                             FOR PUBLICATION                            FILED
                   UNITED STATES COURT OF APPEALS                       AUG 16 2019
                                                                    MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS
                          FOR THE NINTH CIRCUIT

EAST BAY SANCTUARY COVENANT;                   No.   19-16487
AL OTRO LADO; INNOVATION LAW
LAB; CENTRAL AMERICAN                          D.C. No. 3:19-cv-04073-JST
RESOURCE CENTER,                               Northern District of California,
                                               San Francisco
               Plaintiffs-Appellees,
                                               ORDER
 v.

WILLIAM P. BARR, Attorney General;
UNITED STATES DEPARTMENT OF
JUSTICE; JAMES MCHENRY, Director of
the Executive Office for Immigration
Review, in his official capacity;
EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; KEVIN K.
MCALEENAN, Acting Secretary of
Homeland Security, in his official capacity;
U.S. DEPARTMENT OF HOMELAND
SECURITY; KENNETH T. CUCCINELLI,
Acting Director of the U.S. Citizenship and
Immigration Services, in his official
capacity; JOHN P. SANDERS, Acting
Commissioner of U.S. Customs and Border
Protection, in his official capacity; UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES; U.S.
CUSTOMS AND BORDER
PROTECTION; MATTHEW ALBENCE,
Acting Director of Immigration and
Customs Enforcement, in his official
capacity; IMMIGRATION AND
CUSTOMS ENFORCEMENT,
                Defendants-Appellants.

Before: TASHIMA, M. SMITH, and BENNETT, Circuit Judges.

      Appellants seek a stay pending appeal of the district court’s July 24, 2019

order preliminarily enjoining the Department of Justice and Department of

Homeland Security’s joint interim final rule, “Asylum Eligibility and Procedural

Modifications” (the “Rule”), 84 Fed. Reg. 33,829 (July 16, 2019).1

      The district court found that the Rule likely did not comply with the

Administrative Procedure Act’s (APA) notice-and-comment and 30-day grace

period requirements because Appellants did not adequately support invocation of

the “good cause” and “foreign affairs” exemptions under the APA. See 5 U.S.C.

§ 553(a)(1), (b)(1)(B), (d)(3); Buschmann v. Schweiker, 676 F.2d 352, 357 (9th

Cir. 1982) (good cause exemption “should be interpreted narrowly so that the

exception will not swallow the rule” (internal citations omitted)); Yassini v.

Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980) (foreign affairs exemption

“would become distended” if applied to immigration rules generally and requires

showing that ordinary public noticing would “provoke definitely undesirable


1
      The State of Arizona’s amicus brief in support of Appellants’ motion has
been filed. The Professors of Immigration Law’s motion for leave to file an
amicus brief in opposition to Appellants’ motion (Docket Entry No. 28) is granted,
and the brief is filed.


                                          2                                      19-16487
international consequences”). We conclude that Appellants have not made the

required “strong showing” that they are likely to succeed on the merits on this

issue. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).2

      Consequently, we deny the motion for stay pending appeal (Docket Entry

No. 3) insofar as the injunction applies within the Ninth Circuit.3

      We grant the motion for stay pending appeal insofar as the injunction applies

outside the Ninth Circuit, because the nationwide scope of the injunction is not




2
       Our finding that Appellants have not made a “strong showing” does not bind
the merits panel in reviewing this aspect of the merits, as that is not the standard
the merits panel will apply. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008).
3
       We do not assess Appellants’ remaining arguments as to likelihood of
success on the merits and do not reach the remaining Hilton factors. See Nken v.
Holder, 556 U.S. 418, 435 (2009) (stating that the likelihood of success on the
merits factor is one of the “most critical” and must be established before
considering the last two stay factors); cf. California v. Azar, 911 F.3d 558, 575 (9th
Cir. 2018) (“Likelihood of success on the merits is the most important factor; if a
movant fails to meet this threshold inquiry, we need not consider the other factors.”
(internal quotation marks omitted) (quoting Disney Enters., Inc. v. VidAngel, Inc.,
869 F.3d 848, 856 (9th Cir. 2017))).


                                          3                                    19-16487
supported by the record as it stands.4 Cf. City and County of San Francisco v.

Trump, 897 F.3d 1225, 1243–45 (9th Cir. 2018).5

      An injunction must be “narrowly tailored to remedy the specific harm

shown.” Id. at 1244 (quoting Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir.

1987)). We have upheld nationwide injunctions where such breadth was necessary

to remedy a plaintiff’s harm. See, e.g., id.; California v. Azar, 911 F.3d 558, 582

(9th Cir. 2018) (“Although there is no bar against nationwide relief in federal

district court . . . such broad relief must be necessary to give prevailing parties the


4
       The dissent, without citing any authority, argues that “it is [not] within a
motions panel’s province to parse the record for error at this stage” and accuses us
of “[going] beyond the recognized authority of a motions panel” by granting the
motion for a stay pending appeal insofar as the injunction applies outside the Ninth
Circuit. We have two responses.
       First, we did not have to “parse” the record for error. Appellants’ stay
motion specifically argues that the district court erred in imposing a nationwide
injunction. Moreover, the three sentences that the district court provided to
support the imposition of a nationwide injunction—none of which explains why it
believed a nationwide injunction was necessary in this case—make clear that it
failed to undertake the analysis necessary before granting such broad relief.
       Second, other motions panels of our court have reviewed the scope of
injunctive relief granted by district courts. See, e.g., E. Bay Sanctuary Covenant v.
Trump, No. 18-17274, 2018 WL 8807133, at *24 (9th Cir. Dec. 7, 2018); Hawaii
v. Trump, No. 17-17168, 2017 WL 5343014, at *1 (9th Cir. Nov. 13, 2017). We
think these decisions illustrate that it is indeed within our province—our duty,
even—to review whether the district court abused its discretion in granting a
nationwide injunction.
5
       The dissent criticizes our reliance on Trump, 897 F.3d 1225, because the
procedural posture in this case is different. We recognize this difference as we cite
Trump as an analogous case supporting our decision because, notwithstanding the
different procedural posture, the issue in that case—whether the scope of the
injunction was appropriate—is the same issue before us. See id. at 1244–45.

                                           4                                     19-16487
relief to which they are entitled.” (internal quotation marks and alterations omitted)

(quoting Bresgal, 843 F.2d at 1170–71)). These are, however, “exceptional cases.”

Trump, 897 F.3d at 1244. To permit such broad injunctions as a general rule,

without an articulated connection to a plaintiff’s particular harm, would

unnecessarily “stymie novel legal challenges and robust debate” arising in different

judicial districts. Id.; see also Azar, 911 F.3d at 583 (“The Supreme Court has

repeatedly emphasized that nationwide injunctions have detrimental consequences

to the development of law and deprive appellate courts of a wider range of

perspectives.”).

      Here, the district court failed to discuss whether a nationwide injunction is

necessary to remedy Plaintiffs’ alleged harm. Instead, in conclusory fashion, the

district court stated that nationwide relief is warranted simply because district

courts have the authority to impose such relief in some cases and because such

relief has been applied in the immigration context. The district court clearly erred

by failing to consider whether nationwide relief is necessary to remedy Plaintiffs’

alleged harms. And, based on the limited record before us, we do not believe a

nationwide injunction is justified.

      Our dissenting colleague believes that a nationwide injunction is appropriate

simply because this case presents a rule that applies nationwide. That view,

however, ignores our well-established rule that injunctive relief “must be tailored


                                          5                                     19-16487
to remedy the specific harm alleged.” Lamb-Weston, Inc. v. McCain Foods, Ltd.,

941 F.2d 970, 974 (9th Cir. 1991) (citations omitted). Indeed, were we to adopt

the dissent’s view, a nationwide injunction would result any time an enjoined

action has potential nationwide effects. Such an approach would turn broad

injunctions into the rule rather than the exception. Under our case law, however,

all injunctions—even ones involving national policies—must be “narrowly tailored

to remedy the specific harm shown.” Trump, 897 F.3d at 1244 (quoting Bresgal,

843 F.2d at 1170).

      We agree with our dissenting colleague that “time does not permit a full

exploration of the merits of the ‘nationwide’ issue.” But whereas he believes that

such a factor supports the granting of a nationwide injunction until a merits panel

can address the case, we reach precisely the opposite conclusion. “National

injunctions interfere with good decisionmaking by the federal judiciary.” Samuel

L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L.

Rev. 417, 461 (2017). They “deprive” other parties of “the right to litigate in other

forums.” Azar, 911 F.3d at 583. Based on the briefing and limited record before

us, and absent an explanation by the district court as to why a nationwide

injunction is necessary to remedy Plaintiffs’ alleged harm in this case, we must

grant the motion for stay pending appeal insofar as the injunction applies outside

the Ninth Circuit.


                                          6                                   19-16487
      Our dissenting colleague also argues that it is “perplexing” that the

government’s failure to demonstrate a strong showing of likelihood of success on

the merits “does not . . . require that a stay of the nationwide aspect of the

injunction [] be denied.” That contention misses the mark, however, by conflating

the merits of the government’s position with district court’s authority to issue a

nationwide injunction. Whether Appellants have made a strong showing of

likelihood of success on the merits entitling them to a stay of the preliminary

injunction is a separate question from whether the scope of the injunction is

appropriate. In Azar, for example, we affirmed the preliminary injunction because,

among other things, we found that the plaintiffs were likely to succeed on their

claim that the rules were invalid. 911 F.3d at 575–81. Despite our conclusion that

the rules were likely invalid, however, we also determined that the injunction’s

nationwide scope was not supported by the record. Id. at 584–85. Azar illustrates

that, beyond examining the merits of a party’s arguments, a district court must

separately analyze whether nationwide relief is “necessary to give prevailing

parties the relief to which they are entitled” before issuing such an injunction. Id.

at 582 (quoting Bresgal, 843 F.2d at 1170–71).




                                           7                                     19-16487
      Our approach—granting a more limited injunction—allows other litigants

wishing to challenge the Rule to do so. Indeed, several already have.6 Litigation

over the Rule’s lawfulness will promote “the development of the law and the

percolation of legal issues in the lower courts” and allow the Supreme Court, if it

chooses to address the Rule, to do so “[with] the benefit of additional viewpoints

from other lower federal courts and [with] a fully developed factual record.”

Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. REV. 1065,

1107–08 (2018).7

      In sum, our decision to partially grant the stay simply upholds the law of our

circuit by ensuring that injunctive relief is properly tailored to the alleged harm.8

      While this appeal proceeds, the district court retains jurisdiction to further

develop the record in support of a preliminary injunction extending beyond the


6
       As Appellants point out, hours before the district court ruled here, a District
of Columbia district court, presented with the same Rule, denied materially
identical relief to organizations similar to the Plaintiffs here. See CAIR v. Trump,
No. 1:19-CV-02117-TJK, 2019 WL 3436501 (D.D.C. July 24, 2019).
7
       Accord United States v. Mendoza, 464 U.S. 154, 160 (1984) (“[O]nly one
final adjudication would deprive this Court of the benefit it receives from
permitting several courts of appeals to explore a difficult question.”).
8
       Contrary to the dissent’s position, the fact that injunctive relief may
temporarily cause the Rule to be administered inconsistently in different locations
is not a sound reason for imposing relief that is broader than necessary. As we
explain above, our law requires that injunctive relief be narrowly tailored to
remedy the plaintiffs’ alleged harm, and it may only be broadened “if such breadth
is necessary to give prevailing parties the relief to which they are entitled.”
Bresgal, 843 F.2d at 1170–71 (emphasis added).


                                           8                                    19-16487
Ninth Circuit. Cf. Trump, 897 F.3d at 1245 (“Because the record is insufficiently

developed as to the question of the national scope of the injunction, we vacate the

injunction to the extent that it applies outside California and remand to the district

court for a more searching inquiry into whether this case justifies the breadth of the

injunction imposed.”).

      The opening brief is due September 3, 2019; the answering brief is due

October 1, 2019; and the optional reply is due within 21 days after service of the

answering brief. This case will be placed on a December 2019 argument calendar.




                                           9                                    19-16487
                                                                              FILED
East Bay Sanctuary Covenant v. Barr, No. 19-16487
                                                                              AUG 16 2019
TASHIMA, Circuit Judge, concurring in part and dissenting in part:        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


      I concur in the portion of the order denying the motion for stay pending

appeal [Dkt. 3] insofar as the injunction applies within the Ninth Circuit, but

dissent from the balance of the order.

      Acting as a motions panel, all we have before us is the government’s motion

for a stay. I do not believe that it is within a motions panel’s province to parse the

record for error at this stage, which is what the majority does in concluding that

“the nationwide scope of the injunction is not supported by the record as it stands.”

(Citation omitted.) But the majority then goes beyond the recognized authority of

a motions panel by concluding that “[t]he district court clearly erred by failing to

consider whether nationwide relief is necessary to remedy Plaintiffs’ alleged

harms,” and, on that basis “grant[s] the motion for stay pending appeal insofar as

the injunction applies outside the Ninth Circuit.” It then, in the penultimate

paragraph of the Order, in effect, remands the case to the district court for a partial

do-over:

             While this appeal proceeds, the district court retains jurisdiction to
      further develop the record in support of a preliminary injunction extending
      beyond the Ninth Circuit.1

      1
            The majority relies on City & County of San Francisco v. Trump, 897
F.3d 1225, 1245 (9th Cir. 2018), but the citation is completely inapposite. That
                                                                       (continued...)
But vacating and remanding it to the district court for a more searching inquiry into

whether this case justifies the breadth of the injunction is indubitably an action

within the province of a merits panel—not a motions panel.2

      At the same time, the order places the merits briefing (of this appeal) on an

expedited schedule for placement “on a December 2019 argument calendar.” What

issues are the parties expected to brief, assuming that parallel proceedings in the

district court are still ongoing? And if the district court completes its second-look

remand proceedings within the next few weeks or months and issues a modified

injunction, or issues the same nationwide injunction, but one which is supported by

supplemental findings of fact, should the parties seek to file supplemental briefs on

the newly-raised and newly-decided issues in this appeal to the merits panel

assigned to this appeal, or should a new notice of appeal be filed, giving rise to a


      1
        (...continued)
was an opinion by a merits panel charged with deciding the appeal, not a motions
panel charged with deciding a stay motion, and the merits panel did exactly what it
was charged with, i.e., it decided the appeal; it “AFFIRMED in part;VACATED in
pari; and REMANDED.” Id. We, as a motions panel, have no equivalent charge.
      2
              Because the issue has been decided, applying the clear error standard
of review, the injunction vacated and remanded to the district court, the merits
panel, presumably has been deprived of deciding this issue. The majority’s
assertion, in footnote 2, that its action “does not bind the merits panel,” is an empty
promise. Deciding the case on the merits, vacating and remanding the injunction is
not in accord with the dictates of Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008).

                                       Page -2-
new appeal? These are some of the new and difficult questions raised by the

majority’s split-decision.

      While time does not permit a full exploration of the merits of the

“nationwide” issue, some problems posed by the majority’s Ninth Circuit-only

injunction are apparent. Perhaps, the district court did not make detailed findings

in support of a nationwide injunction because the need for one in the circumstances

of this case is obvious. For starters, the joint interim final rule, “Asylum Eligibility

and Procedural Modifications,” will affect asylum applications across the breadth

of the southern border. Should asylum law be administered differently in Texas

than in California? These issues and problems illustrate why tinkering with the

merits on a limited stay motion record can be risky. And it is why such issues are

reserved for the more deliberate examination that a merits panel can give them.

      There is also a glaring inconsistency—a contradiction—in the majority’s

split-the-baby approach. If, as the majority and I agree, the government’s failure to

meet the first Hilton v. Braunskill, 481 U.S. 770, 776 (1987), factor —likelihood of

success on the merits, because of its failure to comply with the APA—means that

its stay motion with respect to the preliminary injunction’s application within the

Ninth Circuit fails, it is perplexing to me why that failure does not infect the

balance of its stay motion and require that a stay of the nationwide aspect of the

                                       Page -3-
injunction also be denied.3 The majority, in its rush to address the merits of the

nationwide aspect of the injunction, simply elides this contradiction.

       Because I would not peel off part of the preliminary injunction and remand

that portion to the district court, “[b]ecause the record is insufficiently developed

as to the question of the national scope of the injunction” (quoting San Francisco

v. Trump, 897 F.3d at 1245), while retaining jurisdiction over the remainder, I

dissent from the remand4 of the nationwide scope of the preliminary injunction to

the district court.

       I would simply deny the stay motion.




       3
             The majority’s answer to this point is to state that “Whether
Appellants have made a strong showing of likelihood of success on the merits
entitling them to a stay of the preliminary injunction is a separate question from
whether the scope of the injunction is appropriate.” But that doesn’t answer (or
even try to answer) my question of why the government’s failure to meet the
likelihood-of-success factor doesn’t doom its motion to stay the nationwide portion
of the injunction, as well as the California portion.
       4
              The Order does not use the word “remand,” but the majority does not
quarrel with the obvious inference from its statement that “the district court retains
jurisdiction to further develop the record in support of a preliminary injunction
extending beyond the Ninth Circuit,” is, in substance, a remand.

                                       Page -4-
