Plaintiffs brought an Administrative Procedure Act (APA) challenge to the Department of Homeland Security’s revision of the definition of “public charge,” which would have the effect of denying a greater number of immigrants certain immigration benefits. The district court preliminary enjoined the rule on a nationwide basis. On appeal, a panel of the Fourth Circuit reversed the preliminary injunction, concluding that the plaintiffs were unlikely to succeed on the merits of their claims. The panel also opined that district courts should not grant nationwide injunctions except in extraordinary circumstances.
The plaintiffs petitioned for rehearing en banc. We filed an amicus brief supporting the request for en banc review of the panel’s opinion on nationwide injunctions. The brief explained that the default remedies authorized by the APA will typically have nationwide effect in the context of a facial challenge to agency rules. The brief also argued that the panel’s preferred outcome, in which a court’s relief would typically benefit only the parties to the litigation, would create confusion and would arbitrarily subject similarly situated persons to different regulatory regimes. Finally, the brief explained that the panel’s opinion was inconsistent with the approach taken by the Supreme Court and other courts of appeals. In December 2020, the Fourth Circuit agreed to rehear the case en banc.