On Tuesday, September 29, 2020, Federal District Court Judge Jeffrey White issued an order 2020-09-29 Order Granting dckt 98_0 enjoining US Citizenship and Immigration Services (“USCIS”) and the Department of Homeland Security (“DHS”) from implementing proposed increases in filing fees, and the addition of a controversial filing fee for asylum, scheduled to become effective on October 2, 2020.  Finding that the succession rules had been improperly modified with the departure of former DHS Secretary Kirstjen M. Nielsen in April 2019, Judge White became the second judge this month to preliminarily enjoin a regulation promulgated under the authority of the acting officials.  The substantial increases in fees were proposed by “Acting DHS Secretary,” Kevin K. McAleenan, and published as a final rule under the purported authority of “Acting DHS Secretary,” Chad Wolf, and “Senior Official Performing the Duties of Deputy Secretary of Homeland Security, and USCIS,” Kenneth T. Cuccinelli.  The Appointments Clause of the Constitution authorizes the President to nominate “Officers of the United States,” such as DHS Secretary.  The President’s authority is balanced by the Senate’s advice and consent power.  While Secretary Nielson resigned her position in April 2019, the President’s nominee to replace her, Mr. Wolf, was not submitted for Senate confirmation until September 10, 2020.

The plaintiffs are eight non-profit organizations that provide a variety of “services benefiting low-income applicants for immigration benefits  Plaintiffs allege that Messrs. Wolf and McAleenan had been appointed to their “acting” positions in violation of the Homeland Security Act (“HSA”) and the time limitations on service contained in the Federal Vacancies Reform Act (“FVRA”).  Under the FVRA, the “first assistant” to the vacant office “shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346[.]” 5 U.S.C. §3345(a)(2)(3).  The temporary appointee must, for example, have served in the first assistant position for the 365 day period preceding the vacancy. The temporary appointment is limited to 210 days from the date of the vacancy; or once a nomination is submitted, for the period the nomination is pending with the Senate.  In December 2016, Congress amended the HSA to provide that the Secretary of Management “shall be the first assistant to the Deputy Secretary for purposes of the FVRA.

Citing a decision earlier this month by US District Court Judge, Paula Xinis, (D. MD) and following the same logic, Judge White found that Plaintiffs are likely to prevail on their claim that the succession orders executed by Secretary Nielsen at the time of her resignation were ineffective for the appointment of Mr. McAleenan, as acting Secretary, and consequently that Mr. McAleenan’s effort to position Mr. Wolf as acting Secretary was similarly unavailing.

Assuming that Mr. Wolf is confirmed as Secretary by the Senate, he should be in a position to issue the new fee rule, but DHS will likely have to begin the process anew at the Notice of Proposed Rulemaking stage, as Mr. McAleenan lacked the authority at the time he signed off on the proposed rule.