Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” After a three-year hiatus, we’re back! Let’s get straight to business.

Each of the following statements is from a different opinion by Judge Lawrence VanDyke in the same controversy:

• “My colleagues, who made all that precedent, should not be able to now just elide it … Something other than the law is at work here.”
• “[I]t looks like the administration and its frenemies on the other side of this case are colluding to avoid playing their politically fraught game during an election year.”
• “[The majority] continues a troubling trend by our court of denying [state] intervention whenever it might upset a possible collusive settlement resulting in a favored policy.”

Over the last 10 months, Judge VanDyke has written three dissents in  East Bay Sanctuary Covenant v. Biden, and the case hasn’t yet reached the substantive merits at the Ninth Circuit. His persistent and multifaceted criticisms perhaps lack collegiality, but does he have a point? To help you decide for yourself, we’re going to dive into this controversy. 

First, the backstory. In May of 2023, the Biden administration promulgated a major immigration policy, the Circumvention of Lawful Pathways Rule. Setting aside the rule’s details, the important point for this post is that rule repackaged two Trump-era policies. Progressives called it the “asylum ban.”

Public interest law firms challenged the rule in the U.S. District Court for the Northern District of California. Shortly thereafter, in late July, Judge Jon Tigar vacated the measure.

The government appealed to the Ninth Circuit and concomitantly moved to stay Judge Tigar’s order pending appeal.

On August 2nd, a split three-judge panel granted the government’s request and stayed the lower court’s order. Judges William Fletcher and Richard Paez formed the majority, although they provided no reasoning, nor a defense to the criticisms set forth in a dissent penned by Judge VanDyke. In this latter regard, the majority’s silence is remarkable, as their dissenting colleague effectively accused them of flip-flopping on immigration law, depending on who is in the White House:

[O]ne or both of my colleagues in today’s majority were directly involved in eliminating at least four different Trump administration immigration rules. … The Biden administration’s [rule] before us in this appeal is not meaningfully different from the prior administration’s rules that were backhanded by my two colleagues. … Relying on … our prior decisions … Judge Tigar concluded that this new rule is indistinguishable from those rules in any way that matters. He’s right. … Judge Tigar had no choice but to vacate [Biden’s “asylum ban”] for the reasons that … my colleagues … established as binding precedent during the Trump administration. I’d love to join [the majority] … But unlike my colleagues, I cannot so easily ignore our circuit’s binding precedent.

The panel conducted oral arguments on the underlying appeal in November of 2023.

However, on February 5, 2024, the parties moved for a stay of the appellate proceedings to facilitate settlement discussions.

On February 21st, the same majority—Judges Fletcher and Paez—granted the parties’ motion and stayed the proceedings. Again, the majority did not elaborate on their thinking.

Again, Judge VanDyke dissented. He was suspicious of the government’s “abrupt about-face.” He questioned why the government “spent the better part of a year vigorously defending” the Lawful Pathways Rule and then, “out of the blue,” sought a settlement. According to the dissent, this sudden change “makes no sense at all as a legal matter,” and he suspected the government was “hiding the real reason it wants to hold this case in abeyance.” The dissent proceeded to posit several political “possibilities” that could be the actual-yet-unarticulated basis for the government’s request. “Whatever the parties’ real motivations are,” he concluded, “they haven’t provided us with a legally sufficient basis for their sudden change of course.”

Soon after the start of the settlement negotiations, on March 7th, several conservative states (Alabama, Kansas, Georgia, Louisiana, and West Virginia) sought to intervene so as to participate in the talks and possibly object to any settlement. The parties filed briefs in opposition.

Late last month, the same majority (Judges Fletcher & Paez) denied the states’ motion to intervene. Unlike the prior two instances discussed above, the majority provided some explanation for this order. Specifically, the majority applied (part of) the four-factor framework employed by the circuit in considering a party’s request for intervention of right under FRCP Rule 24(a)(2):

(1) the motion must be timely; (2) the applicant must claim a “significantly protectable interest relating to the property or transaction which is the subject of the action;” (3) “the disposition of the action may as a practical matter impair or impede [the applicant’s] ability to protect that interest;” and (4) the applicant’s interest “must be inadequately represented by the parties to the action.”

First, the majority concluded that the states’ motion was untimely because it originated at the appellate stage. Second, the majority determined that the States did not have a “significant protectable interest” at stake because any effect on the state of increased immigration due to a potential rollback of the Lawful Pathways Rule—such as increased state spending or a dilution of their population-based political representation—was too “attenuated and speculative.” And “because that failure alone is a sufficient ground to deny intervention as of right,” the majority did not reach the remaining factors. The majority further denied permissive intervention “for similar reasons.”

Again, Judge VanDyke dissented. By his reckoning, each of the four factors for intervention clearly militated in favor of the states:

The States’ motion here was timely because they acted swiftly after we granted the parties’ unexpected motion to stay. Their interests would clearly be harmed by a settlement that negates the effect of the Rule because they would be forced to bear the additional costs of illegal immigration into their territories. And the federal government’s openness to settlement discussions after months of aggressively defending the Rule evinces a change in position such that it no longer adequately represents the States’ interests.

This isn’t the first time that Judge VanDyke has objected to the government’s “collusive capitulation.” In a 2021 dissent to an order in City and County of San Francisco v. USCIS, he contended that the parties were engaged in “rulemaking-by-collusive-acquiescence.” Chief Justice John Roberts subsequently cited this phrase in concurring with the dismissal of a writ of certiorari as improvidently granted.

What do you think? For my part, I’m struck by how these dissents go unanswered by the majority. In East Bay Sanctuary Covenant v. Biden, Judge VanDyke has made a series of alarming contentions about how politics, and not the law, is shaping outcomes in immigration cases at the Ninth Circuit. Faced with these claims, I’d have thought his colleagues would be highly motivated to give competing narratives.

Judge O’Scannlain Takes Aim at Agency Flip-Flopping

On May 6th, the Ninth Circuit denied en banc review and issued amended opinions in Valley Hospital Medical Center, Inc. v. NLRB. Judge Diarmuid F. O’Scannlain authored the three-judge panel’s unanimous opinion, which upheld the NLRB’s action. But he also authored a Special Concurrence. In it, he sought “to highlight a troubling trend” of NLRB and other agencies “seesawing back and forth between statutory interpretations depending on its political composition.” He approvingly quotes Prof. Richard Pierce: “[I]t seems wrong in some important sense to acquiesce in a legal regime that allows myriad changes in the meaning of legal terms every time a President of one party replaces a President of the other party.” This is an important opinion. (As a related aside, I discussed this matter some years ago on this blog).