Philadelphia Yearly Meeting of the Religious Society of Friends et al v. U.S. Department of Homeland Security et al

OCR transcription for search; preserved printed pages are authoritative

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UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

PHILADELPHIA YEARLY MEETING OF
THE RELIGIOUS SOCIETY OF FRIENDS,
NEW ENGLAND YEARLY MEETING OF
THE RELIGIOUS SOCIETY OF FRIENDS,
BALTIMORE YEARLY MEETING OF THE
RELIGIOUS SOCIETY OF FRIENDS, INC..,
ADELPHI FRIENDS MEETING OF THE
RELIGIOUS SOCIETY OF FRIENDS,
RICHMOND FRIENDS MEETING OF THE
RELIGIOUS SOCIETY OF FRIENDS,

NEW YORK YEARLY MEETING OF THE
RELIGIOUS SOCIETY OF FRIENDS, INC.,
COOPERATIVE BAPTIST FELLOWSHIP
an TEMPLE SACRAMENTO. Civil Action No. 25-0243-TDC

Plaintiffs,
Vv.

U.S. DEPARTMENT OF
HOMELAND SECURITY and
KRISTI NOEM,

in her official capacity as
Secretary of Homeland Security,

Defendants.

MEMORANDUM OPINION
Plaintiffs Philadelphia Yearly Meeting of the Religious Society of Friends, New England
Yearly Meeting of the Religious Society of Friends, Baltimore Yearly Meeting of the Religious
Society of Friends, Inc., Adelphi Friends Meeting of the Religious Society of Friends, Richmond
Friends Meeting of the Religious Society of Friends, New York Yearly Meeting of the Religious

Society of Friends, Inc., Cooperative Baptist Fellowship, and Sikh Temple Sacramento have filed

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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this civil action against Defendants the United States Department of Homeland Security and
Secretary of Homeland Security Kristi Noem (collectively, “DHS’) in which they challenge
DHS’s January 2025 decision to rescind a longstanding policy which significantly limited the
execution of immigration enforcement actions in or near places of worship and other protected
areas (collectively, “protected areas”) and replace it with a new policy which leaves the decision
on whether to conduct such enforcement actions to the discretion of individual immigration
officers.

Specifically, Plaintiffs have asserted claims under the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C. §§ 2000bb—2000bb-4 (Count 1), the First Amendment to the United States
Constitution, U.S. Const. amend. I (Count 2), and the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 551-559, 701-706 (Counts 3-6). DHS has filed a Partial Motion to Dismiss in which
it seeks dismissal of Counts 3—6. After the Motion was fully briefed, the Court held a hearing on
the Motion on December 12, 2025. For the reasons set forth below, the Motion will be GRANTED
IN PART and DENIED IN PART.

BACKGROUND

On January 20, 2025, Acting Secretary of Homeland Security Benjamine Huffman issued
a memorandum entitled “Enforcement Actions in or Near Protected Areas” (the “Huffman
Memorandum” or the “2025 Policy”), which rescinded an October 27, 2021 memorandum issued
by then-Secretary of Homeland Security Alejandro Mayorkas entitled “Guidelines for
Enforcement Actions in or Near Protected Areas” (the “Mayorkas Memorandum” or the “2021
Policy”). In line with longstanding DHS policy, the 2021 Policy had instituted internal restrictions
and safeguards that significantly limited immigration enforcement activity in or near protected

areas. The 2025 Policy replaced the 2021 Policy with a general policy of permitting immigration

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officers to exercise their discretion and common sense in determining whether to engage in
enforcement actions in or near a protected area.

On February 24, 2025, after Plaintiffs filed the present action and a Motion for a Temporary
Restraining Order and Preliminary Injunction as to Counts | and 2, the Court issued a
Memorandum Opinion in which it granted a preliminary injunction relating to Counts | and 2 so
as to “bar application of the 2025 Policy, and to return to the 2021 Policy, as to Plaintiffs only.”
See Philadelphia Yearly Meeting of the Religious Soc’y of Friends v. U.S. Dep’t of Homeland
Security (“Philadelphia Yearly I’), 767 F. Supp. 3d 293, 336 (D. Md. 2025). The legal
background, relevant facts, and early procedural history of this case are set forth in the Court’s
Memorandum Opinion, which is incorporated by reference. See id. at 303-311.

In that motion, Plaintiffs sought no relief as to the APA claims in counts 3, 4, 5, and 6
(collectively, “the APA claims”). In Count 3, Plaintiffs assert that DHS’s adoption of the 2025
Policy through the issuance of the Huffman Memorandum was arbitrary and capricious, in
violation of the APA, 5 U.S.C. § 706(2)(A), on the grounds that DHS rescinded the 2021 Policy
without providing reasoning, considering alternative actions, or addressing Plaintiffs’ reliance
interests. In Count 4, Plaintiffs assert that the 2025 Policy is contrary to a constitutional right in
violation of the APA, 5 U.S.C. § 706(2)(B), on the grounds that where the 2025 Policy lacks the
restrictions and safeguards set forth in the 2021 Policy, the 2025 Policy violates their right to
freedom of expressive association under the First Amendment to the Constitution. In Count 5,
Plaintiffs assert that the 2025 Policy is unlawful as “in excess of statutory jurisdiction, authority,
or limitations” in violation of the APA, 5 U.S.C. § 706(2)(C), on the grounds that the 2025 Policy
violates RFRA by placing a substantial burden on their exercise of religion. In Count 6, Plaintiffs

assert that DHS’s rescission of the 2021 Policy without having first engaged in notice-and-

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comment rulemaking violated the APA by failing to observe procedures required by law. See
§ 706(2)(D).

DHS has now filed a Partial Motion to Dismiss in which it seeks dismissal of the APA
claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)
and for failure to state a claim pursuant to Rule 12(b)(6).

DISCUSSION

In the Motion, DHS argues that the APA claims should be dismissed for lack of subject
matter jurisdiction because the issuance of the 2025 Policy through the Huffman Memorandum
was not a final agency action and was committed to agency discretion by law, such that it is not
subject to judicial review under the APA. Further, DHS argues that Count 6 should be dismissed
for failure to state a claim because the 2025 Policy is a general statement of policy that is exempt
from the APA’s notice-and-comment rulemaking requirement.
I, Legal Standards

It is the plaintiff's burden to show that subject matter jurisdiction exists. Evans v. B.F.
Perkins Co., Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). Federal Rule of Civil
Procedure 12(b)(1) allows a defendant to move for dismissal when it believes that the plaintiff has
failed to make that showing. When a defendant asserts that the plaintiff has failed to allege facts
sufficient to establish subject matter jurisdiction, the allegations in the complaint are assumed to
be true under the same standard as in a Rule 12(b)(6) motion, and “the motion must be denied if
the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United States,
585 F.3d 187, 192 (4th Cir. 2009). When a defendant asserts that facts outside of the complaint
deprive the court of jurisdiction, the Court “may consider evidence outside the pleadings without

converting the proceeding to one for summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d

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392, 398 (4th Cir. 2004); Kerns, 585 F.3d at 192. The court should grant a Rule 12(b)(1) motion
based on a factual challenge to subject matter jurisdiction “only if the material jurisdictional facts
are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans, 166 F.3d
at 647 (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765,
768 (4th Cir. 1991)).

To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A claim is plausible when the facts pleaded allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” /d Legal
conclusions or conclusory statements do not suffice. Jd. The Court must examine the complaint
as a whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994);
Lambeth v. Bd. of Comm'rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005).

Il. Final Agency Action

DHS first argues that the APA claims should be dismissed because the issuance of the 2025
Policy did not constitute a final agency action for purposes of the APA. Under the APA, a “final
agency action for which there is no other adequate remedy in a court [is] subject to judicial review.”
5 U.S.C. § 704. Because the APA waives sovereign immunity for challenges to such actions, a
district court lacks subject matter jurisdiction to review steps taken by a federal agency that do not
qualify as a “final agency action.” See Jake’s Fireworks Inc. v. U.S. Consumer Prod. Safety
Comm'n, 105 F.4th 627, 631 (4th Cir. 2024).

The APA defines “agency action” to include “the whole or a part of an agency rule, order,

license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).

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Two conditions must be satisfied for an agency action to be deemed “final”: (1) “the action must
mark the ‘consummation’ of the agency’s decisionmaking process—it must not be of a merely
tentative or interlocutory nature”; and (2) “the action must be one by which ‘rights or obligations
have been determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S.
154, 177-78 (1997) (citations omitted). Notably, under the APA, there is a “‘strong presumption’
in favor of judicial review of agency action.” CASA de Md. v. U.S. Dep’t of Homeland Security,
924 F.3d 684, 697 (4th Cir. 2019) (quoting Speed Mining, Inc. v. Fed. Mine Safety & Health
Review Comm'n, 528 F.3d 310, 316 (4th Cir. 2008)). Accordingly, the United States Supreme
Court has instructed that courts take a “‘pragmatic’ approach” to the finality inquiry. See U.S.
Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 599 (2016) (quoting Abbott Laboratories v.
Gardner, 387 U.S. 136, 149 (1967)).

DHS does not dispute that the 2025 Policy meets the first prong of Bennett because it
marked the consummation of the agency’s decisionmaking process. Rather, DHS argues that the
2025 Policy is not an action that has “direct and appreciable legal consequences” and thus does
not meet Bennett’s second prong. Mot. Dismiss at 12, ECF No. 78-1. Specifically, DHS argues
that neither the 2021 Policy nor the 2025 Policy imposed any “obligations, prohibitions,
restrictions” on Plaintiffs or had any “direct regulatory effect” on them. /d. at 12-13.

Even if the 2025 Policy had no direct impact on the rights or obligations of Plaintiffs or
other members of the public, the second prong can be satisfied if the agency action determines an
agency’s own “rights or obligations” or those of its personnel. See Bennett, 520 U.S. at 178. This
was the case in Bennett, in which the Supreme Court found that a Biological Opinion issued by
the United States Fish and Wildlife Service, a component agency of the United States Department

of the Interior (“Interior”), was a final agency action because it placed obligations on the Bureau

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of Reclamation, another Interior component agency, in relation to its operation of an irrigation
project. See id. at 157, 159, 177-78. Specifically, the Biological Opinion required the Bureau of
Reclamation to comply with certain “reasonable and prudent alternatives,” consisting of
maintaining certain minimum water levels at certain reservoirs, in order to be permitted to “take”
fish designated as an endangered species. /d. at 158-59, 169-70. Although the United States
Court of Appeals for the Fourth Circuit has not directly addressed whether an agency action meets
the second prong of Bennett if it modifies an agency’s rights or obligations rather than those of
members of the public, other circuits, as well as district courts, have so found. See Texas v. EEOC,
933 F.3d 433, 441 (Sth Cir. 2019) (“[A]n agency’s guidance documents binding it and its staff to
a legal position produce legal consequences or determine rights and obligations, thus meeting the
second prong of Bennett.”); Prutehi Litekyan: Save Ritidian v. U.S. Dep't of the Air Force, 128
F.4th 1089, 1111-12 (9th Cir. 2025) (finding that the Air Force’s submission of a renewal permit
imposed obligations on itself and thus was a final agency action); Doe v. Tenenbaum, 127 F. Supp.
3d 426, 461 (D. Md. 2012) (“The second prong does not require that the agency action confer
rights or obligations on the plaintiff... . [A]n equally apposite question is whether the [agency’s]
decision .. . determined its own rights or obligations.”).

Further, “where agency action withdraws an entity’s previously-held discretion” in an area
subject to its coverage, it effectively binds the entity and thus constitutes a final agency action.
Texas, 933 F.3d at 442 (internal citations omitted). In Texas, the court reviewed a United States
Equal Opportunity Employment Commission (“EEOC”) guidance document entitled
“Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII [of
the Civil Rights Act of 1964]” that stated, in part, the agency’s views that Title VII disparate impact

liability could follow from an employer’s policy of screening out applicants with criminal records

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if it is not consistent with business necessity, warned that an employer would need to show how
such a policy is specifically linked to the duties of the position, and presented circumstances that
would “consistently” meet this requirement. /d. at 437-38. The court held that even though the
EEOC lacked the authority to promulgate substantive rules and could not bring civil actions against
state employers, the issuance of this guidance was a final agency action in part because it bound
EEOC staff to following a particular “analytical method” in conducting investigations relating to
this issue and “limit[ed] discretion respecting the use of certain evidence” by “leav[ing] no room
for EEOC staff” to decline to issue referrals under certain factual scenarios. /d. at 439, 443.
Similarly, both the 2021 Policy and the 2025 Policy were final agency actions in that they
redetermined the rights and obligations of DHS personnel, specifically immigration officers
considering whether to conduct immigration enforcement actions at or near protected areas. In
Philadelphia Yearly 1, the Court detailed the restrictions placed on immigration officers under the
2021 Policy, including the requirement that immigration enforcement actions were not to be taken
at places of worship and other protected areas “to the fullest extent possible,” subject only to
exceptions in “limited circumstances” consisting of six specific scenarios and other comparable
circumstances. Philadelphia Yearly I, 767 F. Supp. 3d at 318. The 2021 Policy specifically
referred to this restriction as an “obligation” that applied “at all times.” Mayorkas Mem. at 3, Am.
Compl. Ex. 20, ECF No. 28-21. In addition, the 2021 Policy imposed a requirement that if an
exception to the general rule appeared warranted, immigration officers “must seek prior approval
from their Agency’s headquarters . . . before taking an enforcement action in or near a protected
area,” unless there were exigent circumstances, in which case the agency headquarters “should be
consulted post-action.” Jd. at 4. The 2021 Policy further stated that “[t]o the fullest extent possible,

any enforcement action in or near a protected area should be taken in a non-public area, outside of

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public view, and be otherwise conducted to eliminate or at least minimize the chance that the
enforcement action will restrain people from accessing the protected area.” Jd.

These provisions illustrate that the 2021 Policy determined the rights and obligations of
DHS personnel by placing specific restrictions on their ability to conduct immigration enforcement
actions at or near protected areas. See Texas, 933 F.3d at 441-44. Although DHS argues that the
restrictions were not obligations because the 2021 Policy noted that immigration officers needed
to engage in the “exercise of judgment” and that it did “not limit an agency’s or employee’s
statutory authority,” Mot. Dismiss at 14, this argument fails for two reasons. First, the 2021 Policy
referenced the application of judgment in relation to specific decisions, including assessing
whether a particular location was a protected area, whether an enforcement action was to occur
“near” such a location, and whether in a particular situation there were circumstances other than
one of the six identified exceptions that warranted action contrary to the general restriction on such
actions. Mayorkas Mem. at 3. The fact that the 2021 Policy required agency personnel to engage
in some interpretation of its terms does not change the mandatory nature of its provisions. Indeed,
DHS personnel who violated the 2021 Policy were likely subject to discipline: as noted in the
Amended Complaint, while the 2021 Policy was in effect, DHS advised the public through its
website that “[i]f DHS officers and agents take enforcement actions that are believed to be in
violation of the protected areas policy, a complaint may be filed” and provided information how
to do so. See Immigr. & Customs Enf't, Protected Areas Enforcement Actions at 5, Am. Compl.
Ex. 22, ECF No. 28-23. Second, to the extent that the 2021 Policy could be construed as not
mandatory because it did not absolutely bar all enforcement actions at protected areas, it still
determined obligations of DHS personnel because, at a minimum, it placed significant limits on

immigration officers’ exercise of discretion. See Texas, 933 F. 3d at 443.

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The Court therefore finds that the 2021 Policy was a final agency action. Upon such a
finding, as DHS acknowledged at the hearing on the Motion, the adoption of the 2025 Policy
through the issuance of the Huffman Memorandum was necessarily also a final agency action
because it materially redetermined the rights and obligations of immigration officers by removing
the restrictions and limitations of the 2021 Policy. DHS acknowledged this change when its
spokesman, upon the issuance of Huffman Memorandum, characterized the 2021 Policy as
“thwart[ing] law enforcement” and “[tying] the hands of our brave law enforcement.” 1/21/2025
DHS Statement at 1, Am. Compl. Ex. 30, ECF No. 28-31. Such contemporaneous statements
show that DHS understood that the 2021 Policy imposed obligations on immigration officers, and
that the purpose of the 2025 Policy was to redetermine those obligations.

The Court also finds that the adoption of the 2025 Policy was a final agency action because
it withdrew the effective safe harbor provided in the 2021 Policy. An agency action that withdraws
a regulatory “safe harbor” meets the second prong of Bennett. See Hawkes, 578 U.S. at 599
(finding that a “denial of [a] safe harbor” meets the second prong of Bennett and concluding that
the issuance of a negative “jurisdictional determination” in which the U.S. Army Corps of
Engineers determined that a property did not contain waters subject to the Clean Water Act
(“CWA”) was a final agency action in part because it bound two federal agencies for purposes of
litigation and thus prevented them from bringing a CWA civil enforcement action against the
property owner). Courts have applied this theory to satisfy the second prong of Bennett even where
an agency action did not provide an absolute safe harbor to the plaintiffs. See Frozen Food Express
v. United States, 351 U.S. 40, 44-45 (1956); Texas, 933 F.3d at 445; Mayor & City Council of
Baltimore v. Trump, 416 F. Supp. 3d 452, 500-01 (D. Md. 2019) (rejecting the argument that the

Foreign Affairs Manual’s rule barring consular officers from considering a visa applicant’s receipt

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of non-cash benefits in determining whether a noncitizen could be excluded from the United States
as a “public charge” was not effectively a safe harbor because it did not provide applicants with
an assurance they would not be found to be a public charge on some other basis, where the rule
narrowed the grounds on which such a determination could be made). In Frozen Food Express,
the Supreme Court held that an “order” issued by the Interstate Commerce Commission (“ICC”)
listing agricultural commodities the transporting of which was deemed to provide an exemption to
motor carriers from a requirement to obtain a certificate or permit to operate was a final agency
action, even though it was only “declaratory” and itself had no authority other than to give notice
of the ICC’s interpretation. Jd. at 44-45; see Hawkes, 578 U.S. at 599 (discussing Frozen Food
Express). In Texas, the court, assessing finality “flexibly and pragmatically,” found that EEOC
guidance that it “believes that certain practices will consistently meet statutory requirements”
effectively provided a safe harbor for purposes of the second prong even though it did not actually
guarantee that no civil enforcement action would be brought against an employer which followed
those practices. Texas, 933 F.3d at 445-46 disvaruiall citations omitted).

Here, under a pragmatic view of the issue of finality, the 2021 Policy created, in practice,
a comparable safe harbor by barring immigration enforcement actions at or near places of worship
except in limited circumstances consisting of six identified exceptions and other presumably
comparable circumstances. It therefore effectively provided to places of worship an assurance that
they would not be subjected to an intrusion related to an immigration enforcement action outside
of those limited exceptions. In turn, when the 2025 Policy rescinded the “meaningfully narrower”
2021 Policy, it eliminated that effective safe harbor because, as a result of the replacement of the
2021 Policy’s restrictions with a broad policy that the decision to conduct immigration

enforcement actions at protected areas was limited only by the individual immigration officer’s

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discretion, “the range of scenarios under which an immigration enforcement action could occur at
a place of worship” was effectively expanded. See Philadelphia Yearly I, 767 F. Supp. 3d at 318.
Thus, the 2025 Policy determined rights and obligations for purposes of the second prong in this
way as well.

Flue-Cured Tobacco Cooperative Stabilization Corp. v. Environmental Protection Agency
(“Flue-Cured’), 313 F.3d 852 (4th Cir. 2002), does not alter the Court’s conclusion that the 2025
Policy constitutes a reviewable final agency action. //ue-Cured involved a challenge to a report
issued by the United States Environmental Protection Agency that classified secondhand tobacco
smoke as a known human carcinogen. /d. at 854. In finding that the report was not a final agency
action subject to review under the APA, the court relied significantly on the fact that the report
was prepared pursuant to a research program established by the Radon Gas and Indoor Air Quality
Act (“Radon Act”), Pub. L. No. 99-499, §§ 401-405, 100 Stat. 1758, which explicitly prohibited
any such reports from having any regulatory effect. /d. at 858. Further, the court noted that to the
extent that other agencies had “relied on the Report in imposing tobacco related restrictions,” such
restrictions were “the product of independent agency decisionmaking,” as “other federal agencies
[were] free to embrace or disregard the Report which is advisory and does not trigger the
mandatory creation of legal rules, rights, or responsibilities.” /d. at 860. Thus, the court held that
the report was akin to advisory reports provided to final decisionmakers that have been deemed
not to constitute final agency actions. /d. (citing Franklin v. Massachusetts, 505 U.S. 788, 797—
98 (1992), and Dalton v. Specter, 511 U.S. 462, 469 (1994)). As discussed above, the 2021 Policy
imposed actual obligations on immigration officers relating to how they could or could not conduct
immigration enforcement actions at protected areas, and unlike for the report in Flue-Cured,

immigration officers were not “free to embrace or disregard” the terms of the 2021 Policy. /d.

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Finally, DHS’s reliance on the language in both the 2021 Policy and the 2025 Policy stating
that the policy is “not intended to, does not, and may not be relied upon to create any right or
benefit, substantive or procedural, enforceable at law by any party,” e.g., Mayorkas Mem. at 5, is
misplaced because such boilerplate language is not dispositive if the action, in fact, determines
rights or obligations. See Appalachian Power Co. v. Env’t Prot. Agency, 208 F.3d 1015, 1022-23
(D.C. Cir. 2000) (finding a final agency action despite language in an EPA guidance document
stating that the policies in the document were “intended solely as guidance, do not represent final
Agency action, and cannot be relied upon to create any rights enforceable by any party,” because
the guidance in practice had legal consequences).

Because the 2025 Policy was the consummation of agency action, redetermined the rights
and obligations of immigration officers, and withdrew a safe harbor set forth in the 2021 Policy,
the Court finds that it was a final agency action.

III. Committed to Agency Discretion by Law

DHS further argues that Plaintiffs’ APA claims are unreviewable because the 2025 Policy
is committed to agency discretion by law. The APA provides that judicial review of an agency
action is not available where the “agency action is committed to agency discretion by law.” 5
U.S.C. § 701(a)(2). The Supreme Court, however, has read this exception to judicial review “quite
narrowly.” Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018). It applies
only “in those rare circumstances where the relevant statute ‘is drawn so that a court would have
no meaningful standard against which to judge the agency’s exercise of discretion.’” Lincoln v.
Vigil, 508 U.S. 182, 191 (1993) (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). In such
a circumstance, a court would have “no law to apply.” Heckler v. Chaney, 470 U.S. 821, 830

(1985) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)).

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The Supreme Court found one such circumstance in Heckler, in which it held that the
United States Food and Drug Administration’s decision to exercise its discretion not to institute
an enforcement action against certain states for allegedly violating the Federal Food, Drug, and
Cosmetic Act, 21 U.S.C. § 301, based on the potential use of drugs in executions of the plaintiffs
by lethal injection was presumptively unreviewable under the APA. Heckler, 470 U.S. at 823,
831-32. Such decisions are generally committed to the agency’s “absolute discretion” and are
“unsuitabl[e]” for judicial review because they often involve a complicated balancing of factors
within the agency’s expertise, they do not infringe on liberty or property interests, and the
nonreviewability of such decisions resembles the strong discretion given to prosecutors on whether
to secure an indictment. /d. at 831-32.

Citing Heckler, DHS argues that the 2025 Policy is not reviewable because it involves
discretionary policy choices about how best to enforce immigration law which are committed to
agency discretion. However, the Fourth Circuit rejected a similar argument in CASA de Maryland
v. U.S. Department of Homeland Security, 924 F.3d 684 (4th Cir. 2019), in which the Government
argued that a memorandum rescinding the Deferred Action for Childhood Arrivals (“DACA”)
policy (“the DACA Rescission Memorandum”) was not reviewable under Heckler because the
action was based on the broad discretion exercised by immigration officials and was therefore
committed to agency discretion by law. See id. at 697. The court disagreed and found that the

393

DACA Rescission Memorandum was “not a ‘[Heckler]-type enforcement action’” because it did
not involve the exercise of enforcement discretion in an individual case and instead was the
rescission of a “general enforcement policy” in that it did not involve questions of whether there

was a specific violation of the law, whether government resources would be best spent enforcing

a particular violation over another, or whether an enforcement action against a specific violation

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would succeed. /d. at 698-99 (internal citations omitted). The court noted that “[m]ajor agency
policy decisions” such as the DACA Rescission Memorandum are “quite different from day-to-
day agency enforcement decisions,” id. at 699 (quoting Nat'l Treasury Emps. Union v. Horner,
854 F.2d 490, 496 (D.C. Cir. 1998)), in that “different considerations than those driving
[Heckler’s] presumption are at play” in that they are “more likely” to be based on an interpretation
of legal requirements than the “mingled assessments of fact, policy, and law that drive an
individual enforcement decision” such as in Heckler. Id. (quoting Crowley Caribbean Transp.,
Inc., 37 F.3d 671, 677 (D.C. Cir. 1994)). The court also distinguished Heckler based on the fact
that it involved a discretionary exercise in non-enforcement, which generally does not “involve
the exercise of ‘coercive power’” over liberty or property rights and thus does not “infringe upon
areas that courts often are called upon to protect.” /d. at 698 (quoting Heckler, 470 U.S. at 832).
Noting that courts have previously recognized that “an agency’s expression of a broad or general
enforcement policy based on the agency’s legal interpretation is subject to review,” the court found
that the DACA Rescission Memorandum was not committed to agency discretion pursuant to
Heckler and was instead subject to judicial review. /d. at 699.

Like the DACA Rescission Memorandum, the 2025 Policy is a broad or general
enforcement policy for which the considerations at issue in Heckler are inapplicable. The 2025
Policy does not involve the exercise of enforcement discretion in an individual case, including in
relation to whether there was a specific violation of law against which action should be taken and
whether resources should be allocated to enforce that violation over another, or an assessment on
whether such a specific enforcement action would succeed. Rather, as with the DACA Rescission
Memorandum, it is necessarily based on broader considerations than those at issue in individual

enforcement decisions as in Heckler. Moreover, unlike in Heckler, which involved a decision not

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to use enforcement power, the 2025 Policy, by removing restrictions on enforcement actions
generally, involves an increased likelihood of the use of coercive power in violation of individual
rights. See CASA de Md., 924 F.3d at 698.

DHS nevertheless argues that CASA de Maryland applies only to general enforcement
policies “based on the agency’s legal interpretation,” Reply at 12, ECF No. 83 (emphasis omitted)
(quoting CASA de Md., 924 F.3d at 699), and notes that unlike the DACA Rescission
Memorandum, which was explicitly based on the conclusion that DACA was or was likely to be
found unlawful, neither the Mayorkas Memorandum nor the Huffman Memorandum directly
addressed whether and when law enforcement actions at or near places of worship are lawful. The
Court does not read CASA de Maryland so narrowly. Although the CASA court emphasized the
fact that the DACA Rescission Memorandum relied on a legal interpretation, it did not conclude
that it would have been unreviewable had its reasoning been based on other considerations. See
CASA de Md., 924 F.3d at 699. Rather, in addressing /nterstate Commerce Commission vy.
Brotherhood of Locomotive Engineers (“BLE”), 482 U.S. 270 (1987), cited by the Government,
the CASA court acknowledged that the Supreme Court in BLE rejected the principle that “if an
agency gives a reviewable reason,” such as a legal interpretation, for an “otherwise unreviewable
action, the action becomes reviewable,” a determination that is difficult to square with the
Government’s present claim that the DACA Rescission Memorandum was subject to judicial
review only because it involved a legal interpretation. CASA de Md., 924 F.3d at 700-01 (quoting
BLE, 482 U.S. at 283)) Moreover, by distinguishing BLE based on the fact that it “addressed the
scope of judicial review in the context of agency non-enforcement action in an individual case,”
while the DACA Rescission Memorandum effected a “broad enforcement policy,” the CASA court

further emphasized that its holding that Heckler did not apply to the DACA Rescission

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Memorandum was grounded in the distinction between a general enforcement policy and an
individual non-enforcement decision rather than the degree to which it was based on a legal
interpretation. Jd. at 701. Indeed, the primary cases cited on this issue by DHS involved individual
enforcement decisions rather than general enforcement policies and thus are inapplicable. See
Speed Mining, Inc. v. Fed. Mine Safety & Health Rev. Comm’n, 528 F.3d 310, 317 (4th Cir. 2008)
(holding that the Secretary of Labor’s decision to issue a citation to an individual mining company
under the Mine Act was committed to agency discretion); Pharm. Coal. for Patient Access v.
United States, 126 F.4th 947, 951-52, 964-65 (4th Cir. 2025) (finding that an advisory opinion
issued by Inspector General of the U.S. Department of Health and Human Services that concluded
that a program proposed by a coalition of drug manufacturers could violate the Anti-Kickback
Statute under certain circumstances and declined to disavow possible enforcement of the Anti-
Kickback Statute against the coalition was committed to agency discretion).

Finally, the Court notes that to the extent that the principle that agency actions are
committed to agency discretion by law is premised on the concept that in some instances there
would be “no meaningful standard” or “no law to apply” when reviewing an agency action,
Heckler, 470 U.S. at 830, here, Plaintiffs’ challenge is subject to such standards because it is
primarily based on the claim that the 2025 Policy violates the First Amendment and RFRA. See
Elecs. of N.C., Inc. v. Se. Power Admin., 774 F.2d 1262, 1267 (4th Cir. 1985) (in discussing the
APA, noting that “an agency decision that violates a statutory or constitutional command . . . is

che

not immune from judicial review” and that “‘even where action is committed to absolute agency
discretion by law, courts have assumed the power to review allegations that an agency exceeded

its legal authority, acted unconstitutionally, or failed to follow its own regulations’” (quoting

Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir. 1981))); see also Garcia v. Neagle, 660 F.2d 983,

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988 (4th Cir. 1981) (stating that even if “the controlling statute indicates that particular agency
action is committed to agency discretion, a court may review the action if there is a claim that the
agency has violated constitutional, statutory, regulatory or other restrictions”). The Court therefore
finds that the 2025 Policy, as a general enforcement policy akin to the DACA Rescission
Memorandum, is not committed to agency discretion by law. See CASA de Md., 924 F.3d at 701.

DHS’s reliance on Lincoln v. Vigil, 508 U.S. 182 (1993), does not alter this conclusion. In
Lincoln, the Supreme Court held that the Indian Health Service’s decision to discontinue the Indian
Children’s Program, which was established by a discretionary allocation of funds from a lump-
sum appropriation to the agency, was committed to agency discretion by law based on a principle
not relevant here: that the “allocation of funds from a lump-sum appropriation is . . . traditionally
regarded as committed to agency discretion.” See id. at 192. Although DHS argues that the fact
that this ruling was issued even though the claims in Lincoln included both APA and constitutional
claims can be interpreted as support for its position that even review of the constitutional claims
is barred by 5 U.S.C. § 702(a)(2), the Court in no way discussed the interplay between the APA
and the constitutional claims, whether asserted through the APA or otherwise. In fact, the Lincoln
Court expressly stated that “the APA contemplates, in the absence of a clear expression of contrary
congressional intent, that judicial review will be available for colorable constitutional claims,” and
it expressly declined to address the constitutional claims because they had not been reviewed in
the lower courts and thus remanded those claims to the Court of Appeals. /d. at 195.

For all of these reasons, the Court finds that the 2025 Policy is not committed to agency
discretion by law pursuant to § 701(a)(2) and therefore will not dismiss the APA claims on this

basis.

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IV. No Adequate Remedy in a Court

DHS argues for the first time in its reply brief that Counts 4 and 5 should be dismissed
because Plaintiffs already have an adequate alternative judicial remedy for these claims through
their RFRA claim in Counts | and their First Amendment claim in Count 2. “Generally, ‘new
arguments cannot be raised in a reply brief’ before the district court.” De Simone v. VSL Pharms.,
Inc., 36 F.4th 518, 531 (4th Cir. 2022) (quoting United States v. Smalls, 720 F.3d 193, 197 (4th
Cir. 2013)). Because DHS raised this argument for the first time in their reply brief, the Court
could fairly deem it to be waived.

Regardless, the Court will not dismiss Counts 4 and 5 on this basis. The APA provides
that “[a]gency action made reviewable by statute and final agency action for which there is no
other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. The Supreme
Court has read this provision narrowly and cautioned that while § 704 was not intended to duplicate
specific statutory procedures for review of agency action, it “should not be construed to defeat the

”

central purpose of providing a broad spectrum of judicial review of agency action.” Bowen v.
Massachusetts, 487 U.S. 879, 903 (1988). In Bowen, the Court drew a distinction between judicial
review based on statutes providing “special and adequate review procedures” that must be
“followed in reviewing a particular agency’s action,” such as those providing that orders issued by
the Federal Trade Commission or the National Labor Relations Board are directly reviewable in a
United States Court of Appeals, and the APA’s general grant of jurisdiction for judicial review of
other agency actions not subject to such special procedures. /d. at 882-83, 887, 903-04 (holding
that the general availability of monetary relief in the United States Court of Claims pursuant to the

Tucker Act did not preclude an APA action in federal district court seeking declaratory and

injunctive relief relating to the federal government’s failure to properly reimburse a state

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government for Medicaid payments). The Fourth Circuit has specifically rejected the argument
that “the APA’s provisions for judicial review apply only to agency actions which have not been
made reviewable by any other statute” and instead held that “[c]ourts will decline to review agency
actions” under the APA “only upon a showing that Congress clearly intended to restrict access to
judicial review.” Ohio River Valley Env’t Coal., Inc. v. Kempthorne, 473 F.3d 94, 100-01 (4th
Cir. 2006) (quoting Hanauer v. Reich, 82 F.3d 1304, 1307 (4th Cir. 1996) (permitting APA review
of an amendment to a state regulatory program pursuant to the Surface Mining Control and
Reclamation Act of 1977 even though that statute had its own procedures and standard of review
that govern the approval or denial of such amendments). Here, although RFRA provides a private
right of action to challenge an agency action as imposing a substantial burden on the exercise of
religion, it does not state, directly or indirectly, that it was intended to restrict or bar APA review
of a claim such as the one asserted in Count 4. Likewise, there is no basis to conclude that Congress
intended to restrict APA review of a First Amendment claim such as the one asserted in Count 5.
The Motion will therefore be denied as to this argument.
V. Notice and Comment

Finally, DHS argues that Plaintiffs’ claim in Count 6 should be dismissed because the 2025
Policy set forth in the Huffman Memorandum is a general policy statement exempt from any
requirement for notice-and-comment rulemaking. Generally, the APA requires notice of, and an
opportunity for interested persons to comment on, “proposals to create, amend, or repeal a[n]
[agency] rule.” See CASA de Md., 924 F.3d at 701. Such rules, sometimes referred to as
substantive or legislative rules, are those that have “the force of law,” create “new law,” or impose
“new rights or duties.” See id. at 702 (quoting Children’s Hosp. of the King’s Daughters, Inc. v.

Azar (“CHKD”), 896 F.3d 615, 620 (4th Cir. 2018)). Sucha rule is one that “supplements a statute,

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adopts a new position inconsistent with existing regulations, or otherwise effects a substantive
change in existing law or policy.” See id. at 702 (quoting CHKD, 896 F.3d at 620). In contrast,
notice-and-comment rulemaking is not required for “interpretive rules, general statements of
policy, or rules of agency organization, procedure, or practice.” See id. at 701 (quoting Perez v.
Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015)). These distinctions are based on the premise that
general policy statements “advise the public prospectively of the manner in which the agency
proposes to exercise a discretionary power,” but do not establish a “binding norm” and otherwise
leave agency officials free to exercise their discretion. See id. at 702 (citations omitted).

Notably, the question of whether an agency action is subject to notice-and-comment
rulemaking is distinct from the question of whether it is a final agency action. See Cal.
Communities Against Toxics v. Env’t Protection Agency, 934 F.3d 627, 635 (D.C. Cir. 2019). A
substantive or legislative rule, which has “the force and effect of law,” is necessarily a final agency
action, but not all final agency actions are necessarily substantive or legislative rules. /d.

In CASA de Maryland, the Fourth Circuit held that the DACA Rescission Memorandum,
although subject to judicial review under the APA, was not a legislative rule and therefore was
exempt from notice-and-comment rulemaking. See CASA de Maryland, 924 F.3d at 702-03. In
so ruling, the court found that the DACA Rescission Memorandum, while removing “a mechanism
under which individuals could receive deferred action” from removal, did not place limits on
“other lawful enforcement prerogatives” or impose a “new binding rule of substantive law” and
still allowed agency officials to exercise their discretion to make deferred action available on an
individualized basis. /d. at 702 (quoting Mada-Luna vy. Fitzpatrick, 813 F.2d 1006, 1015 (9th Cir.
1987)). In addition, the DACA Rescission Memorandum did not bind future Secretaries of

Homeland Security from implementing future deferred action policies. See id. at 702. Thus, the

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DACA Rescission Memorandum fell “on the policy ‘end of the spectrum’” such that it was not
subject to notice-and-comment rulemaking. See id. at 702-03 (quoting CHKD, 896 at 620-21).

Here, as in CASA de Maryland, the 2025 Policy’s rescission of the 2021 Policy removed
certain agency-imposed restrictions, specifically those related to conducting immigration
enforcement actions at or near protected areas, but it did not curtail an immigration officer’s
discretion to, when appropriate, refrain from conducting an enforcement operation at or near
protected areas. Nor does it create a binding rule of substantive law that would prevent a future
Secretary from reverting back to a more restrictive policy similar to the 2021 Policy. Thus, the
Court finds that the 2025 Policy was not a legislative rule and was therefore exempt from the
APA’s notice-and-comment requirement. See id. at 702-03. The Motion will therefore be granted
as to Count 6.

CONCLUSION

For the foregoing reasons, DHS’s Partial Motion to Dismiss will be GRANTED IN PART

and DENIED IN PART. The Motion will be granted as to Count 6 but will be denied as to Counts

3, 4, and 5. A separate Order shall issue.

Date: February 3, 2026

THEODORE D. CHUA all
United States District J

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