UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ASYLUMWORKS, et al., Plaintiffs, Civil Action No. 20-cv-3815 (BAH) v. Chief Judge Beryl A. Howell ALEJANDRO N. MAYORKAS, Secretary, United States Department of Homeland Security, et al., Defendants. MEMORANDUM OPINION Seeking vacatur of two rules issued by the Department of Homeland Security (“DHS”) that, as of August 2020, curtail asylum seekers’ access to employment authorization documents, plaintiffs—three nonprofit organizations and eighteen individual noncitizen asylum seekers— now move for summary judgment asserting that the challenged rules are void ab initio because, at the time of their promulgation, Chad Wolf was not lawfully serving as Acting Secretary of Homeland Security. See Pls.’ Mot. for Partial Summ. J., ECF No. 25; Pls.’ Mem. Supp. Mot. for Partial Summ. J. (“Pls.’ Mem.”), at 2, 19, ECF No. 25-1. Specifically, plaintiffs maintain that Wolf’s service as Acting Secretary from 2019 to 2021 contravened the Appointments Clause, Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345 et seq., Homeland Security Act (“HSA”), 6 U.S.C. § 101 et seq., and internal DHS orders governing the agency’s line of succession. Pls.’ Mem. at 1-3. Defendants have cross-moved for summary judgment, insisting on the legality of Wolf’s appointment and otherwise asserting that any appointment defects as to one of the challenged rules were cured by current DHS Secretary Alejandro Mayorkas’s ratification of that rule in May 2021. See Defs.’ 1 Cross-Mot. for Partial Summ. J., ECF No. 28; Defs.’ Mem. Supp. Cross-Mot. for Summ. J. (“Defs.’ Mem.”), at 1, 28, ECF No. 29. Five other district courts across the country and another Judge on this Court have already concluded that Wolf’s appointment as Acting Secretary was invalid. See Pangea Legal Servs. v. U.S. Dep’t of Homeland Sec., 512 F. Supp. 3d 966 (N.D. Cal. 2021); Batalla Vidal v. Wolf, 501 F. Supp. 3d 117 (E.D.N.Y. 2020); Nw. Imm. Rights. Proj. v. USCIS, 496 F. Supp. 3d 31 (D.D.C. 2020); Imm. Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. 2020); Casa de Md., Inc. v. Wolf, 486 F. Supp. 3d 928 (D. Md. 2020); La Clinica De La Raza v. Trump, No. 19-cv-4980, 1 2020 WL 7053313 (N.D. Cal. Nov. 25, 2020). In so doing, one of these courts, on September 20, 2020, preliminarily enjoined enforcement of aspects of the DHS employment authorization rules at issue here, but only as to members of the two organizational plaintiffs in that case. See Casa de Md., Inc., 486 F. Supp. 3d at 973-74. Finding no reason to depart from the reasoned holding of these other decisions, this Court likewise concludes that Wolf’s ascension to the office of Acting Secretary was unlawful. As an issue of first impression, the Court further finds that Secretary Mayorkas’s ratification of the so- called “Timeline Repeal Rule” in May 2021 did not cure the defects as to that rule caused by Wolf’s unlawful tenure as Acting Secretary. Accordingly, for reasons set forth in detail …
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