressly contemplates “the head of such Executive agency”
performing “any function or duty of such office” while the office is vacant, id. § 3348(b)(2). In
other words, if Plaintiffs were correct that Section 252 prohibited the Secretary of DHS from
making policy for ICE, then Section 3348 would not apply to this case on its own terms.
3. Albence is validly serving as Deputy Director
According to Plaintiffs, Albence might not be validly serving as Deputy Director because
it is “far from clear” that Ronald Vitiello validly served as Acting Director before him. Pls.’ Mem.
at 28. That argument, however, appears nowhere in the Amended Complaint, see generally Dkt.
34, Am. Compl., and is thus not properly before this Court, see, e.g., Redd v. Wright, 597 F.3d
532, 539 (2d Cir. 2010) (claim “was not properly before the district court” when it appeared
“[n]owhere in the complaint”). Plaintiffs cannot raise it for the first time in their summary
judgment briefing. See, e.g. Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (“a
party is not entitled to amend its complaint through statements made in motion papers”). Even if
Plaintiffs could raise that argument at this stage in the litigation, moreover, they have chosen not
to do so. By consciously failing to argue that Vitiello’s service was unauthorized by Section
3345(a)(1), and instead claiming only that it “appears unauthorized,” Pls. Mem. at 29 (emphasis
added), Plaintiffs have waived that argument. See Corporacion Mexicana De Mantenimiento
Integral v. Pemex-Exploracion y Produccion, 832 F. 3d 92, 101 n.2 (2d Cir. 2016) (“The term
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‘waiver’” applies to “a litigant’s intentional relinquishment of a known right.” (internal citation
and quotation marks omitted)).
Considering Plaintiffs’ gesture toward a challenge to Vitiello’s service would be
particularly inappropriate because it would require this Court to resolve a question of first
impression without proper briefing. Specifically, Plaintiffs attempt to shoehorn Vitiello’s service
into the entirely different fact-pattern in L.M.-M., claiming that he could not serve as “First
Assistant” because his service began after the vacancy arose. Pls.’ Mem. at 29. But as L.M.-M.
noted, whether “the first-assistant default rule applies only to individuals serving as first assistants
at the time the vacancy arises” is “a difficult question that the Office of Legal Counsel has
answered differently at different times . . . and that the courts have not had the occasion to resolve.”
L.M.-M., 2020 WL 985376, at *15; see also SW General, Inc. v. NLRB, 796 F.3d 67, 76 (D.C. Cir.
2015) (noting that “subsection (a)(1) may refer to the person who is serving as first assistant when
the vacancy occurs” but “we do not decide its meaning today.”). In L.M.-M., the court had no need
to resolve that question because it held that the office of “Principal Deputy Director,” which came
into existence only after the vacancy in the office of Director of U.S. Citizenship and Immigration
Services and would cease to be the First Assistant as soon as a new Director was appointed, had
never been and never would be subordinate to the office of Director. Id. at *15–16. (citing 5 U.S.C.
§ 3345(a)). That arrangement has no analogue here: the office of Deputy Director was subordinate
to the office of Director before the vacancy arose, and nothing in the current regulations stands to
change that at any point in the future. See Delegation No. 00106 (Dec. 15, 2016). This case thus
would present the issue left unresolved in SW General and L.M.-M. of whether a First Assistant

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appointed post-vacancy may validly serve under Section 3345(a)(1)—if Plaintiffs had chosen to
make that argument. But they did not.
B. No Other Provision Of The FVRA Invalidates The Directive
Plaintiffs maintain that even if policymaking is not a “function or duty” of the ICE Director
for purposes of Section 3348, they are still entitled to relief because, they claim, the Directive
violates Sections 3345, 3346, and 3347 of the FVRA, making it subject to invalidation under the
APA. Pls.’ Mem. at 31–32. That argument is meritless.
Plaintiffs point out that the Section 3348’s definition of “function or duty” by its own terms
applies only to that section. See 5 U.S.C. § 3348(a). They therefore surmise that “the action can be
illegal . . . even if it is not an action that is exclusively assigned to the vacant office.” Pls.’ Mem.
at 31. But Plaintiffs conspicuously fail to offer any reason to believe that the Directive actually is
illegal under any other provision of the FVRA, or to provide any definition of “function or duty”
that would bring the Directive within the scope of Section 3345, 3346, or 3347 but not 3348. The
only possible such definition, however, is “actions that are not exclusively assigned to the vacant
office”—in other words, actions that a validly serving Director or Acting Director could take, but
that other officials can also take. Treating such actions as “voidable” under the APA may make
sense in a case in which the official’s only basis for taking the action in question is service in an
acting capacity. Cf, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d
1, 12 (D.C. Cir. 2019) (noting that the Senate-confirmed Attorney General validly ratified a
challenged action of the Acting Attorney General who served before his confirmation). But as
explained above, Albence had full authority to issue the Directive as Acting Director. So Plaintiffs
must intend their definition of “function or duty” for purposes of Sections 3345, 3346, and 3347
to cover actions which the official in question had the power to take, but that the Director could
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also take. Even a moment’s reflection reveals that such a definition would create chaos: every
action taken by any ICE officer or employee (except, perhaps, the Chief of Policy and Strategy
and the Principal Legal Advisor, some of whose functions are provided by statute, see 6 U.S.C. §§
252(b), (c)) would become subject to invalidation under the APA. Likewise, any vacancy at the
head of a department would render every action taken by every officer or employee of that
department illegal, given, as Plaintiffs insist, see Pls.’ Mem. at 24, that every cabinet-level
department has a vesting-and-delegation statute that empowers the department head to carry out
all of the department’s functions.
The authorities Plaintiffs cite do not remotely support such an extravagant overreach. In
SW General, the D.C. Circuit considered an action that all parties agreed was a “function or duty”
of the General Counsel of the National Labor Relations Board; the only reason the court considered
that Section 3348 did not apply was that provision’s express exemption for the NLRB’s General
Counsel. 796 F.3d 67, 78 (D.C. Cir. 2015) (quoting 5 U.S.C. § 3348(e)(1)); see also Hooks v.
Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 564 (9th Cir. 2016). Because the NLRB did not
argue that Section 3348’s exemption “could be understood more broadly to wholly insulate the
Acting General Counsel’s actions even in the event of an FVRA violation,” the court “assume[d]”
that “the actions of an improperly serving Acting General Counsel [are] voidable, not void.” SW
General, 796 F.3d at 79. The court thus had no occasion to consider whether the term “function or
duty” could plausibly have a different meaning in the rest of the FVRA than its definition in
Section 3348. Likewise, L.M.-M. did not consider any argument that issuing the policy in question

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in that case was not a “function or duty” of the vacant office under any provision of the FVRA,
not just Section 3348. See L.M.-M., 2020 WL 985376, at *23–24.
In any case, even if issuing the Directive did qualify as a “function or duty” under Sections
3345, 3346, and 3347, and was “voidable” under the APA, the doctrine of harmless error would
apply. See 5 U.S.C. § 706 (in reviewing agency action, “due account shall be taken of the role of
harmless error”); S.W. General, 796 F.3d at 79 (analyzing “voidable, not void” action under the
FVRA for harmless error). To prevail on this argument, Plaintiffs thus would still need to show
that Albence could not have issued the Directive in his capacity as Deputy Director. For the reasons
discussed above, they cannot do so.
There is thus no question that Albence is validly serving as Deputy Director. Although the
FVRA’s time limits prevented Albence from serving as Acting Director after August 1, 2019,
nothing in the FVRA limits his authority as Deputy Director. Because the Deputy Director has the
authority to make policies such as the Directive at issue in this case, there is no basis under the
FVRA to invalidate the Directive.
CONCLUSION
For the foregoing reasons, Defendants respectfully ask the Court to grant Defendants’
motion for summary judgment.
Dated: June 23, 2020

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
CHRISTOPHER R. HALL
Assistant Branch Director

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/s/ Cormac A. Early
CORMAC A. EARLY (phv10560)
Trial Attorney, U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, D.C. 20005
Phone: (202) 616-7420
Cormac.A.Early@usdoj.gov

Counsel for Defendants

CERTIFICATE OF SERVICE
I hereby certify that on June 23, 2020, the foregoing brief was filed electronically. Notice
of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system
or by mail to anyone unable to accept electronic filing. Parties may access this filing through the
Courts system.

/s/ Cormac A. Early
CORMAC A. EARLY
TRIAL ATTORNEY

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