Arizona, State of v. Mayorkas

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 State of Arizona, No. CV-21-00617-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Alejandro Mayorkas, et al.,

13 Defendants. 14 15 INTRODUCTION 16 In this action, the State of Arizona has sued an array of federal agencies and officials 17 for implementing what the State characterizes as the “Population Augmentation Program,” 18 which is a “collection of policies of Defendants that have the direct effect of causing growth 19 in the population of the United States generally, and Arizona specifically, through 20 immigration.” (Doc. 13 ¶¶ 1-12, 33, 61-65.) During the early stages of the case, the State 21 moved for a preliminary injunction on a subset of its claims. (Doc. 17.) In a February 22 2022 order, the Court denied the State’s motion. (Doc. 47.) 23 As the briefing process on the State’s motion was unfolding, Defendants moved to 24 dismiss the State’s complaint under Rules 12(b)(1) and 12(b)(6). (Doc. 27.) That motion 25 is now fully briefed. (Docs. 33, 36.) Additionally, following the issuance of the order 26 denying preliminary injunctive relief, the State filed a motion to conduct jurisdictional 27 discovery. (Doc. 48.) That motion, too, is now fully briefed. (Docs. 51, 52.) 28 For the following reasons, the State’s discovery motion is denied, Defendants’ 1 motion to dismiss is granted in part, and the parties are ordered to file supplemental briefing 2 regarding Counts Three and Six of the State’s complaint, which raise challenges to 3 Defendants’ termination of the Migrant Protection Protocols (“MPP”). 4 BACKGROUND 5 The details of this case are summarized at length in the February 2022 order denying 6 the State’s motion for a preliminary injunction. (Doc. 47.) 7 As relevant here, on July 12, 2021, the State filed its operative pleading, the First 8 Amended Complaint (“FAC”). (Doc. 13.) The named defendants are the Department of 9 Homeland Security (“DHS”), the Department of Defense (“DoD”), three DHS officials 10 sued in their official capacities, and one DoD official sued in his official capacity. (Id. 11 ¶¶ 20-25.) 12 Broadly speaking, the FAC seeks to challenge the “Population Augmentation 13 Program,” which is alleged to have five specific components that “all work in tandem”: (1) 14 President Biden’s January 2021 “proclamation” to stop building the border wall, which has 15 since been implemented by DHS and DoD; (2) DHS’s formal rescission in June 2021 of 16 the MPP, a program created in 2018 to “ensure[] that individuals who lacked a legal basis 17 to be in the United States, and who had passed through Mexico en route to the United 18 States, had to remain in Mexico for the duration of their immigration proceedings”; (3) 19 DHS’s discontinuation in April 2021 of the practice of issuing fines to aliens who fail to 20 comply with orders to leave the country; (4) DHS’s decision in May 2021 to exempt 250 21 migrants per day from a pandemic-related public health order barring the entry of migrants 22 without valid travel documents; and (5) guidance issued by DHS in February 2021 that has 23 led to “detaining fewer migrants than ever, including migrants with serious felony 24 convictions.” (Id. ¶¶ 61-65.) 25 On July 14, 2021, the State filed a motion for a preliminary injunction. (Doc. 17.) 26 The State sought injunctive relief only on the first three counts of the FAC, all of which 27 are premised on the notion that Defendants were required by the National Environmental 28 Policy Act (“NEPA”) to prepare an environmental impact statement (“EIS”) before 1 pursuing the policies and programs in question. (Id.) 2 On September 3, 2021, Defendants filed a response to the State’s motion for a 3 preliminary injunction. (Doc. 24.) 4 On October 1, 2021, Defendants filed the pending motion to dismiss the FAC. (Doc. 5 27.) 6 On October 18, 2021, the State filed a corrected reply in support of its motion for a 7 preliminary injunction. (Doc. 29.) Although the preliminary injunction request became 8 fully briefed at this point, the Court did not immediately set a hearing because the motion- 9 to-dismiss briefing continued to develop and elaborate upon some of the arguments raised 10 in the preliminary-injunction briefing. 11 On November 18, 2021, the State filed a response to the motion to dismiss. (Doc. 12 33.) 13 On December 10, 2021, Defendants filed a reply in support of the motion to dismiss. 14 (Doc. 36.) 15 Between that date and January 27, 2022, the parties filed an array of notices 16 concerning factual and legal developments. (Docs. 37, 38, 42, 44.) 17 On February 1, 2022, the Court heard oral argument on the State’s motion for a 18 preliminary injunction. (Doc. 46.) 19 On February 7, 2022, the Court issued an order denying the State’s motion. (Doc. 20 47.) As discussed in more detail below, the Court began by noting that the legal landscape 21 underlying the State’s NEPA claims had changed as the briefing process was unfolding by 22 virtue of the Ninth Circuit’s July 2021 decision in Whitewater Draw Natural Resource 23 Conservation District v. Mayorkas, 5 F.4th 997 (9th Cir. 2021), which rejected a NEPA- 24 based challenge to various programs that were alleged to encourage illegal immigration, 25 and the Fifth Circuit’s December 2021 decision in Texas v. Biden, 20 F.4th 928 (5th Cir. 26 2021), which overturned DHS’s recission of the MPP and ordered DHS “to enforce and 27 implement MPP in good faith.” With that background in mind, the Court concluded that 28 the State’s NEPA-based challenges to the entirety of the Population Augmentation 1 Program and to the cessation of border wall construction (Counts One and Two) were 2 unlikely to succeed and that the State was not entitled to injunctive relief with respect to 3 its NEPA-based challenge to the recission of the MPP (Count Three) because any relief the 4 Court might grant would be duplicative of the permanent injunction already upheld by the 5 Fifth Circuit. 6 On February 17, 2022, the State filed the pending motion for jurisdictional 7 discovery. (Doc. 48.) 8 On March 17, 2022, Defendants filed an opposition to the State’s motion for 9 jurisdictional discovery. (Doc. 51.) 10 On March 24, 2022, the State filed a reply in support of its request for jurisdictional 11 discovery. (Doc. 52.) 12 On April 8, 2022, the State filed a notice of appeal as to the February 2022 order 13 denying its motion for a preliminary injunction. (Doc. 53.) 14 On April 12, 2022, the Sixth Circuit decided Arizona v. Biden, __ F.4th __, 2022 15 WL 1090176 (6th Cir. 2022). As discussed in more detail below, that decision represents 16 yet another potential change to the relevant legal landscape. 17 On April 15, 2022, the Court issued a tentative ruling addressing Defendants’ 18 motion to dismiss and the State’s motion for jurisdictional discovery. (Doc. 56.) 19 On April 24, 2022, the State filed a notice regarding additional evidence. (Doc. 60.) 20 On April 25, 2022, the State filed a notice of supplemental authority concerning a 21 recent decision by the U.S. District Court for the Eastern District of Louisiana to grant a 22 temporary restraining order in favor of the State, and other state plaintiffs, in another 23 lawsuit challenging the current administration’s immigration policies. (Doc. 62.) 24 On April 26, 2022, the Court heard oral argument. (Doc. 63.) 25 … 26 … 27 … 28 … 1 DISCUSSION 2 I. Legal Standards 3 A. Dismissal Under Rule 12(b)(1) 4 Courts “have an independent obligation to determine whether subject-matter 5 jurisdiction exists.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). See also Fed. R. 6 Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter 7 jurisdiction, the court must dismiss the action.”). 8 “Under Rule 12(b)(1), a defendant may challenge the plaintiff’s jurisdictional 9 allegations in one of two ways. A ‘facial’ attack accepts the truth of the plaintiff’s 10 allegations but asserts that they are insufficient on their face to invoke federal 11 jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citation omitted). 12 “A ‘factual’ attack, by contrast, contests the truth of the plaintiff’s factual allegations, 13 usually by introducing evidence outside the pleadings.” Id. 14 B. Dismissal Under Rule 12(b)(6) 15 “[T]o survive a motion to dismiss under Rule 12(b)(6), a party must allege 16 ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 17 face.’” In re Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting 18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the 19 plaintiff pleads factual content that allows the court to draw the reasonable inference that 20 the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). 21 “[A]ll well-pleaded allegations of material fact in the complaint are accepted as true and 22 are construed in the light most favorable to the non-moving party.” Id. at 1444-45 (citation 23 omitted). However, the Court need not accept legal conclusions couched as factual 24 allegations. Iqbal, 556 U.S. at 679-680. Moreover, “[t]hreadbare recitals of the elements 25 of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 679. 26 The Court also may dismiss due to “a lack of a cognizable theory.” Mollett v. Netflix, Inc., 27 795 F.3d 1062, 1065 (9th Cir. 2015) (citation omitted). 28 … 1 II. Count One: Population Augmentation Program—NEPA Challenge 2 A. Parties’ Arguments 3 In Count One of the FAC, the State argues that Defendants violated NEPA by failing 4 to prepare a “programmatic EIS” before adopting the Population Augmentation Program. 5 (Doc. 13 ¶¶ 148-53.) 6 Defendants argue that the State lacks standing for each of its NEPA claims—that is, 7 Counts One, Two, and Three—for the same reasons set forth in Defendants’ response to 8 the preliminary injunction motion (Doc. 24): namely, “(1) Arizona’s generic and 9 speculative affidavits do not show an imminent, concrete injury to the State’s interests and 10 (2) Arizona cannot show that its alleged harms are fairly traceable to the challenged 11 decisions or redressable by a Court order.” (Doc. 27 at 3-4.) Additionally, as to Count 12 One specifically, Defendants argue the claim fails under Rule 12(b)(6) because it “is an 13 impermissible programmatic challenged barred under Supreme Court and Ninth Circuit 14 precedent, and none of the components of the so-called ‘program’ are reviewable.” (Id. at 15 6.) 16 The State responds by reasserting the arguments made in its preliminary injunction 17 briefs (Docs. 15, 29): namely, that it has standing to assert all of its NEPA claims because 18 (1) it provided “reams of evidence for a host of impacts” that directly result from migration 19 caused by border wall gaps, the MPP termination, and Defendants’ “other policies”; and 20 (2) Defendants’ standing arguments are inconsistent with Massachusetts v. EPA, 549 U.S. 21 497 (2007), which entitled states to “special solicitude” in the standing analysis. (Doc. 33 22 at 3-5.) The State also contends that the standing arguments Defendants raised in the 23 preliminary injunction response “are even weaker in this [motion to dismiss] context, 24 where the State’s allegations must be accepted as true.” (Id. at 5-6.) Finally, as for Count 25 One specifically, the State asserts that “Defendants have previously recognized that their 26 interlocking and related actions involving the southern border require programmatic 27 treatment under NEPA . . . . Accepted as true, this more than shows that some sort of 28 programmatic treatment was appropriate here.” (Id. at 6-7.) 1 In reply, Defendants contend that the State fails to demonstrate standing for Count 2 One because (1) the State “alleges no facts showing Defendants’ actions have caused 3 migration”; (2) “the causation requirement remains implicated where the concern is that an 4 injury caused by a third party is too tenuously connected to the acts of the defendant”; and 5 (3) Massachusetts reduced states’ burdens on imminence and redressability but did not 6 create a lower standard for traceability. (Doc. 36 at 3-5.) Additionally, Defendants contend 7 that any programmatic claim is foreclosed by existing precedent. (Id. at 1.) 8 B. Analysis 9 “[S]tanding is an essential and unchanging part of the case-or-controversy 10 requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 11 “[T]he irreducible constitutional minimum of standing contains three elements. First, the 12 plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest 13 which is (a) concrete and particularized and (b) actual or imminent, not conjectural or 14 hypothetical. Second, there must be a causal connection between the injury and the 15 conduct complained of—the injury has to be fairly traceable to the challenged action of the 16 defendant, and not the result of the independent action of some third party not before the 17 court. Third, it must be likely, as opposed to merely speculative, that the injury will be 18 redressed by a favorable decision.” Id. at 560-61 (cleaned up). 19 The Court declines to dismiss Count One under Rule 12(b)(1). In Texas v. Biden, 20 the Fifth Circuit held that the district court did not clearly err in “finding . . . that MPP’s 21 termination has increased the number of aliens released on parole into the United States, 22 including Texas and Missouri.” 20 F.4th at 966. As discussed in the February 2022 order, 23 the Court agrees with this aspect of Texas v. Biden’s standing analysis. (Doc. 47 at 21-22 24 [“In Texas v. Biden, the challenge was to DHS’s recission of the MPP. Due to the 25 mechanics of how that program worked, its presence or absence was the but-for 26 explanation for why certain aliens remained in the United States or were returned to 27 Mexico. The State makes this point in the portions of its briefs addressing whether it has 28 standing with respect to Count Three of the FAC, which also raises a challenge to the 1 termination of the MPP”].) And because the MPP recission is one component of the 2 collection of programs challenged in Count One, the Court is satisfied that the State has 3 standing to pursue Count One. 4 Nevertheless, Count One is subject to dismissal under Rule 12(b)(6). On this point, 5 the Court adopts its rationale in the February 2022 order for denying the State’s request for 6 preliminary injunctive relief as to Count One. (Doc. 47 at 6-13.) As discussed there, the 7 Ninth Circuit has held that “a plaintiff asserting an APA claim ‘must direct its attack against 8 some particular agency action that causes it harm’ and, as a result, the APA ‘precludes 9 broad programmatic attacks, whether couched as a challenge to an agency’s action or 10 failure to act.’” (Id. at 8, quoting Whitewater Draw, 5 F.4th at 1010.) Here, as in 11 Whitewater Draw, Count One qualifies as an “impermissible ‘broad programmatic attack’ 12 because the challenged ‘programs’ merely refer to continuing operations of DHS in 13 regulating various types of immigration.’” (Id.) Additionally, the State did not, in either 14 its preliminary injunction briefing or in its response to the motion to dismiss, “identif[y] 15 any case suggesting that a failure-to-issue-a-programmatic-EIS claim will lie in this 16 circumstance.” (Id. at 10.) Although the analysis in the preliminary injunction order was 17 tied to the likelihood-of-success standard, the Court now takes one step further and 18 concludes that Count One fails to state a claim upon which relief may be granted. 19 III. Count Two: Border Wall—NEPA Challenge 20 A. Parties’ Arguments 21 In Count Two of the FAC, the State raises a NEPA challenge to the termination of 22 border wall construction. (Doc. 13 ¶¶ 154-56.) The State alleges that “the termination of 23 border wall construction has left huge holes in the border fencing, including substantial 24 gaps of over 100 miles along the Arizona-Mexico border,” which has in turn allowed 25 migrants to “cross[] the border in Arizona in greater numbers than ever before,” “signal[ed] 26 the relative openness of the United States-Mexico border,” and “encourage[d] migration.” 27 (Id. ¶¶ 78, 85, 89.) 28 In addition to arguing that Count Two must be dismissed based on the standing 1 arguments described above—i.e., the State cannot show that Defendants’ actions caused 2 migration or harm to wildlife—Defendants seek dismissal under Rule 12(b)(6) on the 3 ground that Count Two is premised on the same “enticement theory” that was rejected by 4 the Ninth Circuit in Whitewater Draw. (Doc. 27 at 1, 4; see also Doc. 24.) Defendants 5 also contend that Count Two “fails because: (1) NEPA was waived under the Illegal 6 Immigration Reform and Immigrant Responsibility Act (IIRIRA); (2) IIRIRA’s 7 jurisdictional bar forecloses judicial review of APA claims challenging the waivers; (3) the 8 decision to not build more border wall does not alter the environmental status quo; and (4) 9 Arizona may not invoke APA review to challenge the policy directives of the President.” 10 (Doc. 27 at 5-6.) 11 In response, the State argues that it can establish causation, and therefore standing, 12 because it has provided considerable evidence that migrants are crossing in unprecedented 13 numbers in the areas where Defendants have terminated border wall construction. (Doc. 14 33 at 2-3, 6; see also Docs. 17, 29.) Additionally, the State argues that, as for its injury-to- 15 wildlife theory, “Defendants do not seriously contend that their actions will not affect 16 Arizona wildlife, they only assert that such impacts will be positive. It is not clear on what 17 basis Defendants could make that assertion, since they have not prepared an EIS or any 18 other environmental analysis. But in any case, it is irrelevant at this stage of the litigation, 19 where Arizona’s allegations must be accepted as true.” (Doc. 33 at 4.) The State also 20 contends that its “NEPA challenge to the termination of border wall construction should 21 go forward notwithstanding the Secretary’s waiver of NEPA compliance for wall 22 construction under IIRIRA. DHS’s authority to waive NEPA extends only to ‘ensure 23 expeditious construction of barriers.’ Defendants, however, seek to use the waivers for the 24 precise opposite purpose.” (Id. at 6.) 25 In reply, Defendants contend that even if the State had standing, NEPA “does not 26 apply to a decision to terminate border wall projects, or to enforcement decisions,” as 27 explained in its response to the preliminary injunction motion. (Doc. 36 at 1; see also Doc. 28 24 at 22-31.) 1 B. Analysis 2 The Court concludes that Count Two is subject to dismissal under Rule 12(b)(1) due 3 to lack of causation (and, hence, subject-matter jurisdiction). Alternatively, even if 4 jurisdiction existed, Count Two would be subject to dismissal under Rule 12(b)(6). 5 1. Standing 6 The Court concluded in the February 2022 order that the State was not entitled to 7 preliminary injunctive relief on Count Two in part because the State had not established a 8 likelihood of success as to its standing to pursue that claim. (Doc. 47 at 14-26.) Although 9 it was unnecessary at that time to decide whether the State actually lacked standing to 10 pursue Count Two, the Court now concludes that it does, for the same reasons discussed in 11 the February 2022 order (which are incorporated by reference here). 12 The Sixth Circuit’s recent decision in Arizona v. Biden underscores this conclusion. 13 There, as here, Arizona sought to challenge aspects of the current administration’s 14 immigration policy. Specifically, after the secretary of DHS “issued a memorandum to his 15 deputies outlining the Department’s immigration enforcement priorities and policies,” a 16 coalition of states led by Arizona “filed [a] lawsuit in the Southern District of Ohio to 17 enjoin its implementation” and “block[] the Department from relying on the priorities and 18 policies in the memorandum in making certain arrest, detention, and removal decisions.” 19 2022 WL 1090176 at *1. The theory underlying this challenge was that “the Guidance 20 violates the Administrative Procedure Act . . . [because] the Guidance fails to honor 8 21 U.S.C. § 1226(c), which requires the Department to take custody of certain criminal 22 noncitizens . . . when they are released from state or federal prison, and 8 U.S.C. § 1231(a), 23 which requires the Department to remove noncitizens within 90 days of receiving final 24 orders of removal. Failure to respect the requirements of the two statutes, the three States 25 claim[ed], has led to fewer detainers and removals, meaning individuals are being released 26 from state custody into their communities and imposing costs and burdens on them: 27 additional costs to pay for medical and educational services and additional law- 28 1 enforcement burdens given the risks of recidivism.” Id. at *2.1 “After rejecting a host of 2 justiciability challenges to the lawsuit and after concluding the Guidance likely violated 3 the Administrative Procedure Act, the district court issued a ‘nationwide preliminary 4 injunction.’” Id. However, in Arizona v. Biden, the Sixth Circuit granted the defendants’ 5 emergency motion for a stay pending appeal. Writing for the court, Chief Judge Sutton 6 explained that Arizona and the other states likely lacked standing to pursue their challenge, 7 in part because of “causation and redressability problems” stemming from the fact that it 8 “is speculative whether and how the Guidance’s prioritization of the apprehension and 9 removal of noncitizens in the three States will injure each of them” and the related fact that 10 the states’ alleged “injury turns on choices made by others.” Id. at *2-3. As part of its 11 standing analysis, the Sixth Circuit also rejected Arizona’s reliance on the “special 12 solicitude” doctrine of Massachusetts v. EPA, explaining that “even if a State can be 13 distinguished from a private entity in this way and even if we put to the side that the key 14 sovereign with authority and ‘solicitude’ with respect to immigration is the National 15 Government, not the States, that does not liberate the States from establishing causation 16 and redressability.” Id. at *4. The Sixth Circuit concluded that “[e]ven under 17 Massachusetts, there are many dubious justiciability questions with respect to the States’ 18 theory of standing—enough for us to be skeptical at this stage of the case that they can 19 bring the action.” Id. 20 The Court acknowledges that the motion now being resolved, a motion to dismiss, 21 arises in a different procedural posture (and implicates different burdens of proof) than the 22 requests for injunctive relief addressed in the February 2022 order and in Arizona v. Biden. 23 Nevertheless, the State goes too far in its suggestion that, because Defendants are the 24 movants here, “Arizona’s allegations must be accepted as true” at “this stage of the 25 1 The challenged policy in Arizona v. Biden appears to overlap, at least in part, with 26 one of the components of the Population Augmentation Program being challenged in this action. (Doc. 13 ¶¶ 65, 151 [alleging that “another policy, which is also part of the 27 Population Augmentation Program and designed to encourage migration, . . . [is] detaining fewer migrants than ever” and that one “component[] of the Population Augmentation 28 Program . . . [is] drastically decreasing deportation of individuals with final orders of removal”].) 1 litigation.” (Doc. 33 at 4.) Defendants are mounting a factual attack on the Court’s subject- 2 matter jurisdiction, and when “[f]aced with a factual attack on subject matter jurisdiction, 3 the trial court may proceed as it never could under Rule 12(b)(6) or Fed.R.Civ.P.56. No 4 presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed 5 material facts will not preclude the trial court from evaluating for itself the merits of 6 jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction 7 does in fact exist.” Thornhill Pub. Co., Inc. v. General Tel. & Electronics Corp., 594 F.2d 8 730, 733 (9th Cir. 1979).2 Thus, the Court need not uncritically accept the FAC’s 9 allegations of injury and causation. The State provided no additional evidence in its 10 response to the motion to dismiss to persuade the Court that aliens are entering the country 11 illegally because of certain gaps in the border wall (which would remain gap-filled 12 regardless of the termination decision) or that wildlife is being harmed by the decision to 13 stop construction. 14 Nor is there any merit to the State’s contention, raised during oral argument, that 15 the Ninth Circuit’s decisions in California v. Trump, 963 F.3d 926 (9th Cir. 2020), and City 16 & County of San Francisco v. Trump, 944 F.3d 773 (9th Cir. 2019), support its claim of 17 standing. California recognizes that, under Massachusetts v. EPA, “States are ‘entitled to 18 special solicitude in our standing analysis.’” 963 F.3d at 936. But the question here isn’t 19 whether Arizona is, in general, entitled to special solicitude in the standing analysis. 20 Rather, and as discussed in detail in the February 2022 order, the issue is that “it is unclear 21 2 An exception to this rule arises “where the jurisdictional issue and substantive issues 22 are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits,” in which case “the jurisdictional determination should await a 23 determination of the relevant facts on either a motion going to the merits or at trial.” Mecinas v. Hobbs, __ F.4th __, 2022 WL 1052620, *3 (9th Cir. 2022) (citations and 24 internal quotation marks omitted). This exception is inapplicable here because the jurisdictional and substantive issues are not intertwined—the State concedes that the merits 25 of its NEPA claim in Count Two have nothing to do with whether there is, in fact, a causal relationship between the termination of border wall construction and State’s alleged harms. 26 (Doc. 17 at 4 [“As a purely procedural statute, ‘NEPA itself does not mandate particular results[.]’ NEPA therefore does not itself preclude any of the particular challenged actions 27 here. But NEPA absolutely does prohibit Defendants from taking them without first studying the environmental impacts adequately under NEPA’s auspices. Ultimately, 28 ‘NEPA merely prohibits uninformed—rather than unwise—agency action.’ Because Defendants have taken many such uniformed decisions here, relief is warranted.”].) 1 whether the special solicitude doctrine goes to the causation prong of the standing inquiry.” 2 (Doc. 47 at 22.) California does not support the State’s position on this point because 3 California and other recent Ninth Circuit decisions “do not suggest that states have special 4 solicitude when it comes to demonstrating causation.” (Id. at 23.) Additionally, “even 5 assuming the special solicitude doctrine goes to causation, it is unclear how it alters the 6 inquiry. Whatever its contours, the special solicitude doctrine cannot be some sort of magic 7 wand that a state can wave over an otherwise inadequate record to automatically cure 8 standing defects that would be fatal to a private litigant.” (Id. at 23-24.) Nothing in 9 California is inconsistent with these observations. And as noted above, the Sixth Circuit 10 recently reached similar conclusions in Arizona v. Biden. 2022 WL 1090176 at *4 (“[E]ven 11 if a State can be distinguished from a private entity [based on special solicitude] . . . , that 12 does not liberate the States from establishing causation and redressability.”) (citations 13 omitted). 14 Meanwhile, in City & County of San Francisco, a group of states sought to challenge 15 a DHS rule that altered how to determine whether an alien was likely to become a “public 16 charge.” 944 F.3d at 780, 783-84. The states argued they had standing to pursue this 17 challenge for two reasons: (1) because the new rule would “encourage aliens to disenroll 18 from public benefits,” which in turn “would result in a reduction in Medicaid 19 reimbursement payments to the States of about $1.01 billion” due to the lower number of 20 Medicaid enrollees; and (2) because the States would incur “new and ongoing operational 21 costs resulting from the Final Rule.” Id. at 786-87. On appeal, DHS argued that the states’ 22 “predictions of future financial harm” were insufficient to confer standing because the 23 predictions were “based on an attenuated chain of possibilities” and “premised on the 24 actions of third parties.” Id. at 787 (citations and internal quotation marks omitted). The 25 Ninth Circuit disagreed, holding that because DHS itself had “predicted a 2.5 percent 26 disenrollment rate when proposing the rule” and “acknowledged increased administrative 27 costs that would result from the Final Rule,” it was “disingenuous for DHS to claim that 28 [the costs] are too attenuated at this point when it acknowledged these costs in its own 1 rulemaking process.” Id. Additionally, the Ninth Circuit noted that the states had 2 “present[ed] evidence that the predicted disenrollment and rising administrative costs are 3 currently happening.” Id. at 788. 4 As City & County of San Francisco makes clear, it is possible for a party seeking to 5 challenge a government policy to establish standing by showing that the challenged policy 6 will have a predictable effect on the decisions of third parties and that those decisions will, 7 in turn, cause the challenger to suffer harm. But this principle is nothing new—the Court 8 applied it in the February 2022 order. As noted there, “when a plaintiff’s asserted injury 9 arises from the government’s allegedly unlawful regulation (or lack of regulation) of 10 someone else, . . . causation and redressability ordinarily hinge on the response of the 11 regulated (or regulable) third party to the government action or inaction—and perhaps on 12 the response of others as well. . . . [W]hen the plaintiff is not himself the object of the 13 government action or inaction he challenges, standing is not precluded, but it is ordinarily 14 substantially more difficult to establish.” (Doc. 47 at 18-19, quoting Lujan v. Defenders of 15 Wildlife, 504 U.S. 555, 562 (1992).) As further noted in the February 2022 order, the 16 applicable cases in this area “do[] not stand for the proposition that a district court must 17 always find that government policies have a predictable effect on aliens’ behavior. The 18 facts matter.” (Id. at 19 n.6.) 19 Due to the significant factual differences between this case and City & County of 20 San Francisco, it does not support the State’s theory of predictable effects. The question 21 there was whether the challenged rule would have a predictable effect on the behavior of 22 aliens already present in the United States (i.e., whether it would cause them to disenroll 23 from Medicaid), and the government admitted during the rulemaking process that the rule 24 would have such an effect, even calculating the predicted effect down to the tenth of a 25 percentage point. Here, in contrast, there is no such concession. Additionally, as the Ninth 26 Circuit recognized in Whitewater Draw, the analysis is qualitatively different when it 27 comes to predicting the effect of a single policy change on “an alien’s decision to risk life 28 and limb to come to the United States” because that sort of decision is uniquely influenced 1 by “myriad . . . economic, social, and political realities.” 5 F.4th at 1015 (cleaned up). 2 2. Merits 3 Alternatively, even if the State had standing to pursue Count Two, that claim would 4 be subject to dismissal under Rule 12(b)(6) because NEPA does not apply to federal actions 5 that maintain the environmental status quo. On this point, the Court again incorporates the 6 relevant analysis in the February 2022 order (Doc. 47 at 26-31) after clarifying that, 7 although that analysis only addressed whether the State had shown of likelihood of success 8 on the merits on Count Two, the same reasoning compels the conclusion that the State has 9 failed to state a valid claim or articulate a valid legal theory in Count Two. 10 IV. Count Three: MPP—NEPA Challenge 11 A. Parties’ Arguments 12 In Count Three of the FAC, the State alleges that Defendants’ “cancellation of the 13 MPP has significant environmental effects which DHS has utterly failed to consider, in 14 defiance of NEPA.” (Doc. 13 ¶¶ 157-59.) 15 Defendants argue that Count Three should be dismissed for lack of standing and for 16 failure to state a claim because “(1) returning certain noncitizens to contiguous countries 17 pending their removal proceedings is committed to DHS’s discretion by law; (2) the 18 decision to terminate MPP is not a reviewable final agency action; and (3) the decision to 19 terminate MPP is an enforcement decision, and so not a ‘major federal action’ requiring 20 NEPA analysis.” (Doc. 27 at 6.) 21 The State responds that Defendants’ arguments “are essentially the same arguments 22 DHS made to the Fifth Circuit in Texas v. Biden.” (Doc. 33 at 6.) Specifically, the State 23 contends that “Defendants’ attempt to shield their blanket construction halt . . . fails, 24 because the . . . presumption of unreviewability applies to challenges to individual 25 decisions not to initiate enforcement actions, not sweeping policies of non-enforcement.” 26 (Id.) 27 In reply, Defendants simply reference their response to the preliminary injunction 28 motion. (Doc. 36 at 5, citing Doc. 24 at 31-39.) 1 B. Analysis 2 In the February 2022 order, the Court declined to grant preliminary injunctive relief 3 on Count Three for reasons unrelated to the merits of the claim (or the State’s standing to 4 pursue the claim). (Doc. 47 at 31-32.) Instead, the Court concluded that the State would 5 not suffer irreparable harm in the absence of preliminary injunctive relief in light of the 6 Fifth Circuit’s decision in Texas v. Biden to uphold the issuance of a permanent injunction 7 that “vacated the [MPP] Termination Decision, ‘permanently enjoined and restrained 8 [DHS] from implementing or enforcing’ it, and ordered DHS ‘to enforce and implement 9 MPP in good faith until such a time as it has been lawfully rescinded in compliance with 10 the APA and until such a time as the federal government has sufficient detention capacity 11 to detain all aliens subject to mandatory detention under Section [1225] without releasing 12 any aliens because of a lack of detention resources.’” (Id.) The Court noted that, under 13 Ninth Circuit law, “it is unnecessary to issue what would essentially be a piggyback 14 injunction where a different court has already enjoined the same conduct.” (Id. at 3.) 15 The Fifth Circuit’s decision in Texas v. Biden is not the only development related to 16 the MPP that has occurred since the State filed its operative complaint. As noted, the 17 State’s NEPA-based challenge in this action is based on Defendants’ failure to prepare an 18 EIS before announcing the recission of the MPP in June 2021. (Doc. 13 ¶ 102 [“[O]n June 19 1, 2021, the Administration formally ended the MPP with a cursory seven-page 20 memorandum.”].) However, as discussed at length in Texas v. Biden, “DHS issued two 21 more memoranda [in October 2021] to explain the Termination Decision,” and “[t]hese 22 much longer documents purported to ‘re-terminate’ MPP.” 20 F.4th at 941-42. DHS 23 argued in Texas v. Biden that the issuance of these memoranda mooted any APA challenge 24 to the June 2021 MPP termination decision, but the Fifth Circuit rejected that argument for 25 various reasons. Id. at 956-66. 26 Notably, on February 18, 2022—about a week after the issuance of the order 27 denying the State’s motion for preliminary injunction in this action—the Supreme Court 28 granted certiorari in Texas v. Biden. Biden v. Texas, 142 S. Ct. 1098 (2022). The issues 1 on which the Court granted certiorari are (1) “[w]hether 8 U.S.C. 1225 requires DHS to 2 continue implementing MPP”; and (2) “[w]hether the court of appeals erred by concluding 3 that the Secretary’s new decision terminating MPP had no legal effect.” Petition for a Writ 4 of Certiorari, 2021 WL 6206109, *1. The Supreme Court ordered expedited briefing and 5 held oral argument on April 26, 2022. 6 Given these developments, it is unclear to the Court whether Count Three, which 7 involves a NEPA-based challenge to the June 2021 MPP termination decision, is now 8 moot. Not only did Defendants purport to re-terminate the MPP in October 2021, via a 9 decisional process the State has not challenged in the FAC, but Defendants have now 10 vacated the June 2021 MPP termination decision and reinstated the MPP (per the 11 permanent injunction in Texas v. Biden) and the Supreme Court has granted expedited 12 review in part to consider whether the Fifth Circuit erred in failing to recognize the 13 mootness-inducing effect of the October 2021 memoranda. If any of these developments 14 have mooted the State’s claim in Count Three, the Court would lack subject-matter 15 jurisdiction over that claim. Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (“[W]e 16 have an independent duty to consider sua sponte whether a case is moot . . . .”); White v. 17 Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (“Because standing and mootness both pertain to 18 a federal court’s subject-matter jurisdiction under Article III, they are properly raised in a 19 motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), not Rule 12(b)(6).”). 20 And if the Court lacks subject-matter jurisdiction over Count Three for this reason, there 21 would be no need to resolve Defendants’ other dismissal arguments directed toward Count 22 Three. 23 Accordingly, expressing no prejudgment on the issue, the parties are ordered to file 24 supplemental briefing on whether Count Three is now moot. 25 … 26 … 27 … 28 … 1 V. Count Five: Border Wall—Arbitrary And Capricious Challenge 2 A. Parties’ Arguments 3 In Count Five of the FAC,3 the State alleges that “Defendants’ Border Wall 4 Construction Termination was not the product of reasoned decision-making,” leaving 5 “gaps in border barriers that are entirely unstudied and arbitrary,” and is accordingly 6 arbitrary and capricious in violation of the APA. (Doc. 13 ¶¶ 166-71.) 7 Defendants move to dismiss Count Five for lack of standing and for failure to state 8 a claim. (Doc. 27 at 1, 6-8.) As for the latter, Defendants contend that any arbitrary-and- 9 capricious claim necessarily fails because the State “has not identified any statutory criteria 10 against which this Court could review the challenged decisions. And, indeed, none exist,” 11 given Congress’s decision to vest the Secretary of DHS with discretion over “if, how, and 12 where to build border infrastructure.” (Id. at 6-7.) 13 The State responds that it is not required to allege separate statutory violations to 14 bring an APA challenge, and because the consolidated appropriations acts at issue constrain 15 DHS’s discretion in meaningful ways, its APA challenge is reviewable. (Doc. 33 at 7-11.) 16 In reply, Defendants contend that “the parties agree that APA review is unavailable 17 for decisions committed to agency discretion by law, [a]nd Congress has committed the 18 challenged [border wall construction] decisions to the Secretary of Homeland Security’s 19 discretion” through IIRIRA. (Doc. 36 at 8-9.) 20 B. Analysis 21 The State lacks standing to pursue Count Five for the same reasons that it lacks 22 standing to pursue Count Two—namely, the State has not shown the requisite causal 23 connection between Defendants’ decision to terminate border wall construction and its 24 alleged harms. This obviates (at least for now) the need to reach the merits of Count Five, 25 including whether the State’s claims constitute “standalone APA claims” and whether the 26 relevant statutes commit the decision to terminate border wall construction to agency 27 discretion.

28 3 This order contains no analysis concerning Count Four because the State has withdrawn that claim. (Doc. 20.) 1 VI. Count Six: MPP—Arbitrary And Capricious Challenge 2 A. Parties’ Arguments 3 In Count Six of the FAC, the State alleges that the decision to terminate the MPP 4 “represents an abrupt departure from [previous] policy without sufficient justification” and 5 is also arbitrary and capricious under the APA. (Doc. 13 ¶¶ 172-77.) 6 Defendants move to dismiss Count Six for the same reasons as Count Five: a lack 7 of standing; because “[w]ith no identified statutory criteria, there is no law to apply, and 8 Arizona’s claims fall beyond the APA’s limited waiver of sovereign immunity”; and 9 because “whether to return certain noncitizens to Mexico pending removal proceedings is 10 committed to DHS’s discretion by statute.” (Doc. 27 at 1, 7.) 11 The State responds that the validity of its challenge is confirmed by Texas v. Biden, 12 which characterized the termination of the MPP as an enforcement decision and determined 13 that Texas had shown a strong likelihood of success on the merits because the termination 14 of the MPP failed to consider “relevant factors” and “important aspects of the problem.” 15 (Doc. 33 at 11-12.) 16 In reply, Defendants contend that, as with Count Five, APA review is unavailable 17 for decisions committed to agency discretion by law and Congress has committed the 18 challenged decisions to terminate the MPP to DHS’s discretion via the Immigration and 19 Nationality Act. (Doc. 36 at 8-9.) 20 B. Analysis 21 This claim requires supplemental briefing for the reasons given above as to Count 22 Three. Because the Court must assure itself that subject-matter jurisdiction exists before 23 proceeding to the merits, the Court will postpone any further analysis of Count Six until 24 supplemental briefing has been provided. 25 VII. Count Seven: Take Care Clause 26 A. Parties’ Arguments 27 In Count Seven of the FAC, the State alleges that Defendants violated Article II, 28 Section 3 of the Constitution (the “Take Care Clause”) via the decision to terminate border 1 wall construction projects. (Doc. 13 ¶¶ 178-85.) Specifically, the State alleges that 2 “Congress allocated to DHS considerable funds to spend on border construction, with 3 specific instructions detailing what those funds may be used for. Defendants, in violation 4 of their obligation to take care that those laws are faithfully executed, are withholding the 5 funds and refusing to proceed with the statutorily mandated program.”4 (Id. ¶ 179.) 6 Defendants argue that Count Seven (like all of the other claims) fails for a lack of 7 standing. (Doc. 27 at 1.) Alternatively, Defendants argue that “the Take Care Clause does 8 not provide a private right of action against the Executive, and the State may not circumvent 9 Congress’ prescribed mechanism for judicial review—the APA—by characterizing its 10 claim as a constitutional violation.” (Id. at 8.) Defendants continue that, “[a]s far as [they] 11 can tell, no court has ever held that the Take Care Clause provides a mechanism to obtain 12 affirmative relief against the Executive. Courts confronted with the question have either 13 failed to resolve it or else answered in the negative.” (Id. at 9.) Finally, Defendants argue 14 that even if Count Seven were otherwise cognizable, it would still fail to state a claim 15 because “DHS does not violate the appropriations acts or the Take Care Clause by using 16 its appropriated funds to close out existing projects or to prepare environmental reviews to 17 guide future exercises of that discretion.” (Id. at 11.) 18 The State responds that “[i]n spite of th[e] affirmative obligation” to construct a 19 border wall as directed in the consolidated appropriations acts, “Defendants have— 20 consistent with the President’s proclamation—determined not to spend these funds, 21 decided to illegally impound them, and have resorted to repeatedly asking Congress to 22 relieve them from this known illegality by cancelling the funding. . . . [N]o more clear 23 violation of the Take Care Clause of the Constitution could be imagined than this attempt 24 to dispense with a law of Congress.” (Doc. 33 at 12.) The State contends that, “[a]t best, 25 the authorities cited by Defendants state that it is ‘unclear’ whether some Take Care claims 26

27 4 Although the FAC also alleges that “Defendants’ actions similarly violate the Impoundment Control Act of 1974” (Doc. 13 ¶ 182), both parties now agree that the State 28 is not pursuing a freestanding claim under that statute. (Doc. 33 at 12 n.5; Doc. 37 at 9 n.7.) 1 against the President are . . . justiciable. . . . But it is simply not true that courts have not 2 entertained these claims.” (Id. at 13-14.) In support of this assertion, the State cites Center 3 for Biological Diversity v. Bernhardt, 946 F.3d 553 (9th Cir. 2019), and City & County of 4 San Francisco v. Trump, 897 F.3d 1225, 1234 (9th Cir. 2018). The State further argues 5 that its Take Care Clause claim is a “validly pled alternative basis for invalidating 6 Defendants’ Border Wall Construction Termination. There is nothing that prevents agency 7 action from violating both the Constitution and the APA.” (Id. at 15.) The State argues 8 that Defendants displaced an obligation of Congress and pursued a contrary policy, under 9 the guise of nonenforcement (id. at 15-16), and that Count Seven is valid because the FAC 10 “specifically alleged that Defendants have finally terminated the construction of the border 11 wall and have no intention of spending that money” (id. at 16). 12 In reply, Defendants contend that the State is “simply alleging that the President has 13 exceeded his statutory authority [which is] not [a] ‘constitutional’ claim[].” (Doc. 36 at 9, 14 quoting Dalton v. Specter, 511 U.S. 462, 473-74 (1994).) According to Defendants, “[t]he 15 State’s Take Care Clause allegations hinge on whether DHS violated statutes . . . . Under 16 Arizona’s approach, every statutory violation would be a constitutional Take Care Clause 17 claim, and any litigant could evade the APA by alleging the violation advances a contrary 18 policy goal. (Id. at 10.) Finally, Defendants contend that “DHS’s publicly available Border 19 Wall Plan, . . . shows that DHS is not withholding border barrier funding but will use its 20 funding to—among other things—close out project sites and remediate environmental 21 harm from past construction.” (Id. at 11.) 22 B. Analysis 23 The Court agrees with Defendants that Count Seven is subject to dismissal. First, it 24 is unclear how the State could have standing to pursue this claim if it lacks standing to 25 pursue Counts Two and Five. In all three claims, the State seeks to challenge Defendants’ 26 termination of border wall construction projects and argues that it has standing because the 27 challenged conduct has caused it to sustain various environmental and other injuries. The 28 lack of causation that undermined the State’s claim of standing in Counts Two and Five is 1 equally present here. Additionally, because Count Seven (unlike Counts Two and Five) 2 does not arise under the APA, the State cannot attempt to take advantage of any “relaxation 3 of causation and redressability” that applies to claims of “procedural injury.” (Doc. 29 at 4 10.) 5 Second, even if the State had standing to pursue Count Seven, that claim would be 6 subject to dismissal under Rule 12(b)(6). As an initial matter, it is unclear whether Take 7 Care Clause claims are ever cognizable. In Mississippi v. Johnson, 71 U.S. 475 (1866), 8 the Supreme Court explained that the President’s constitutional duty “in the exercise of the 9 power to see that the laws are faithfully executed” is “[v]ery different” from other 10 constitutional duties and then stated that any “attempt on the part of the judicial department 11 of the government to enforce the performance of such duties by the President might be 12 justly characterized, in the language of Chief Justice Marshal, as ‘an absurd and excessive 13 extravagance.’” Id. at 499. It appears that, in the 150 years since Johnson was decided, no 14 court has ever held that the Take Care Clause provides a mechanism to obtain affirmative 15 relief against the President or other executive branch officials. See, e.g., Citizens for Resp. 16 & Ethics in Washington v. Trump, 302 F. Supp. 3d 127, 130 (D.D.C. 2018), aff’d, 924 F.3d 17 602 (D.C. Cir. 2019) (“Whether claims brought directly under the Take Care Clause are 18 even justiciable is open to debate.”); id. at 139 (noting that Johnson “can be fairly read to 19 suggest that a Take Care Clause claim is outright non-justiciable” but also noting that “the 20 government cites no case adopting that understanding of Johnson and the Court is aware 21 of none”); Am. Fed’n of Gov’t Employees, AFL-CIO v. Trump, 318 F. Supp. 3d 370, 439 22 (D.D.C. 2018), rev’d and vacated on other grounds, 929 F.3d 748 (D.C. Cir. 2019) (“[I]t 23 is not at all clear that a claim under the Take Care Clause presents a justiciable claim for 24 this Court’s resolution.”). 25 The cases cited by the State are not to the contrary. In City & County of San 26 Francisco, the question was “whether, in the absence of congressional authorization, the 27 Executive Branch may withhold all federal grants from so-called ‘sanctuary’ cities and 28 counties.” 897 F.3d at 1231. Although the Ninth Circuit happened to mention the Take 1 Care Clause in the course of its analysis—“[W]hen it comes to spending, the President has 2 none of ‘his own constitutional powers’ to ‘rely’ upon. Rather, the President has a 3 corresponding obligation—to ‘take Care that the Laws be faithfully executed.’ Because 4 Congress’s legislative power is inextricable from its spending power, the President’s duty 5 to enforce the laws necessarily extends to appropriations. Moreover, the obligation is an 6 affirmative one, meaning that failure to act may be an abdication of the President’s 7 constitutional role.” Id. at 1233-34 (citations omitted)—the court did not hold or even 8 suggest that the challengers’ claim arose under the Take Care Clause. To the contrary, the 9 court held that the challenged conduct was impermissible “under the principle of 10 Separation of Powers and in consideration of the Spending Clause.” Id. at 1231. See also 11 id. at 1233 (“For us, then, the question is whether the Executive Order violates the 12 Separation of Powers, pursuant to which the Constitution committed the Spending power 13 to Congress.”); id. at 1235 (“Because Congress did not authorize withholding of funds, the 14 Executive Order violates the constitutional principle of the Separation of Powers.”). 15 Although it might be possible to construe the Ninth Circuit’s references to the “Separation 16 of Powers” as some sort of shorthand for the Take Care Clause, this interpretation is 17 implausible—if the Ninth Circuit was attempting to break new ground by explicitly 18 recognizing a species of constitutional claim against the President that has not been 19 recognized by other courts in the century and a half since Johnson was decided, it 20 presumably would have said so with more precision. 21 Meanwhile, in Center for Biological Diversity, Congress relied on its authority 22 under the Congressional Review Act (“CRA”) to enact a joint resolution that disapproved 23 of certain hunting regulations promulgated by the Department of Interior (“Interior”). 946 24 F.3d at 556-57. After the President signed the joint resolution, Interior rescinded the 25 regulations in question. Id. at 558-59. In response, an environmental group filed a lawsuit 26 in which it sought to compel Interior to reinstate the regulations for various reasons, 27 including that “the Joint Resolution and the CRA violate the Take Care Clause of the 28 Constitution.” Id. at 559. As for that claim, the challenger’s specific theory was that 1 because Congress failed to follow “the constitutionally required process of bicameralism 2 and presentment” when passing the joint resolution, the resolution was ineffective and thus 3 improperly “prevent[ed] the President from exercising his constitutional duty to faithfully 4 execute the laws.” Id. at 561-62. The Ninth Circuit easily rejected this claim, holding that 5 it was not “plausible on its face” because “validly enacted legislation that requires an 6 agency to take a specified action does not impinge on the Take Care Clause or violate 7 separation-of-powers principles.” Id. at 562. In reaching this conclusion, the court did not 8 cite Johnson or include any discussion of the general cognizability of claims arising under 9 the Take Care Clause. Id. Again, although it might be possible to construe the absence of 10 such discussion as an implicit determination that Take Care Clause claims are cognizable, 11 the Court is hesitant to conclude that the Ninth Circuit reached such a potentially 12 groundbreaking conclusion sub silentio. Cf. Webster v. Fall, 266 U.S. 507, 511 (1925) 13 (“Questions which merely lurk in the record, neither brought to the attention of the court 14 nor ruled upon, are not to be considered as having been so decided as to constitute 15 precedents.”); Sloan v. State Farm Mut. Auto. Ins. Co., 360 F.3d 1220, 1231 (10th Cir. 16 2004) (“Cases are not authority for propositions not considered.”) (cleaned up). See 17 generally United States v. McAdory, 935 F.3d 838, 843 (9th Cir. 2019) (law of the circuit 18 arises only when “a panel confronts an issue germane to the eventual resolution of the case, 19 and resolves it after reasoned consideration in a published opinion”) (cleaned up) 20 (emphasis added). 21 At any rate, even assuming that Take Care Clause claims might be cognizable in a 22 narrow range of circumstances, the Supreme Court has emphasized that not all separation- 23 of-powers claims directed against the executive branch are truly constitutional claims. See, 24 e.g., Dalton, 511 U.S. at 472 (“Our cases do not support the proposition that every action 25 by the President, or by another executive official, in excess of his statutory authority is ipso 26 facto in violation of the Constitution. On the contrary, we have often distinguished 27 between claims of constitutional violations and claims that an official has acted in excess 28 of his statutory authority.”). It is possible that a claim that the President “affirmatively 1 displaced a congressionally mandated test” or process—rather than a claim that the 2 President simply did not comply with a congressionally prescribed process—may implicate 3 constitutional concerns. See, e.g., Make the Rd. New York v. Pompeo, 475 F. Supp. 3d 232, 4 258 (S.D.N.Y. 2020) (emphasis added). Here, however, the State claims that the President 5 flouted congressional mandates by refusing to spend appropriated funds to build the border 6 wall. This is best categorized as a statutory claim. 7 In In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013), the D.C. Circuit addressed an 8 analogous situation. Under the Nuclear Waste Policy Act, the Nuclear Regulatory 9 Commission (“NRC”) is required to consider the Department of Energy’s licensing 10 applications for storing nuclear waste and to issue final decisions approving or 11 disapproving such applications. Id. at 257. The controversy in Aiken County arose after 12 the NRC failed to take action on a license application by the statutory deadline, even though 13 “Congress appropriated funds to the Commission so that the Commission could conduct 14 the statutorily mandated licensing process.” Id. at 258. This failure arose because the NRC 15 “ha[d] no . . . intention of complying with the law.” Id. Although the D.C. Circuit 16 recognized that “[t]his case raises significant questions about the scope of the Executive’s 17 authority to disregard federal statutes,” the court ultimately concluded that “[i]n these 18 circumstances, where previously appropriated money is available for an agency to perform 19 a statutorily mandated activity, . . . the Commission’s inaction violates the Nuclear Waste 20 Policy Act.” Id. at 257, 260-61. 21 So, too, here. A claim that executive officials failed to follow appropriations acts 22 “is another way of saying that the President and officials violated those statutes.” Center 23 for Biological Diversity v. Trump, 453 F. Supp. 3d 11, 53 (D.D.C. 2020) (emphasis added). 24 “Under Dalton, [the State] cannot recast these types of claims as constitutional.” Id. 25 For these reasons, Count Seven is dismissed. This outcome makes it unnecessary 26 to reach the other dismissal arguments raised by Defendants. 27 … 28 … 1 VIII. Motion For Jurisdictional Discovery 2 A. Parties’ Arguments 3 Following the issuance of the February 2022 order, which cast doubt upon the 4 State’s ability to establish the required causal link between the cessation of border wall 5 construction and the State’s asserted injuries, the State moved for “targeted jurisdictional 6 discovery” of information related to this question “uniquely in the custody and control” of 7 Defendants. (Doc. 48 at 1.) The State contends that it satisfies the Ninth Circuit’s standard 8 for jurisdictional discovery—which it characterizes as a showing that a “mere possibility” 9 of discovering useful evidence exists—because (1) Defendants “are in the best position to 10 know why, how often, and where migrants cross the border”; (2) Defendants “presumably 11 considered” “why aliens choose to enter the country illegally and whether the construction 12 of certain impediments . . . would result in effective deterrence”; (3) Defendants have 13 announced plans to engage in environmental remediation at the border, and information 14 about such plans “would shed light on the environmental impact of the . . . decision to 15 terminate the border barrier construction”; and (4) the discovery requested here is the same 16 as that ordered in Arizona v. U.S. Dept. of Homeland Security, 2021 WL 2787930, *6-7 17 (D. Ariz. 2021), which is a case challenging Defendants’ February 18, 2021 Interim 18 Guidance affecting civil immigration and enforcement decisions. (Id. at 2-4.) 19 Defendants respond that the State does not explain how the discovery it seeks could 20 cure its lack of standing and “overlooks that any number of variables might influence an 21 alien’s independent decision to enter the country illegally and fails to show that aliens 22 would do so because of Defendants’ failure to build portions of an incomplete border wall.” 23 (Doc. 51 at 1.) Defendants also argue that jurisdictional discovery would be futile because 24 the Court identified non-jurisdictional grounds for denying injunctive relief. (Id.) As for 25 the applicable standard, Defendants argue that the Court “should deny discovery requests 26 when it is clear further discovery would not demonstrate facts sufficient to constitute a 27 basis for jurisdiction” and that “[a] mere hunch that discovery might yield jurisdictionally 28 relevant facts is insufficient.” (Id. at 2 [cleaned up].) Defendants also contend that, 1 “[b]ecause this is an APA case, discovery would be highly unusual.” (Id.) Turning to the 2 merits, Defendants contend each of the State’s proffered reasons fail. First, Defendants 3 argue that although “[i]t is true that the immigration policy is the exclusive domain of 4 [Defendants] and that [Defendants] compile statistics on migrant encounters . . . , the 5 germane question is not how many migrants are crossing, or where. It is why they choose 6 to cross. And this knowledge is not in Defendants’ possession. . . . The specific reasons 7 underlying individual migration decisions are known only to the migrants themselves.” 8 (Id. at 3-4.) Further, Defendants contend that “divin[ing] the motives of non-parties” is 9 distinct from the personal jurisdiction issues raised in the State’s cited cases, in which 10 jurisdictional discovery can more readily be shown to yield useful information. (Id. at 4.) 11 Second, Defendants argue that “it is unclear why Arizona believes the government’s view 12 on the effectiveness of the border wall as a deterrent is relevant to the State’s standing or 13 why the State needs discovery on that point,” as the question of efficacy has already been 14 developed in the record. (Id. at 5.) Third, Defendants argue that “[r]emediation and close 15 out work does not bolster Arizona’s claim of environmental harm because the agencies are 16 addressing impacts from construction, not from terminating construction” and that the 17 “Court’s holding on standing turned on traceability, not injury-in-fact . . . , [s]o any 18 discovery on the remediation plan is untethered to Arizona’s standing problem.” (Id. at 6.) 19 Fourth, Defendants argue that the “decision to allow jurisdictional discovery in Arizona v. 20 U.S. Department of Homeland Security does not support discovery here” because that case 21 alleged DHS was releasing migrants directly into the state, which this Court has already 22 determined is not as causally attenuated as terminating border wall construction. (Id. at 6- 23 7.) 24 In reply, the State argues that Defendants “mischaracterize [both] the Court’s 25 decision [in the February 2022 order] as forbidding Arizona’s standing theory writ large” 26 as well as “the State’s burden, as though the State must show precisely what is in the minds 27 of prospective migrants” to demonstrate standing, when, in fact, it need only establish “that 28 the injury was a ‘predictable effect’ of the Defendants’ actions.” (Doc. 52 at 2, 4.) The 1 State further argues that “because DHS has itself concluded that environmental remediation 2 measures are required . . . , it is essentially inconceivable that DHS would not possess 3 documents to the State’s standing,” as such documents will “inform whether termination 4 harmed the State.” (Id. at 3-4.) The State continues that it “does not have access to 5 planning documents, law enforcement records from border patrol about migrant crossings, 6 or even the administrative record on this decision. These documents would likely show 7 that termination of border barriers caused or was expected to cause more migration directly, 8 or that it caused it to take place in specified corridors.” (Id. at 5.) The State also reasserts 9 that the Court is not limited to the administrative record in ascertaining standing in an APA 10 case. (Id. at 7.) With respect to Defendants’ futility argument, the State argues that it “has 11 claims besides its NEPA claim involving the border wall,” including its Take Care Clause 12 claim, and “the Court’s determination that NEPA would likely not apply is, by its own 13 terms, merely a prediction about which side is likely to prevail.” (Id. at 8.) Finally, the 14 State argues that Defendants mischaracterize the challenge in Arizona v. Department of 15 Homeland Security—there, the State “challenged a memorandum which [it] alleged had 16 the predictable effect of greatly reducing immigrant detainers and the effect of releasing 17 people from detention,” and discovery revealed these actual effects. (Id. at 8-9.) 18 B. Analysis 19 The motion to conduct jurisdictional discovery is denied for two independent 20 reasons. 21 First, the motion is untimely. Defendants filed their motion to dismiss in October 22 2021. (Doc. 27.) The State filed its response in November 2021. (Doc. 33.) Nowhere in 23 the response did the State suggest that it needed to pursue additional discovery in order to 24 meet its burden of establishing subject-matter jurisdiction—instead, the State chose to 25 stand on the sufficiency of its existing allegations and evidence. (Id. at 3-5.) The motion 26 to dismiss became fully briefed and ripe for resolution in early December 2021. (Doc. 36.) 27 Finally, in early February 2022, the Court issued a detailed order that analyzed the 28 sufficiency of the State’s jurisdictional-related evidence for purposes of the State’s request 1 for preliminary injunctive relief. (Doc. 47.) Although the February 2022 order only 2 addressed whether the State was likely to succeed on its jurisdictional showing, the order 3 strongly indicated that the State would ultimately be found to lack standing, at least with 4 respect to its border wall-related claims. It was only after this order issued that the State 5 moved to conduct jurisdictional discovery. (Doc. 48.) Under the circumstances, the 6 request comes too late. Cockrum v. Donald J. Trump for President, Inc., 319 F. Supp. 3d 7 158, 187-88 (D.D.C. 2018) (noting that “[w]hen a defendant has moved to dismiss a 8 complaint on jurisdictional grounds, the appropriate time to request jurisdictional 9 discovery is in opposition to the defendant’s motion” and holding that the plaintiffs’ request 10 “came too late” because “Plaintiffs waited until after the Court’s hearing to file a 24-page 11 motion for jurisdictional discovery, presumably because the Court’s extensive questioning 12 on personal jurisdictional alerted plaintiffs to the risk of relying on their complaint”). Cf. 13 Dearing v. Magellan Health Inc., 2020 WL 7041048, *2 (D. Ariz. 2020) (denying request 14 for jurisdictional discovery as “untimely” because it was not raised until after the motion 15 to dismiss was fully briefed and resolved); City of Moundridge v. Exxon Mobil Corp., 244 16 F.R.D. 10, 14-15 (D.D.C. 2007) (“Here, plaintiffs neither independently sought 17 jurisdictional discovery, nor requested it in response to defendants’ motion to dismiss. 18 Only now, after an adverse decision, have plaintiffs asserted a need for jurisdictional 19 discovery. This alone is reason to deny the request for jurisdictional discovery.”). 20 Second, and alternatively, the request fails on the merits. “An appellate court will 21 not interfere with the trial court’s refusal to grant discovery except upon the clearest 22 showing that the dismissal resulted in actual and substantial prejudice to the litigant; such 23 a refusal is not an abuse of discretion when it is clear that further discovery would not 24 demonstrate facts sufficient to constitute a basis for jurisdiction. Discovery, however, 25 should be granted where pertinent facts bearing on the question of jurisdiction are 26 controverted or where a more satisfactory showing of the facts is necessary.” Wells Fargo 27 & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977) (cleaned up). 28 “Prejudice is established if there is a reasonable probability that the outcome would have 1 been different had discovery been allowed.” Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 2 1093 (9th Cir. 2003). It is not an abuse of discretion to deny a request for jurisdictional 3 discovery that is “based on little more than a hunch that it might yield jurisdictionally 4 relevant facts.” Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008). 5 Here, as an initial matter, although this order will result in the dismissal of four of 6 the State’s claims (Counts One, Two, Five, and Seven), three of those claims (Counts One, 7 Two, and Seven) are being dismissed at least in part for failure to state a claim under Rule 8 12(b)(6). The State obviously does not need to pursue additional jurisdictional discovery 9 with respect to those claims because they would fail regardless of the presence or absence 10 of jurisdiction. 11 As for Count Five, the claim asserted there is that Defendants’ decision to terminate 12 construction on the border wall violated the APA because that decision “was not the 13 product of reasoned decision-making,” was “entirely unstudied and arbitrary,” and was 14 done without “any thoughtful analysis . . . [and] without engaging in meaningful thought.” 15 (Doc. 13 ¶ 168-69.) The allegations are difficult to reconcile with the State’s current 16 position, which is that jurisdictional discovery would be fruitful because “[t]he federal 17 government, in making the decisions challenged in this case, presumably considered 18 [various] precise questions,” including “why aliens choose to enter the country illegally 19 and whether the construction of certain impediments to their entry . . . would result in 20 effective deterrence.” (Doc. 48 at 3.) Such an internally inconsistent theory resembles 21 “little more than a hunch.” Boschetto, 539 F.3d at 1020. 22 Even putting aside this contradiction, jurisdictional discovery would not be 23 warranted here. The State argues that Defendants “are in the best position to know why, 24 how often, and where migrants cross the border” and that the requested materials will 25 therefore help demonstrate that increased migration was a predictable effect of Defendants’ 26 conduct. However, the Ninth Circuit in Whitewater Draw made clear that statistics about 27 how often and where migrants cross the border are irrelevant to answering the question of 28 whether a challenged government policy will have a predictable effect on “an alien’s 1 independent decision to resettle,” which may be influenced by “any number of variables.” 2 5 F.4th at 1017. The Ninth Circuit also clarified that, when addressing the “predictable 3 effect” of immigration-related rules on migration, “the degree of predictability matters” 4 and plaintiffs must still come forward with “relevant evidence” and not “mere speculation 5 about the decisions of third parties.” Id. at 1017-18. Here, beyond making vague requests 6 for “planning documents” and “law enforcement records,” the State does not point to any 7 specific evidence allegedly in Defendants’ possession that would address the relevant 8 causation questions in this case.5 Nor does the State explain how the evidence it seeks 9 would otherwise goes to the crux of the causation issues discussed in the February 2022 10 order, this order, or Arizona v. Biden. See also Carrero v. Farrelly, 310 F. Supp. 3d 542, 11 549 n.5 (D. Md. 2018) (denying request for jurisdictional discovery in part because “none 12 of the specific topics cited by Plaintiff are relevant to her standing” and “discovery into 13 ‘how that information is used by state and local law enforcement officers’ is a strikingly 14 open-ended request that would presumably involve third-party discovery”); Schuchardt v. 15 President of the United States, 839 F.3d 336, 353 (3d Cir. 2016) (“Jurisdictional discovery 16 is not a license for the parties to engage in a ‘fishing expedition’ . . . .”). 17 IX. Leave To Amend 18 The State requests leave to amend if the Court concludes it has not adequately 19 alleged standing. (Doc. 33 at 3 n.4.) The State explains that, if granted leave, it would 20 amend its complaint by adding new factual allegations consistent with “the evidence 21 submitted in the preliminary injunction briefing.” (Id.) Defendants do not address this 22 request in their reply. 23 The State’s request is governed by Rule 15(a) of the Federal Rules of Civil 24 5 During oral argument, the States suggested that its attempt to establish standing 25 would be bolstered by the production of studies by the Border Patrol about changes in migration patterns after the completion of border wall construction in the Yuma sector. 26 This argument lacks merit. Although such studies might show a shift in migration patterns to other sectors where border wall construction was not complete, the record in this case is 27 that, “regardless of Defendants’ action or inaction, Arizona would have been left with an incomplete wall on its southern border filled with gaps” and that “filling some of the gaps 28 in an incomplete border wall, as the federal government did between 2018 and 2020, does not ensure that migrants will be deterred from entering.” (Doc. 47 at 17.) 1 Procedure, which “advises the court that ‘leave [to amend] shall be freely given when 2 justice so requires.’” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 3 2003). “This policy is ‘to be applied with extreme liberality.’” Id. (citation omitted). Thus, 4 the State’s amendment request should be granted unless “the amendment: (1) prejudices 5 the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or 6 (4) is futile.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 7 2006). 8 In the tentative order, the Court stated that it was inclined to deny the State’s 9 amendment request on futility grounds because the only standing-related allegations the 10 State would add if given the chance were allegations consistent with the evidence it 11 proffered during the preliminary injunction proceeding. (Doc. 56 at 29.) However, during 12 oral argument, Defendants stated that they expect to produce additional information to the 13 State (pursuant to a FOIA request) in the near future. Given this development, it is at least 14 theoretically possible that the State will, upon receipt of this new information, be able to 15 amend its complaint to add new factual allegations intended to shore up the jurisdictional 16 deficiencies raised in this order. Although this theoretical possibility is not enough to 17 support an untimely motion for jurisdictional discovery, it is arguably enough to satisfy 18 Rule 15’s liberal policies favoring amendment. Thus, the State is granted leave to amend 19 as to Count Five. Leave to amend is not granted as to the remaining dismissed counts 20 because they are being dismissed at least in part for non-jurisdictional reasons. 21 … 22 … 23 … 24 … 25 … 26 … 27 … 28 … 1 Accordingly, 2 IT IS ORDERED that Defendants’ motion to dismiss (Doc. 27) is granted in part. || Counts One, Two, and Seven of the FAC are dismissed without leave to amend. Count 4|| Five of the FAC is dismissed with leave to amend. 5 IT IS FURTHER ORDERED that the State may file a Second Amended 6 || Complaint (“SAC”) within 14 days of the issuance of the Supreme Court’s decision in 7\| Biden v. Texas. If the State files a SAC, the changes shall be limited to attempting to cure 8 || the deficiencies raised in this order and the State shall, consistent with LRCiv 15.1(a), 9|| attach a redlined version of the pleading as an exhibit. 10 IT IS FURTHER ORDERED that the parties file supplemental briefing regarding 11 || Counts Three and Six. Each side’s brief, which may not exceed 10 pages, must be filed within 14 days of the issuance of the Supreme Court’s decision in Biden v. Texas. 13 IT IS FURTHER ORDERED that the State’s motion for jurisdictional discovery (Doc. 48) is denied. 15 Dated this 28th day of April, 2022. 16 17 Lm ee” 18 f CC —— Dominic W, Lanza 19 United States District Judge 20 21 22 23 24 25 26 27 28

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