Case 3:20-cv-00206-JAM Document 51 Filed 07/17/20 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

ASISTA IMMIGRATION ASSISTANCE, Inc.,
SANCTUARY FOR FAMILIES, Inc.,
Plaintiffs,
v.
MATTHEW T. ALBENCE, in his official
capacity, et al.,

Case No. 3:20-cv-00206-JAM
Judge: Hon. Jeffrey A. Meyer

Defendants.

REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT

Brittany Williams (phv10516)
THE PROTECT DEMOCRACY PROJECT
1900 Market Street, 8th Floor
Philadelphia, PA 19103
(202) 236-7396
brittany.williams@protectdemocracy.org
Benjamin L. Berwick (phv04462)
THE PROTECT DEMOCRACY PROJECT
15 Main Street, Suite 312
Watertown, MA 02472
(202) 856-9191
ben.berwick@protectdemocracy.org
Rachel E. Goodman (phv10513)
THE PROTECT DEMOCRACY PROJECT
115 Broadway, 5th Floor
New York, NY 10006
(202) 997-0599
rachel.goodman@protectdemocracy.org

Elizabeth B. Wydra (phv10541)
Brianne J. Gorod (phv10524)
Brian R. Frazelle (phv10535)
CONSTITUTIONAL ACCOUNTABILITY CENTER
1200 18th Street NW, Suite 501
Washington, DC 20036
(202) 296-6889
elizabeth@theusconstitution.org
brianne@theusconstitution.org
brian@theusconstitution.org
Marisol Orihuela (ct30543)
JEROME N. FRANK LEGAL SERVICES
ORGANIZATION
P.O. Box 209090
New Haven, CT 06520
(202) 432-4800
marisol.orihuela@yale.edu

 Case 3:20-cv-00206-JAM Document 51 Filed 07/17/20 Page 2 of 28

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................................................................................

ii

INTRODUCTION ..................................................................................................................

1

ARGUMENT ..........................................................................................................................

2

I.

Plaintiffs Have Standing to Challenge the Albence Policy .....................................

2

II.

Plaintiffs May Challenge the Albence Policy Under the APA ................................

5

III.

Plaintiffs May Challenge the Albence Policy as Ultra Vires ..................................

8

IV. The Albence Policy Is Void Under the FVRA ........................................................

8

V.

The Albence Policy Must Be Set Aside Under the APA .........................................

18

CONCLUSION .......................................................................................................................

20

i

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TABLE OF AUTHORITIES
Page(s)
CASES
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) ..................................................................................................

7

Am. Fed. Grp., Ltd. v. Rothenberg,
136 F.3d 897 (2d Cir. 1998) ......................................................................................

20

Anderson v. Yungkau,
329 U.S. 482 (1947) ..................................................................................................

10

Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150 (1970) ..................................................................................................

3

Bennett v. Spear,
520 U.S. 154 (1997) ..................................................................................................

5, 7

Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay,
868 F.3d 104 (2d Cir. 2017) ......................................................................................

3

Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ..................................................................................................

4, 5

Cudahy Packing Co. v. Holland,
315 U.S. 357 (1942) ..................................................................................................

17

The Emily,
22 U.S. 381 (1824) ...................................................................................................

14

Equal Rights Ctr. v. Post Properties, Inc.,
633 F.3d 1136 (D.C. Cir. 2011) ................................................................................

4

Estate of Landers v. Leavitt,
545 F.3d 98 (2d Cir. 2008) ........................................................................................

12

Ethicon Endo-Surgery, Inc. v. Covidien LP,
812 F.3d 1023 (Fed. Cir. 2016) .................................................................................

12

Fed. Defs. of N.Y., Inc. v. Fed. Bureau of Prisons,
954 F.3d 118 (2d Cir. 2020) ......................................................................................

8

Fleming v. Mohawk Wrecking & Lumber Co.,
331 U.S. 111 (1947) ..................................................................................................

13, 16

Griffith v. Fed. Labor Relations Auth.,
842 F.2d 487 (D.C. Cir. 1988) ..................................................................................

8

ii

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TABLE OF AUTHORITIES – cont’d
Page(s)
Halverson v. Slater,
129 F.3d 180 (D.C. Cir. 1997) ..................................................................................

14, 16

Inland Empire Pub. Lands Council v. Glickman,
88 F.3d 697 (9th Cir. 1996) .......................................................................................

13, 16

In re United States,
10 F.3d 931 (2d Cir. 1993) ........................................................................................

14, 16

Jicarilla Apache Nation v. U.S. Dep’t of Interior,
613 F.3d 1112 (D.C. Cir. 2010) ................................................................................

19

Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969 (2016) ..............................................................................................

10, 13

Knife Rights, Inc. v. Vance,
802 F.3d 377 (2d Cir. 2015) ......................................................................................

5

Kobach v. U.S. Election Assistance Comm’n,
772 F.3d 1183 (10th Cir. 2014) .................................................................................

16, 17

Leedom v. Kyne,
358 U.S. 184 (1958) ..................................................................................................

8

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,
523 U.S. 26 (1998) ....................................................................................................

10

L.M.-M. v. Cuccinelli,
2020 WL 985376 (D.D.C. Mar. 1, 2020) .................................................................

9, 15, 17

Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) ..................................................................................................

3

Nnebe v. Daus,
644 F.3d 147 (2d Cir. 2011) ......................................................................................

4

N.Y. Civil Liberties Union v. N.Y.C. Transit Auth.,
684 F.3d 286 (2d Cir. 2012) ......................................................................................

3

Parish v. United States,
100 U.S. 500 (1879) ..................................................................................................

12

Sackett v. EPA,
566 U.S. 120 (2012) ..................................................................................................

7

Schaghticoke Tribal Nation v. Kempthorne,
587 F. Supp. 2d 389 (D. Conn. 2008) .......................................................................

17

iii

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TABLE OF AUTHORITIES – cont’d
Page(s)
Schaghticoke Tribal Nation v. Kempthorne,
587 F.3d 132 (2d Cir. 2009) ......................................................................................

17

Sharkey v. Quarantillo,
541 F.3d 75 (2d Cir. 2008) ........................................................................................

7

Shinseki v. Sanders,
556 U.S. 396 (2009) ..................................................................................................

19

Shook v. D.C. Fin. Responsibility & Mgmt. Assistance Auth.,
132 F.3d 775 (D.C. Cir. 1998) ..................................................................................

11

Sierra Club v. Trump,
2020 WL 3478900 (9th Cir. June 26, 2020)..............................................................

8

Spokeo, Inc. v. Robins,
136 S. Ct. 1540 (2016) ..............................................................................................

3

SW Gen., Inc. v. NLRB,
796 F.3d 67 (D.C. Cir. 2015) ....................................................................................

19

United States v. Giordano,
416 U.S. 505 (1974) ..................................................................................................

12, 13, 16

United States v. Mango,
199 F.3d 85 (2d Cir. 1999) ........................................................................................

11, 13

U.S. Army Corps of Engineers v. Hawkes Co.,
136 S. Ct. 1807 (2016) ..............................................................................................

7

U.S. Telecom Ass’n v. FCC,
359 F.3d 554 (D.C. Cir. 2004) ..................................................................................

16

Warth v. Seldin,
422 U.S. 490 (1975) ..................................................................................................

3

STATUTES
5 U.S.C. § 706 ...............................................................................................................

2, 18, 19

5 U.S.C. § 3348(a) ........................................................................................................

1, 9, 10

5 U.S.C. § 3348(b) ........................................................................................................

15

5 U.S.C. § 3348(d) ........................................................................................................ 1, 9, 18, 19
iv

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TABLE OF AUTHORITIES – cont’d
Page(s)
6 U.S.C. § 112 ............................................................................................................ 9, 12, 13, 14
6 U.S.C. § 113(a) ..........................................................................................................

11

6 U.S.C. § 113(f) ...........................................................................................................

11

6 U.S.C. § 252 ............................................................................................................ 8, 10, 11, 13
6 U.S.C. § 350 ...............................................................................................................

11

6 U.S.C. § 455 ...............................................................................................................

15

6 U.S.C. § 542 Note .......................................................................................................

10

6 U.S.C. § 624 ...............................................................................................................

14

OTHER AUTHORITIES
Fed. R. Civ. P. 8 ............................................................................................................

19

ICE, Fact Sheet: Revision of Stay of Removal Request Reviews for U Visa Petitioners
(Aug. 2, 2019) ...........................................................................................................

6

Jerry L. Mashaw & Avi Perry, Administrative Statutory Interpretation in the
Antebellum Republic, 2009 Mich. St. L. Rev. 7 (2009) ...........................................

12

The Vacancies Act: Statement Before the Committee on Governmental Affairs,
United States Senate, 22 Op. O.L.C. 44 (1998) ........................................................

9

v

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INTRODUCTION
Immigration and Customs Enforcement (ICE) is empowered to make critical decisions that
can mean life or death for the people they affect—including whether to deport crime victims who
are assisting law enforcement and have applied for “U visas” that would allow them to remain in
this country. To promote accountability and ensure that ICE wields its powers responsibly,
Congress required the agency to be led by a Director who must be nominated by the President,
confirmed by the Senate, and possess key professional qualifications. Congress further specified
that this Director “shall establish the policies” for ICE’s performance of its functions.
Despite these requirements, ICE has operated without a Senate-confirmed Director for the
entire Trump administration. Other personnel have carried out the Director’s responsibility for
establishing ICE’s policies. And Defendants claim that neither the Federal Vacancies Reform Act
(FVRA) nor ICE’s enabling legislation imposes any limit on that practice. So when the Director’s
office is vacant and the FVRA’s time limits on acting service have expired, an Acting Director
may simply switch titles to “Senior Official Performing the Duties of the Director” and continue
exercising the Director’s powers without presidential nomination or Senate confirmation.
Defendants also insist that even though Matthew Albence was not ICE’s Director or a valid
Acting Director when he established the agency’s new stay-of-removal policy, he could establish
the policy by virtue of his position as Deputy Director. That defense has two insuperable flaws.
First, under the FVRA, establishing the policies for performing ICE’s functions is a duty
“required by statute” to be performed by the ICE Director “and only that officer.” 5 U.S.C.
§ 3348(a)(2)(A)(ii). If it is performed by “any person” who is neither the Director nor a validly
serving Acting Director, the resulting policy “shall have no force or effect.” Id. § 3348(d)(1).
None of Defendants’ objections to that straightforward conclusion withstands scrutiny. And their

1

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interpretation would mean that no action taken by anyone in the Department of Homeland Security,
or any comparable department, could ever be void under the FVRA. That view, which they
nowhere disavow, would write § 3348 out of existence.
Second, even if the new policy were not void under the FVRA, it must still be set aside
under the Administrative Procedure Act (APA). When a person’s tenure as an acting officer
exceeds the FVRA’s time limits, as here, agency actions taken by that person are “not in
accordance with law.” 5 U.S.C. § 706(2)(A). Defendants concede this point in principle, but they
maintain that it does not apply here because Albence’s status as Deputy Director independently
empowered him to establish the new policy. Their initial filings, however, failed to establish that
Albence’s appointment as Deputy was lawful—or even identify who appointed him. And after
Plaintiffs showed that the person who likely made the appointment lacked authority to do so,
Defendants incredibly still refuse to reveal who appointed Albence as Deputy Director, or to mount
a defense of his appointment. Because Defendants have not substantiated their only defense to
Plaintiffs’ claims, Albence’s action must be set aside as unlawful under the APA.
To avoid these outcomes, Defendants continue to press various threshold arguments
against Plaintiffs’ right to bring this suit. All are meritless. This Court should grant Plaintiffs’
motion and vacate the harmful new stay policy adopted by an illegally serving head of ICE.
ARGUMENT
I.

Plaintiffs Have Standing to Challenge the Albence Policy.
As Plaintiffs have shown, Supreme Court and Second Circuit precedent clearly supports

standing here. Defendants’ response largely restates their initial arguments: the policy cannot
inflict a cognizable harm because no U-visa applicant has a “legally protected right to a stay,” and
the diversion of Plaintiffs’ resources in response to the new policy is not an injury in fact because

2

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these costs were “voluntarily incurred.” Def. Reply 3. Defendants are mistaken on both points.
Plaintiffs need not demonstrate that U-visa applicants have a legal entitlement to a stay of
removal. See Pls. Mem. 43-44. Because Plaintiffs have alleged “organizational” standing, not
associational or representational standing, whether their clients have suffered a cognizable harm
is irrelevant. N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012).
Likewise, alleging “an invasion of a legally protected interest,” Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1548 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 562-63 (1992)), does not, as
Defendants would have it, require the deprivation of a “legally protected right.” Def. Reply 3
(emphasis added). To give but one example, the “desire to . . . observe an animal species . . . for
purely esthetic purposes” is not a legally protected right, but it “is undeniably a cognizable interest
for purpose of standing.” Lujan, 504 U.S. at 562-63 (emphasis added). Such an interest simply
requires “a personal stake in the outcome of the controversy,” Warth v. Seldin, 422 U.S. 490, 498
(1975) (quotation marks omitted), and a plaintiff has an adequate personal stake when he alleges
“that the challenged action has caused him injury in fact, economic or otherwise,” Ass’n of Data
Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970).
The Second Circuit has “repeatedly held that only a ‘perceptible impairment’ of an
organization’s activities is necessary for there to be an injury in fact,” Centro de la Comunidad
Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 110 (2d Cir. 2017) (citing cases)
(quotation marks omitted), and that such impairment occurs “where an organization diverts its
resources away from [those] activities,” id. at 111 (citing cases). In short, “an organization shows
injury-in-fact where, as here, a policy has impeded . . . the organization’s ability to carry out [its]
responsibilit[ies].” Id. at 110 (quotation marks omitted); see NYCLU, 684 F.3d at 295 (standing
where plaintiff “alleged an interest in open access to . . . hearings as a matter of professional

3

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responsibility to clients” and where “the access policy has impeded . . . the organization’s ability
to carry out this aforementioned responsibility”); Nnebe v. Daus, 644 F.3d 147, 157 (2d Cir. 2011)
(standing where plaintiff “expended resources to assist its members who face summary
suspension”). Despite Defendants’ wishful thinking, the Circuit has recognized standing in each
of these cases based solely on diversion of resources and impairment of mission.
As these cases illustrate, moreover, the question is not whether an organization’s spending
was “voluntarily incurred.” Def. Reply 3. Every expenditure of resources by an organization in
service of its mission could be characterized that way, and so Defendants’ broad rule is
incompatible with organizational standing. Such standing does not “depend on the voluntariness
or involuntariness of the plaintiffs’ expenditures,” but rather “on whether they undertook the
expenditures in response to, and to counteract, the effects of the defendants’ [action].” Equal
Rights Ctr. v. Post Properties, Inc., 633 F.3d 1136, 1140 (D.C. Cir. 2011). Nor is there any support
for Defendants’ variation on this argument—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.” Def. Reply 4.
Defendants do not cite a single decision from any court adopting that rule, and none exists.
Of course, a plaintiff “cannot manufacture standing by choosing to make expenditures
based on hypothetical future harm that is not certainly impending.” Clapper v. Amnesty Int’l USA,
568 U.S. 398, 402 (2013) (emphasis added). But that is not what Plaintiffs are doing: Sanctuary
provides direct legal assistance to U-visa applicants, while ASISTA provides trainings and legal
assistance to individuals representing U-visa applicants. Asnani Decl. ¶¶ 4-6, 11; Pendleton Decl.
¶¶ 4-7. Because ICE has changed its standards for granting stays of removal, Plaintiffs must divert
resources to meet these new standards, which require a more fulsome showing from applicants
than what previously sufficed to obtain a stay. Asnani Decl. ¶¶ 12-21; Pendleton Decl. ¶¶ 19-47.

4

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Plaintiffs are not diverting these additional resources in anticipation of some event that might occur
in the future—some “future injury they purportedly fear.” Clapper, 568 U.S. at 422. Because they
serve individuals who must satisfy ICE’s new standard to obtain stays of removal, professional
responsibility to their clients requires them to take these measures now.1
As Defendants are ultimately forced to concede, precedent confirms that “the diversion of
organizational resources and the impairment of an organization’s mission suffice for standing.”
Def. Reply 4-5. Defendants simply disagree with that precedent. But this Court is bound by it.
II.

Plaintiffs May Challenge the Albence Policy Under the APA.
Defendants continue to argue that the Albence Policy is not reviewable under the APA

because it is not final agency action. But the policy meets the “two conditions [that] must be
satisfied for agency action to be ‘final.’” Bennett v. Spear, 520 U.S. 154, 177 (1997). First, as
Defendants do not seriously contest, the policy provides ICE field offices with definitive, not
“tentative or interlocutory,” rules for processing stay requests, and is therefore the “consummation
of the agency’s decisionmaking process.” Id. at 178 (quotation marks omitted). Second, “legal
consequences will flow” from the policy, id. (quotation marks omitted), because it changed the
standards for adjudicating stay requests.
Remarkably, Defendants claim that the Albence Policy does not “change the criteria for
granting or denying a stay.” Def. Reply 12. A simple comparison of the policy with its predecessor

1

For that reason, Knife Rights, Inc. v. Vance, 802 F.3d 377 (2d Cir. 2015), does not help
Defendants. There, organizations alleged that they incurred expenses opposing the threatened
enforcement of a new criminal law. The Second Circuit agreed that this might demonstrate past
injury supporting a damages action—but found that it was “not an injury that can be redressed
through the prospective declaratory and injunctive relief sought.” Id. at 388. The organizations
also argued that “injunctive relief would redress future injury by precluding defendants from
applying [the new law] in a way that will prompt the[] organizations to incur opposition expenses.”
Id. But the organizations did “not even attempt[]” to show that these “anticipated expenditures”
were “‘certainly impending.’” Id. at 389 (quoting Clapper, 568 U.S. at 409).
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shows otherwise. The old policy dictated that when ICE field offices received a stay application,
they “must” initiate contact with U.S. Citizenship and Immigration Services (USCIS) “to request
a prima facie determination.” Dkt. No. 40-7, at 2. And if USCIS found the applicant prima facie
eligible for a U visa, and no serious adverse factors were present, the field office “should favorably
view [the] alien’s request” and “should generally grant the alien a Stay of Removal.” Id. Field
offices were also required to “consider favorably any humanitarian factors related to the alien or
the alien’s close relatives who rely on the alien for support.” Id. And even if a field office found
that serious adverse factors existed and was therefore “inclined to deny the Stay request despite
the USCIS prima facie eligibility finding,” the office was required to “provide a summary of the
case to [enforcement and removal] Headquarters for further review.” Id. at 3.
Under the Albence Policy, however, ICE “no longer routinely request[s] prima facie
determinations.” Dkt. No. 34-1, at 2. Instead, each field office is given unguided discretion to
“consider the totality of the circumstances,” including “any favorable or adverse factors . . . and
any federal interest(s) implicated.” Id. at 4 (emphasis added). There is no longer any requirement
that field offices present denials to Headquarters for further review.
These are not “materially indistinguishable” standards. Def. Reply 13. ICE itself certainly
recognizes that. Describing the abandonment of the prima facie process, the agency has explained:
“Now, under the ICE Directive 11005.2, ICE officers and attorneys will review the totality of the
circumstances . . . and decide whether a Stay of Removal or terminating proceedings is
appropriate. . . . ICE no longer exempts classes or categories of removable aliens from potential
enforcement.” ICE, Fact Sheet: Revision of Stay of Removal Request Reviews for U Visa
Petitioners

(Aug.

2,

2019),

https://www.ice.gov/factsheets/revision-stay-removal-request-

reviews-u-visa-petitioners (emphasis added).

6

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Apart from misconstruing the new policy, Defendants continue to belabor the idea that
“any change in [an] applicant’s rights or obligations occurs only when there is a decision on that
individual’s particular application.” Def. Reply 13. “This confuses the question whether the
[agency]’s action is final with the separate question whether” the denial of any particular
application “is fairly traceable to [that] action.” Bennett, 520 U.S. at 177 (quotation marks
omitted).

Regardless of whether any individual applicant could make that showing, legal

consequences will flow from the policy because it “alter[s] the legal regime to which the
[applicant] is subject.” Id. at 178. Under longstanding precedent, final action does not require a
“direct effect on any individual’s . . . status.” Def. Reply 14.2 And the new policy’s heightened
standards are no less final simply because they do not categorically foreclose any particular
application. See Sackett v. EPA, 566 U.S. 120, 126 (2012) (an action that “limits . . . the ability to
obtain a permit” was final, though a permit could still be obtained if deemed “clearly appropriate”);
Hawkes, 136 S. Ct. at 1814 (legal consequences can flow from the denial of a “safe harbor”).
By adopting new standards, ICE “has completed its decisionmaking process,” and the new
standards “directly affect” stay applicants and those who assist them. Sharkey v. Quarantillo, 541
F.3d 75, 88 (2d Cir. 2008) (quotation marks omitted).3 The Albence Policy is final agency action.

2

See, e.g., U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1815 (2016)
(describing final action where an agency’s order “specif[ied] which commodities [the agency]
believed were exempt by statute from regulation . . . . [a]lthough the order . . . would have effect
only if and when a particular action was brought against a particular carrier” (quotation marks
omitted)); Abbott Labs. v. Gardner, 387 U.S. 136, 150 (1967) (describing final action where an
agency’s licensing regulation “could properly be characterized as a statement only of its
intentions” and “no license had in fact been denied or revoked”).
3

The effects of the new policy are reflected in how Plaintiffs have adjusted their work.
Before, Plaintiffs’ work on stay applications was typically limited to filling out the application and
attaching a receipt showing that USCIS had received the client’s U-visa petition. Asnani Decl.
¶ 12. “No other documentation or work was required because the USCIS staff trained and assigned
to make U-visas application determinations would also make the prima facie decision.” Pendleton
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III.

Plaintiffs May Challenge the Albence Policy as Ultra Vires.
Even if APA review were not available, Plaintiffs could challenge the Albence Policy as

ultra vires, under the “well-drawn line of precedent establishing that a plaintiff may invoke the
court’s equitable powers to enjoin a defendant” who exceeds lawful authority. Fed. Defs. of N.Y.,
Inc. v. Fed. Bureau of Prisons, 954 F.3d 118, 133 (2d Cir. 2020); accord Sierra Club v. Trump,
2020 WL 3478900, at *11 (9th Cir. June 26, 2020) (permitting ultra vires review).
Defendants concede that “ultra vires review . . . provides a non-statutory cause of action
even in the absence of an affirmative authorization.” Def. Reply 10. But they continue insisting
that “an ultra vires cause of action requires a showing that the agency action was patently, not just
arguably, illegal.” Id. at 11. As the cases plainly show, however, that standard applies only where
Congress has “precluded review.” Griffith v. Fed. Labor Relations Auth., 842 F.2d 487, 492 (D.C.
Cir. 1988) (citing Leedom v. Kyne, 358 U.S. 184 (1958)). While this “Leedom v. Kyne exception”
requires “patently” illegal action, id. at 493, that heightened standard is not applied in any other
context. And Defendants identify no “statutory preclusion of review” here. Def. Reply 10.
IV.

The Albence Policy Is Void Under the FVRA.
As Plaintiffs have explained, DHS’s enabling statute demands that the ICE Director “shall

establish the policies” for performing the functions vested in ICE. 6 U.S.C. § 252(a)(3)(A). Those
functions include deciding whether to grant stays of removal to U-visa applicants. Pls. Mem. 10.
And the Albence Policy “sets forth [ICE] policy” for deciding whether to grant such stays. Dkt.
No. 34-1, at 1. By establishing this policy, therefore, Albence performed “a function or duty” that

Decl. ¶ 21. Now, however, stay applications require “a detailed packet of information, which may
include . . . a client affidavit; a legal brief; letters and affidavits by friends, family, and community
members; and other evidence such as school diplomas or professional certificates, children’s birth
certificates, medical records, and criminal certificates of disposition.” Asnani Decl. ¶ 14.
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is required by statute to be performed “only” by the ICE Director. 5 U.S.C. § 3348(a)(2)(A)(ii).
The policy therefore has no “force or effect” under the FVRA. Id. § 3348(d)(1).
On Defendants’ view of the law, however, no action taken by any ICE official can ever be
void under the FVRA. Indeed, no action taken by anyone across the entire Department of
Homeland Security can suffer that penalty. As Defendants see it, the Secretary’s vesting-anddelegation statute, 6 U.S.C. § 112, makes every function of the Department “delegable,” which in
turn means that no function is assigned by statute to a single officer “and only that officer.”
5 U.S.C. § 3348(a)(2)(A)(ii). If Defendants’ understanding were correct, there would be little
incentive for the Department to comply with the FVRA’s careful limits on acting service during
vacancies—or to obey the Appointments Clause by submitting acceptable nominees to the Senate.
Instead, the Department could be run indefinitely by a series of acting officers, senior officials
“performing the duties of” vacant offices, and lower-level deputies.
The implications do not stop there. “[E]very cabinet-level department has some version of
[the Department’s] vesting and delegation statutes.” L.M.-M. v. Cuccinelli, 2020 WL 985376, at
*20 (D.D.C. Mar. 1, 2020) (quotation marks omitted); see id. n.11 (listing statutes). And so “the
logic of this position would cover all (or almost all) departments subject to the FVRA.” Id. Across
the federal government, the FVRA—and the Appointments Clause—would become a nullity,
because “statutes vesting an agency’s powers in the agency head and allowing delegation to
subordinate officials” could be used in their place. The Vacancies Act: Statement Before the
Committee on Governmental Affairs, United States Senate, 22 Op. O.L.C. 44, 44 (1998). And that
is precisely what Congress enacted the FVRA to prevent. See Pls. Mem. 6-8, 25-26.
All this indicates that something has gone deeply wrong with Defendants’ interpretation of
the FVRA. Closer inspection bears that out. Defendants’ understanding of both the FVRA and

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DHS’s enabling legislation is belied by the text, structure, and purpose of those statutes.
Background presumptions of administrative law, on which Defendants heavily rely, do not suggest
otherwise. And despite Defendants’ hyperbolic claims, Plaintiffs’ straightforward interpretation
of these statutes poses no threat to the routine functioning of government.
A. Defendants deny that establishing the policies for performing ICE’s functions is a duty
“required by statute” to be performed “only” by the ICE Director. 5 U.S.C. § 3348(a)(2)(A)(ii).
According to Defendants, “nothing in the relevant statutes . . . prevents the delegation of the
Director’s policymaking authority.” Def. Reply 23. But that is wrong.
To start, the statutes plainly state 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)(A)
(emphasis added); id. § 542 Note. While “every use of the term ‘shall’ in the United States Code”
does not, standing alone, create “an exclusive mandate to the officer in question,” Def. Reply 21,
statutory context here supports the normal meaning of “shall,” which “usually connotes a
requirement,” Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977 (2016), and a
“mandatory . . . obligation impervious to . . . discretion,” Lexecon Inc. v. Milberg Weiss Bershad
Hynes & Lerach, 523 U.S. 26, 35 (1998) (citing Anderson v. Yungkau, 329 U.S. 482, 485 (1947)).
First, the text of § 252 contrasts the Director’s exclusive responsibility for establishing ICE
policies with other responsibilities that different ICE personnel may perform. Immediately after
instructing that the Director “shall establish the policies for performing [the] functions” vested in
ICE, the statute provides that the Director also “shall oversee the administration of such policies.”
6 U.S.C. § 252(a)(3)(A), (B). By requiring the Director to “oversee the administration” of ICE’s
policies, the statute signals that people besides the Director may implement those policies—
otherwise, there would be nothing for the Director to “oversee.” The statute, in other words,

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distinguishes between duties that the Director must personally perform (establishing the agency’s
policies and overseeing their administration) and duties that the Director need not personally
perform (implementing those policies). See United States v. Mango, 199 F.3d 85, 91 (2d Cir.
1999) (“specific authority to subdelegate one power within a given piece of legislation may
indicate that Congress did not intend to allow subdelegation of other powers”).
That conclusion is buttressed by surrounding context. The Director is “[t]he head” of the
agency, 6 U.S.C. § 252(a)(2), and is the only ICE official who must be presidentially nominated
and Senate confirmed, id. § 113(a)(1)(G). Congress further required the Director to “have a
minimum of 5 years professional experience in law enforcement, and a minimum of 5 years of
management experience.” Id. § 252(a)(2)(B). It would have made no sense for Congress to
impose these specific requirements of professional experience and Senate confirmation if the
Director’s leadership duties could simply be reassigned to someone else who does not meet those
requirements. See Shook v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 132 F.3d 775, 784
(D.C. Cir. 1998) (“The specific qualifications set forth . . . for Control Board membership and the
mechanism of Presidential appointment of the Control Board . . . indicate that Congress wanted
the Control Board itself to exercise the powers of governance over the District.”). Reinforcing this
connection between the leadership duties of the ICE Director and the qualifications for holding
that office, the very same statutory provision that requires Senate confirmation for the Director,
6 U.S.C. § 113(a)(1)(G), explicitly requires that the Director “shall perform the functions
specified by law for the [Director]’s office,” id. § 113(f).
Other portions of DHS’s enabling statute indicate that when Congress wanted to allow the
delegation of leadership responsibilities to subordinates, Congress made that intention clear. E.g.,
6 U.S.C. § 350(a) (“The Under Secretary for Management shall be responsible for workforce-

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focused health and medical activities of the Department. The Under Secretary for Management
may further delegate responsibility for those activities, as appropriate.” (emphasis added));
6 U.S.C. § 112(b)(1) (subject to certain limits, the Secretary “may delegate any of the Secretary’s
functions to any officer, employee, or organizational unit of the Department”).
As these provisions illustrate, statutes directing that an officer “shall” perform particular
functions are often coupled with express authorizations to delegate those functions—providing an
exemption from the mandatory nature of the duty. This structure is common for department heads.
See, e.g., United States v. Giordano, 416 U.S. 505, 513 (1974) (“Congress characteristically
assigns newly created duties to the Attorney General rather than to the Department of Justice, thus
making essential the provision for delegation appearing in 28 U.S.C. s 510[.]”). Critically,
however, the ICE Director’s duty to establish ICE policies departs from this pattern: there is no
exception, implicit or explicit, from the mandatory nature of that duty. Plaintiffs’ position,
therefore, is not at all in tension with the practice of using the word “shall” to confer rulemaking
and other authorities on department secretaries while also allowing delegation of that authority to
subordinates. E.g., Estate of Landers v. Leavitt, 545 F.3d 98, 105 (2d Cir. 2008).
Finally, the chief rationale that has prompted courts to recognize implicit delegation
authority in other contexts does not apply here. “Congress regularly gives heads of agencies more
tasks than a single person could ever accomplish, necessarily assuming that the head of the agency
will delegate the task to a subordinate officer.” Ethicon Endo-Surgery, Inc. v. Covidien LP, 812
F.3d 1023, 1031 (Fed. Cir. 2016). Traditionally, therefore, “[s]tatutory allocations of decisional
authority were not read literally where the action by the named officer was impracticable.” Jerry
L. Mashaw & Avi Perry, Administrative Statutory Interpretation in the Antebellum Republic, 2009
Mich. St. L. Rev. 7, 27 (2009); see, e.g., Parish v. United States, 100 U.S. 500, 504 (1879) (finding

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it “impossible” for an officer “to perform in person all the duties imposed on him”). Thus, when
it is clear that an officer cannot perform a statutory duty without relying on subordinates—or that
Congress did not intend the officer to carry out the duty personally—courts have found delegation
authority to be implied.4 That rationale, however, is absent here. While it may be impractical for
the ICE Director to adjudicate every U-visa applicant’s request for a stay of removal, Defendants
have offered no reason to believe that it is impractical for the Director to “establish the policies”
for performing those adjudications—or that Congress would have thought so.
In sum, context confirms what the plain text states: the ICE Director is the person who
“shall establish the policies” for performing ICE’s adjudication of stay requests. 6 U.S.C.
§ 252(a)(3)(A); see Kingdomware Techs., 136 S. Ct. at 1977 (“The surrounding subsections . . .
confirm that Congress used the word ‘shall’ . . . as a command.”).
B. Nothing in the DHS enabling statute undermines this conclusion. Plaintiffs have
already explained why the Secretary’s general delegation authority, found in 6 U.S.C. § 112(b)(1),
does not override the assignment of specific policymaking authority to the ICE Director. See Pls.
Mem. 23-26. Precedent firmly supports that reasoning. In United States v. Giordano, for instance,
the Supreme Court “held that [a statute] did not allow the Attorney General to delegate the power
to authorize [wiretap] applications . . . even though the Attorney General was authorized by a
different statute to delegate any of her functions to ‘any other officer, employee, or agency of the

4

See, e.g., Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 122-23 (1947) (not
every function granted to a price-control administrator need “be performed personally by him or
under his personal direction,” because “he could hardly be expected, in view of the magnitude of
the task, to exercise his personal discretion in determining whether a particular investigation
should be launched”); Mango, 199 F.3d at 91 (“Clearly, Congress did not intend the Chief, a
lieutenant general, personally to maintain spoil disposal facilities or to spread sand on the
beaches.”); Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 702 (9th Cir. 1996)
(“Requiring Secretary Glickman to personally authorize every salvage timber sale would
contradict the purpose of the Rescissions Act, which is to expedite such sales.”).
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Department of Justice.’” In re United States, 10 F.3d 931, 937 (2d Cir. 1993) (quoting Giordano,
416 U.S. at 513); see also Halverson v. Slater, 129 F.3d 180, 186 (D.C. Cir. 1997) (a provision
limiting the Transportation Secretary’s delegation of a particular authority took precedence over
another provision allowing the Secretary to delegate any of his powers: “the former as the more
specific provision controls, . . . according to the traditional tools of statutory construction”).
Defendants suggest that § 112 and § 252 do not conflict, but the whole point of their
interpretation is that the Secretary, by virtue of § 112, may decide at any time that the ICE Director
shall not establish the policies for performing ICE’s functions, as § 252 requires. Plaintiffs agree
that the two provisions are not actually in conflict, but only because of an explicit carve-out in
§ 112(b)(1)—“except as otherwise provided by this chapter”—which requires the Secretary’s
delegation authority to yield to more specific contrary provisions like § 252.5
Moreover, the mere existence of a vesting-and-delegation statute cannot mean that no
functions of the relevant department are exclusive to one officer within the meaning of 5 U.S.C.
§ 3348. As explained, that would eviscerate the FVRA’s most basic purpose, which was to prevent
the use of vesting-and-delegation statutes to avoid the restrictions of vacancies legislation. “In
construing a statute,” courts “must . . . never adopt an interpretation that will defeat its own
purpose, if it will admit of any other reasonable construction.” The Emily, 22 U.S. 381, 388 (1824).
And even without reference to statutory purpose, Defendants’ reading is untenable. Section 3348
contemplates that it will sometimes apply to officers whose duties are also vested in their

5

To explain away this carve-out, Defendants claim that it merely preserves explicit
prohibitions on delegation in DHS’s enabling statute, citing 6 U.S.C. § 624(c)(2). Tellingly,
however, that provision is the only explicit prohibition that Defendants can identify in the nearly
700 sections of DHS’s enabling statute (Plaintiffs are not aware of others), making this an
implausible account of the carve-out. And regardless, Defendants’ premise is wrong: explicit
prohibitions are not needed for a duty to be reserved exclusively to one official. See infra at 16-17.
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department head: in that situation, “only the head of such Executive agency may perform any
function or duty of such office.” 5 U.S.C. § 3348(b)(2). “Significantly, this fallback provision
presupposes that the head of the department will have authority to discharge the functions and
duties of the vacant, subcabinet office.” L.M.-M., 2020 WL 985376, at *21.
Defendants also point to a separate authorization for delegations in DHS’s enabling statute.
See 6 U.S.C. § 455(c) (“Unless otherwise provided in the delegation or by law, any function
delegated under this chapter may be redelegated to any subordinate.”). This provision, though,
refers to functions that are “delegated under this chapter,” which it allows to be “redelegated.” Id.
(emphasis added). Rather than expanding the pool of delegable functions, therefore, this provision
appears to clarify that when a function is delegable under the DHS enabling statute, further
subdelegation is also presumptively allowed. See id. (contrasting “the delegation” with “law”). In
any event, this authorization to redelegate—located in a section called “Miscellaneous authorities,”
id. § 455—is no more specific than the Secretary’s vesting-and-delegation statute. And because it
includes the same type of carve-out—“[u]nless otherwise provided . . . by law,” id. § 455(c)—it
simply begs the same question: Do the provisions that address the powers of the ICE Director
“otherwise provide[]”? For the reasons explained above, they do.
C. Notwithstanding the statutory text, Defendants invoke “consistent agency practice,”
citing memoranda that have notified ICE personnel of policy changes and that were “issued by
officials other than the Director.” Def. Reply 19. Setting aside the question of how these
memoranda should affect a court’s statutory analysis, there is an obvious problem here. The fact
that a lower-level official signs and issues such a memorandum does not mean that he or she
established the new policy unilaterally, without the approval of a validly serving Director or Acting
Director. And if such a thing has become standard practice at ICE, that is all the more reason to

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begin enforcing the limits of the agency’s enabling statute and the FVRA.
D. Defendants also rely heavily on “the general presumption of delegability.” Def. Reply
20. That principle, however, comes into play only “absent evidence of contrary congressional
intent.” U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004); accord Kobach v. U.S.
Election Assistance Comm’n, 772 F.3d 1183, 1190 (10th Cir. 2014) (“Absent some indication in
an agency’s enabling statute that subdelegation is forbidden, subdelegation to subordinate
personnel within the agency is generally permitted.” (emphasis added)). It does not, therefore,
help answer the antecedent question—whether the enabling statute indicates an intent that only the
ICE Director may establish the agency’s policies for performing its functions.
What the passages just quoted do illustrate, however, is that Congress may prohibit
delegation without utilizing an express prohibition: all that is needed is “some indication,” Kobach,
772 F.3d at 1190, or “evidence,” U.S. Telecom Ass’n, 359 F.3d at 566, that this was Congress’s
intent. See Halverson, 129 F.3d at 187 (courts should not “presume a delegation of power absent
an express withholding of such power”). The question, therefore, is simply whether a statute,
“fairly read, was intended to limit the power,” even if “precise language forbidding delegation was
not employed.” Giordano, 416 U.S. at 514; see Fleming, 331 U.S. at 121-22 (finding an authority
delegable because no contrary intent could be “fairly inferred from the history and content of the
Act”). Consideration of a statute’s purpose is part of that fair reading. See In re United States, 10
F.3d at 937 (“The Giordano Court based its holding on the purpose and the legislative history of
Title III, fairly read.”); id. (applying “[t]he same approach” and finding delegation foreclosed);
Inland Empire, 88 F.3d at 702 (“Without express congressional authorization for a subdelegation,
we must look to the purpose of the statute to set its parameters.”). Also relevant is whether the
claimed power to delegate is of a “limited nature” or would permit “a subdelegation of the entirety

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of the superior’s power,” Kobach, 772 F.3d at 1191, as here. See Cudahy Packing Co. v. Holland,
315 U.S. 357, 361 (1942) (“A construction . . . which would thus permit the Administrator to
delegate all his duties, including those involving administrative judgment and discretion which the
Act has in terms given only to him, can hardly be accepted unless plainly required by its words.”).
In short, the principles Defendants invoke only undermine their position. The statutes
governing the ICE Director supply abundant evidence that Congress wanted this Senate-confirmed
Director, not someone else, to “establish the polices” for performing ICE’s functions.
E. Defendants fare no better in grappling with relevant FVRA precedent. Attempting to
distinguish L.M.-M. v. Cuccinelli, Defendants argue that it “turned on anti-circumvention
reasoning that does not apply here.” Def. Reply 22. The reasoning to which they refer, however,
had nothing to do with § 3348. It was, instead, part of the court’s rationale for concluding that the
defendant was not a valid acting officer—a matter that Defendants concede here. See L.M.-M.,
2020 WL 985376, at *15-19. After reaching that conclusion, the court in L.M.-M. then turned to
“the question of remedy,” id. at *19, and its detailed analysis of § 3348 fully applies here.
Defendants offer an equally misleading account of Schaghticoke Tribal Nation v.
Kempthorne, 587 F. Supp. 2d 389 (D. Conn. 2008). That decision, to be sure, “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.” Def. Reply 20.
But Defendants omit the basis for that holding: “the regulation contemplate[d] that the AS–IA’s
responsibilities may be delegated to other agency officials” because “it define[d] the term
Assistant Secretary to include the AS–IA ‘or that officer’s authorized representative.’”
Schaghticoke Tribal Nation, 587 F. Supp. 2d at 420-21 (quoting regulation); see Schaghticoke

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Tribal Nation v. Kempthorne, 587 F.3d 132, 135 (2d Cir. 2009) (“The . . . argument fails because
Indian acknowledgment decisions may be made either by the ‘Assistant Secretary–Indian Affairs’
or by his or her ‘authorized representative.’”). This only highlights the lack of comparable
statutory authority for the ICE Director to delegate away his policymaking responsibilities.
V.

The Albence Policy Must Be Set Aside Under the APA.
Even if the Albence Policy were not void under 5 U.S.C. § 3348(d), it must be set aside

under the APA. As Plaintiffs have explained, when a person’s tenure as an acting officer violates
the FVRA, agency actions taken by that person are “not in accordance with law” and therefore
must be “set aside.” 5 U.S.C. § 706(2)(A). See Pls. Mem. 30-32.
Defendants offer no real rebuttal. Far from identifying any flaw in Plaintiffs’ analysis, they
acknowledge that it “may make sense,” Def. Reply 28—just not in this case. The reason, they say,
is that Albence could have established the new policy as ICE’s Deputy Director, even though he
was not the agency’s Acting Director, so any violation of the FVRA was harmless error. Id. at 30.
That argument, however, simply raises the question: was Albence lawfully the Deputy
Director? And stunningly, Defendants still refuse to tell this Court how Albence obtained that
position, even though their entire defense rests on it. Defendants’ initial memorandum offered
only the vague, passive-voice statement that Albence “was selected” as Deputy in April 2019. Def.
Mem. 5. Nothing that Defendants submitted explained who appointed Albence to that position.
Plaintiffs thus examined the public record and inferred that ICE’s outgoing Acting Director,
Ronald Vitiello, may have been responsible. Plaintiffs then described why Vitiello’s own tenure
“appears to have violated the FVRA, because it satisfied none of the three exclusive options for
authorizing acting service under 5 U.S.C. § 3345.” Pls. Mem. 28-29. If Vitiello was leading the
agency unlawfully, Plaintiffs explained, his appointment of Albence as Deputy Director would

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itself “have no force or effect” under the FVRA. 5 U.S.C. § 3348(d)(1).
Despite all this, Defendants have chosen to remain mum about who appointed Albence.
But if Defendants cannot, or will not, substantiate the legitimacy of Albence’s appointment as
Deputy—the crux of their defense—then Plaintiffs have demonstrated “prejudicial error” under
the APA. 5 U.S.C. § 706; cf. SW Gen., Inc. v. NLRB, 796 F.3d 67, 80 (D.C. Cir. 2015) (“a different
General Counsel may have imposed different requirements and procedures during his tenure”).
“[T]he harmless error rule is ‘not . . . a particularly onerous requirement,’ and the Supreme Court
has cautioned courts applying the rule against ‘us[ing] mandatory presumptions and rigid rules
rather than case-specific application of judgment.’” Jicarilla Apache Nation v. U.S. Dep’t of
Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010) (quoting Shinseki v. Sanders, 556 U.S. 396, 407,
410 (2009)). Defendants have opted not to defend the legality of Albence’s appointment as
Deputy, and this Court “cannot be confident that the [U-visa policy] would have issued under an
[official] other than [Albence].” SW Gen., 796 F.3d at 80. That “uncertainty is sufficient to
conclude that [Plaintiffs] ha[ve] carried [the] burden of demonstrating that the FVRA violation is
non-harmless under the Administrative Procedure Act.” Id.
Instead of substantiating their own defense, Defendants assert, ironically, that Plaintiffs
have waived any consideration of whether Albence was validly appointed as Deputy. That
assertion borders on the frivolous. Plaintiffs’ Complaint alleges that Albence’s adoption of the
stay policy violated numerous laws because he was neither a Senate-confirmed Director of ICE
nor a validly serving Acting Director. See Am. Compl. ¶¶ 1-8, 36-46, 87-104. Nothing required
Plaintiffs to anticipate and attempt to counter any “argument,” Def. Reply 26, that Defendants
might raise as a defense to Plaintiffs’ claims. See Fed. R. Civ. P. 8(a)(2) (requiring “a short and
plain statement of the claim showing that the pleader is entitled to relief”). Plaintiffs have not

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raised any new factual claims or theories of liability. They have simply responded to a legal
argument that Defendants made in opposing their existing claims.6
Even beyond that, waiver is inappropriate when, as here, an argument “is raised at the first
pragmatically possible time and applying it at that time would not unfairly prejudice the opposing
party.” Am. Fed. Grp., Ltd. v. Rothenberg, 136 F.3d 897, 910 (2d Cir. 1998). Albence approved
the new ICE policy under his purported authority as “Acting Director,” Dkt. No. 34-1, at 7, and
when he did so, a different person was serving as the agency’s Deputy Director in an acting
capacity, see Am. Compl. ¶ 45. The first time that Albence invoked his Deputy Director status as
authority for the new policy was when Defendants filed their motion for summary judgment.
Plaintiffs responded at the next available opportunity. Defendants had four weeks to respond, were
granted an extension with Plaintiffs’ consent, see Dkt. No. 46, and ultimately used only 30 of the
40 pages available to them for their reply brief, see Dkt. No. 37, at 2. If the legality of Albence’s
appointment has gone “without proper briefing,” Def. Reply 27, the fault lies with Defendants.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment should be granted.

6

Even more specious is the assertion that Plaintiffs waived this issue at the summary
judgment stage by “failing to argue that Vitiello’s service was unauthorized by Section 3345(a)(1),
and instead claiming only that it ‘appears unauthorized.’” Def. Reply 26. Plaintiffs’ cautious
phrasing reflected the fact that Defendants had offered no details about Vitiello’s appointment,
and indeed had not even confirmed that Vitiello was actually the person who appointed Albence.
Nevertheless, an entire section of Plaintiffs’ memorandum is titled “Defendants Have Not
Established that Albence Was Lawfully Appointed as Deputy Director,” Pls. Mem. 27, and that
section lays out the case against Vitiello’s appointment, citing statutes and precedent. Describing
this as the “intentional relinquishment of a known right,” Hamilton v. Atlas Turner, Inc., 197 F.3d
58, 61 (2d Cir. 1999), does not pass the laugh test.
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Dated: July 17, 2020

Respectfully submitted,
/s/ Brianne J. Gorod
Brianne J. Gorod

Brittany Williams (phv10516)
THE PROTECT DEMOCRACY PROJECT
1900 Market Street, 8th Floor
Philadelphia, PA 19103
(202) 236-7396
brittany.williams@protectdemocracy.org

Elizabeth B. Wydra (phv10541)
Brianne J. Gorod (phv10524)
Brian R. Frazelle (phv10535)
CONSTITUTIONAL ACCOUNTABILITY CENTER
1200 18th Street NW, Suite 501
Washington, DC 20036
(202) 296-6889
elizabeth@theusconstitution.org
brianne@theusconstitution.org
brian@theusconstitution.org

Benjamin L. Berwick (phv04462)
THE PROTECT DEMOCRACY PROJECT
15 Main Street, Suite 312
Watertown, MA 02472
(202) 856-9191
ben.berwick@protectdemocracy.org

Marisol Orihuela (ct30543)
JEROME N. FRANK LEGAL SERVICES
ORGANIZATION
P.O. Box 209090
New Haven, CT 06520
(202) 432-4800
marisol.orihuela@yale.edu

Rachel E. Goodman (phv10513)
THE PROTECT DEMOCRACY PROJECT
115 Broadway, 5th Floor
New York, NY 10006
(202) 997-0599
rachel.goodman@protectdemocracy.org

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CERTIFICATE OF SERVICE
I hereby certify that on July 17, 2020, the foregoing document was filed with the Clerk of
the Court, using the CM/ECF system, causing it to be served on all counsel of record.
Dated: July 17, 2020
/s/ Brianne J. Gorod
Brianne J. Gorod