Case 1:20-cv-10645-LJL Document 32 Filed 12/26/20 Page 1 of 3
`U.S. Department of Justice
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`United States Attorney
`Southern District of New York
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`86 Chambers Street
`New York, New York 10007
`December 26, 2020
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`Via ECF
`Honorable Lewis J. Liman
`United States District Court
`Southern District of New York
`500 Pearl Street
`New York, New York 10007
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`Re:
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`Rural & Migrant Ministry et al. v. U.S. Environmental Protection Agency et al.,
`20 Civ. 10645 (LJL) [rel. 20 Civ. 10642 (LJL)]
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`Dear Judge Liman:
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`This Office represents defendants (together, “EPA”) in this matter. I write respectfully in
`response to the Court’s request at argument on December 23, 2020, for briefing on the
`application of the stay provision of the Administrative Procedure Act (“APA”), 5 U.S.C. § 705.
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`As stated in EPA’s brief, a request by plaintiffs for a court order to delay implementation
`of a rule under 5 U.S.C. § 705 is governed by the same standards as the issuance of a preliminary
`injunction. Dkt. No. 30 (“EPA Br.”) at 10 (citing New York v. U.S. Dep’t of Educ., — F. Supp.
`3d. —, No. 20 Civ. 4260 (JGK), 2020 WL 4581595, at *5 (S.D.N.Y. Aug. 9, 2020)). It has long
`been the law of the Second Circuit that stays of administrative action are governed by these
`requirements. Eastern Air Lines, Inc. v. Civil Aeronautics Board, 261 F.2d 830, 830 (2d Cir.
`1958);1 accord, e.g., Cronin v. U.S. Dep’t of Agric., 919 F.2d 439, 446 (7th Cir. 1990). That is,
`plaintiffs seeking a stay must show that they are likely to succeed on the merits, that they are
`likely to suffer irreparable harm in the absence of relief, that the balance of equities tip in their
`favor, and that a stay is in the public interest. Cf. Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).
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`The text of § 705 itself indicates that the Court’s analysis should be guided by the same
`types of equitable considerations that apply in the context of preliminary injunctive relief. The
`provision states that the Court may enter such an order only “to the extent necessary to prevent
`irreparable injury,” and “[o]n such conditions as may be required,” 5 U.S.C. § 705—requiring
`that any stay under § 705 must be narrowly tailored to the injury demonstrated by the plaintiffs,
`and subject to appropriate conditions to carry out this goal. Moreover, § 705 provides that a court
`“may issue all necessary and appropriate process to postpone the effective date of an agency
`action . . . pending conclusion of the review proceedings,” id. (emphasis added)—suggesting that
`the Court’s “equitable discretion” is at play. Cf. Winter, 555 U.S. at 32.
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`Second Circuit precedent also indicates that the same equitable principles and limitations
`apply to an order under 5 U.S.C. § 705 as apply to the issuance of preliminary injunctive relief.
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`1 Eastern Air Lines cited the contemporary codification of the APA’s stay provision, but that
`version was materially the same as the modern § 705. See 5 U.S.C. § 1009(d) (1958).
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`Case 1:20-cv-10645-LJL Document 32 Filed 12/26/20 Page 2 of 3
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`Page 2
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`Notably, in New York v. DHS, the district court issued a stay of the rule in question under § 705
`“for the same reasons it grant[ed] the injunction,” without further analysis specific to the stay.
`408 F. Supp. 3d 334, 353 (S.D.N.Y. 2019). On appeal, the Second Circuit—recognizing that the
`district court had issued both types of relief, 969 F.3d 42, 58 & n.14 (2d Cir. 2020)—narrowed
`the scope of the relief ordered by the district court, presumably under both provisions, see id. at
`88-89. Thus, relief under § 705, as with other types of injunctive relief, must be “limited to the
`inadequacy that produced the injury in fact that the plaintiff has established.” Gill v. Whitford,
`138 S. Ct. 1916, 1921 (2018) (quotation marks omitted).
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`Only a few courts appear to have addressed the precise question of whether relief under
`§ 705 carries with it the same equitable limitations as other injunctive relief. For instance, the
`court in Casa de Maryland, Inc. v. Wolf considered the question and concluded that—despite the
`statutory language of § 705—it was “bound to draw . . . preliminary relief, even in the APA
`context, narrowly, and to avoid issuance of nationwide injunctions absent the most extraordinary
`circumstances.” — F. Supp. 3d. —, No. 20 Civ. 2118, 2020 WL 5500165, at *32 (D. Md. Sept.
`11, 2020). Considering a recent Fourth Circuit decision that rejected the propriety of nationwide
`relief against a rule,2 the Casa court concluded that a § 705 stay should be limited to the
`plaintiffs in the case who had established standing, and also limited as to the specific “rule
`changes” as to which those plaintiffs had demonstrated standing. Id. at *32-34.
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`Another district court recently concluded that Ҥ 705 must be read to authorize relief
`from agency action for any person otherwise subject to the action, not just as to plaintiffs.”
`District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp. 3d 1, 48 (D.D.C. 2020). But even if
`§ 705 may be read to authorize broader relief, it should be granted only in limited circumstances,
`i.e., where Article III precepts allow and principles of equity require it. See New York, 969 F.3d
`at 87-88; cf. Hecht Co. v. Bowles, 321 U.S. 321, 328-30 (1944) (concluding that statutory text
`directing that an injunction “shall be granted” with respect to violation of a particular statute was
`insufficient to displace principles of “traditional equity practice”).
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`Plaintiffs have not established that nationwide and rule-wide relief is necessary to remedy
`the harms they allege. See EPA Br. at 29-30. If the Court concludes that some type of equitable
`relief is appropriate, that relief should be tailored to affect only (1) the harms that Plaintiffs can
`establish specifically as to themselves or their members, and (2) the portions of EPA’s 2020 Rule
`as to which Plaintiffs have shown a likelihood both of success on the merits and of irreparable
`harm absent equitable relief. See New York, 969 F.3d at 88; Eastern Air Lines, 261 F.2d at 830.
`Plaintiffs do not challenge several aspects of the rule, see EPA Br. at 9 n.2, which should not be
`enjoined or stayed, and the Court should also decline to enjoin all discrete portions of the Rule as
`to which Plaintiffs have failed to carry their burden.3 See Casa, 2020 WL 5500165, at *33-34.
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`2 The Fourth Circuit later decided to rehear the relevant case en banc. See CASA de Maryland,
`Inc. v. Trump, 971 F.3d 220, 258 (4th Cir.), reh’g en banc granted, 981 F.3d 311 (4th Cir. 2020).
`3 The 2020 Rule includes a severability provision providing that if “any individual provision or
`part of this rule is invalidated, [EPA] intends that this would not render the entire rule invalid,
`and that any individual provisions that can continue to operate will be left in place.” 2020 Rule,
`85 Fed. Reg. 68,760, 68,779 (Oct. 30, 2020).
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`Case 1:20-cv-10645-LJL Document 32 Filed 12/26/20 Page 3 of 3
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`Thank you for your consideration of this matter.
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`Respectfully submitted,
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`AUDREY STRAUSS
`Acting United States Attorney for the
`Southern District of New York
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`By:
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` /s/ Samuel Dolinger
`SAMUEL DOLINGER
`Assistant United States Attorney
`86 Chambers Street, 3rd Floor
`New York, New York 10007
`Tel.: (212) 637-2677
`E-mail: samuel.dolinger@usdoj.gov
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`cc: Counsel of record (via ECF)
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