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Keywords

statuteappealregulationliens

plaintiffstatuteappealmotionsummary judgmenttrustregulationmotion for summary judgment

Related Cases

Duran Gonzales v. Department of Homeland Security

Facts

In 2020, the Acting Secretary of DHS promulgated a rule allowing the agency to refuse business from certain surety firms that were delinquent in payments for absconding aliens. Some sureties challenged the rule, arguing that the Acting Secretary was not duly appointed, which could invalidate the rule. In 2021, Secretary Alejandro Mayorkas ratified the rule, asserting that he had full knowledge of it and believed the ratification was consistent with the Department's authorities. The district court later vacated the rule, leading to the government's appeal.

In December 2020, five companies engaged in the business of posting immigration surety bonds with the DHS ('Plaintiffs') sued the DHS, ICE, Wolf, and Kenneth Cuccinelli, under the title of Senior Official Performing the Duties of the Deputy Secretary of Homeland Security (collectively, 'the government') in the United States District Court for the Northern District of California, claiming that the Rule should be set aside under the Administrative Procedure Act ('APA'), 5 U.S.C. 701-06.

Issue

Did Secretary Mayorkas have the authority to ratify the promulgation of the rule, and was the Ratification Bar under the FVRA applicable in this case?

The question in this case is whether 5 U.S.C. 3348(d)(2), the Ratification Bar, which prohibits ratification of certain actions taken by a purported officer serving in violation of the Federal Vacancies Reform Act of 1998 ('FVRA') applies only to 'functions or duties' that are singularly entrusted by statute or regulation to that officer, and in other words are 'nondelegable.'

Rule

The Ratification Bar under the FVRA applies only to nondelegable functions or duties that are required by statute or regulation to be performed by the applicable officer.

By the statute's own definition, 1 3348(d)'s Ratification Bar applies only to nondelegable functions or duties because only nondelegable functions or duties are 'required by statute [or regulation] to be performed by the applicable officer (and only that officer).' 5 U.S.C. 3348(a)(2).

Analysis

The court determined that the Secretary of Homeland Security could delegate the promulgation of the rule, meaning it was not a nondelegable duty. Therefore, Secretary Mayorkas's ratification of the rule was valid and cured any defects in its original promulgation by the Acting Secretary. The court emphasized that the FVRA's Ratification Bar did not apply in this instance.

We conclude that the Secretary had the authority to delegate promulgation of the Rule; it was not a function or duty singularly entrusted to the Secretary. See 6 U.S.C. 112(b)(1). Because the Secretary could have delegated promulgation of the Rule, Secretary Mayorkas could ratify the 2020 promulgation of the Rule, regardless whether the Rule's promulgation had been actually delegated.

Conclusion

The Ninth Circuit reversed the district court's decision, holding that Secretary Mayorkas's ratification of the rule was valid and that the rule should not have been vacated.

Thus, we hold that the district court erred in granting Plaintiffs' motion for summary judgment because the FVRA did not bar Secretary Mayorkas from ratifying the Rule, and that ratification cured any defects in the Rule's 2020 promulgation.

Who won?

The United States Department of Homeland Security prevailed in the case because the Ninth Circuit found that the Secretary had the authority to ratify the rule, thus validating its promulgation.

The government timely appealed.

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