Arizona v. City and County of San Francisco, 596 U.S. ___ (2022)

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 20–1775

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ARIZONA, et al., PETITIONERS v. CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 15, 2022]

Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

It is so ordered.

SUPREME COURT OF THE UNITED STATES

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No. 20–1775

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ARIZONA, et al., PETITIONERS v. CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 15, 2022]

Chief Justice Roberts, with whom Justice Thomas, Justice Alito, and Justice Gorsuch join, concurring.

This case involves a regulation known as the Public Charge Rule, promulgated by the Department of Homeland Security in 2019. See 84 Fed. Reg. 41292 (2019). The Rule set out the test the Department planned to use to determine whether an applicant for admission into the country or adjustment to lawful permanent resident status is “likely at any time to become a public charge,” which would make him ineligible. 8 U. S. C. §1182(a)(4)(A). Several parties filed lawsuits arguing that the Rule was unlawful because it defined “public charge” too broadly.

We granted certiorari in this case not to address the merits of that argument, but to decide whether the petitioners—13 States which support the Rule—should have been permitted to intervene in this litigation to defend the Rule’s legality in the Court of Appeals. Petitioners argue that the answer is yes, in light of the Government’s actions.

When this and other suits challenging the Rule were first brought in 2019, the Government defended it. And when multiple lower courts, including the District Court here, found the Rule unlawful, the Government appealed those decisions. After a change in administrations, though, the Government reversed course and opted to voluntarily dismiss those appeals, leaving in place the relief already entered.

A new administration is of course as a general matter entitled to do that. But the Government then took a further step. It seized upon one of the now-consent judgments against it—a final judgment vacating the Rule nationwide, issued in a different litigation—and leveraged it as a basis to immediately repeal the Rule, without using notice-and-comment procedures. 86 Fed. Reg. 14221 (2021) (“Because this rule simply implements the district court’s vacatur of the August 2019 rule . . . DHS is not required to provide notice and comment.”). This allowed the Government to circumvent the usual and important requirement, under the Administrative Procedure Act, that a regulation originally promulgated using notice and comment (as the Public Charge Rule was) may only be repealed through notice and comment, 5 U. S. C. §551(5); see Perez v. Mortgage Bankers Assn., 575 U.S. 92, 101 (2015). As part of this tactic of “rulemaking-by-collective-acquiescence,” City and County of San Francisco v. United States Citizenship and Immigration Servs., 992 F.3d 742, 744 (CA9 2021) (VanDyke, J., dissenting), the Government successfully opposed efforts by other interested parties—including petitioners here—to intervene in order to carry on the defense of the Rule, including possibly before this Court.

These maneuvers raise a host of important questions. The most fundamental is whether the Government’s actions, all told, comport with the principles of administrative law. But bound up in that inquiry are a great many issues beyond the question of appellate intervention on which we granted certiorari, among them standing; mootness; vacatur under United States v. Munsingwear, Inc., 340 U.S. 36 (1950); the scope of injunctive relief in an APA action; whether, contrary to what “[t]he government has long argued,” the APA “authorize[s] district courts to vacate regulations or other agency actions on a nationwide basis,” Brief for Federal Respondents 5, n. 3; how the APA’s procedural requirements apply in this unusual circumstance, cf. §551(5); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); and more.

It has become clear that this mare’s nest could stand in the way of our reaching the question presented on which we granted certiorari, or at the very least, complicate our resolution of that question. I therefore concur in the Court’s dismissal of the writ of certiorari as improvidently granted. But that resolution should not be taken as reflective of a view on any of the foregoing issues, or on the appropriate resolution of other litigation, pending or future, related to the 2019 Public Charge Rule, its repeal, or its replacement by a new rule. See Cook County v. Mayorkas, 340 F.R.D. 35 (ND Ill. 2021), appeal pending, No. 21–2561 (CA7); 87 Fed. Reg. 10571 (2022) (new proposed rule that would “implement a different policy than the 2019 Final Rule”).

June 18, 2021 Petition for a writ of certiorari filed. (Response due July 23, 2021)
July 9, 2021 Motion to extend the time to file a response from July 23, 2021 to August 23, 2021, submitted to The Clerk.
July 12, 2021 Motion to extend the time to file a response is granted and the time is extended to and including August 23, 2021, for all respondents.
August 23, 2021 Brief of respondent United States in opposition filed.
August 23, 2021 Brief of respondents State of California et al. in opposition filed.
August 23, 2021 Brief of respondents City and County of San Francisco, et al. in opposition filed.
August 23, 2021 Brief of respondents Washington et al. in opposition filed. (Distributed)
September 8, 2021 DISTRIBUTED for Conference of 9/27/2021.
September 8, 2021 Reply of petitioners Arizona, et al. filed. (Distributed)
October 4, 2021 DISTRIBUTED for Conference of 10/8/2021.
October 12, 2021 DISTRIBUTED for Conference of 10/15/2021.
October 25, 2021 DISTRIBUTED for Conference of 10/29/2021.
October 29, 2021 Petition GRANTED limited to Question 1 presented by the petition.
December 13, 2021 Brief of petitioners Arizona, et al. filed.
December 13, 2021 Joint appendix filed.
December 14, 2021 Blanket Consent filed by Petitioner, Arizona, et al.
December 17, 2021 ARGUMENT SET FOR Wednesday, February 23, 2022.
December 17, 2021 Brief amicus curiae of America First Legal Foundation filed.
December 20, 2021 Brief amicus curiae of Immigration Reform Law Institute filed.
December 20, 2021 Brief amici curiae of Ohio, et al. filed.
December 21, 2021 Record requested from the U.S.C.A. 9th Circuit.
January 12, 2022 Brief of respondents City and County of San Francisco and County of Santa Clara filed.
January 12, 2022 Brief of State Respondents filed.
January 12, 2022 Brief of Federal Respondents filed.
January 18, 2022 CIRCULATED
January 19, 2022 Motion for divided argument filed by the Solicitor General.
January 24, 2022 Motion for divided argument filed by the Solicitor General GRANTED.
December 21, 2021 The record from the U.S.C.A. 9th Circuit is electronic and located on Pacer.
December 21, 2021 The record from the U.S.D.C. Eastern District of Washington (Richland) is electronic and located on Pacer.
February 11, 2022 Reply of Arizona, et al. submitted.
February 11, 2022 Reply of petitioner Arizona, et al. filed. (Distributed)
February 17, 2022 Letter of federal respondents submitted.
February 17, 2022 Letter of the Solicitor General updating on status of availability of NPRM text. (Distributed)
February 23, 2022 Argued. For petitioners: Mark Brnovich, Attorney General, Phoenix, Ariz. For federal respondents: Brian H. Fletcher, Principal Deputy Solicitor General, Department of Justice, Washington, D. C. For state respondents: Helen H. Hong, Deputy Solicitor General, San Diego, Cal.
August 23, 2021 Brief of respondent United States in opposition filed.
June 15, 2022 Writ of certiorari DISMISSED as improvidently granted. Opinion per curiam. Roberts, C. J., with whom Thomas, Alito, and Gorsuch, JJ., join, concurring.
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