Whoa--court finds Ken Cuccinelli's appointment as acting director of USCIS is unlawful, sets aside his policies under the FVRA and APA
Looking for full opinion
Cc @steve_vladeck
Looking for full opinion
Cc @steve_vladeck
Great, @bradkjenkins posted it in a follow up tweet
@bradkjenkins .@steve_vladeck wrote about Cuccinelli's shady appointment before—basically, Trump created a new position, principal deputy director of USCIS, for the sole purpose of bootstrapping Cuccinelli into the role of acting director under the FVRA lawfareblog.com/ken-cuccinelli… 
@bradkjenkins @steve_vladeck Cuccinelli had never served in the fed gov before. Even more strange, the acting DHS Secretary issued a memo that made that new position the successor to the director, but that memo automatically expired upon appointment of a new director—so the ticket was good for one ride only
@bradkjenkins @steve_vladeck Less than a month later, Cuccinelli issued a few directives intended to make it more difficult for immigrants to win asylum claims
@bradkjenkins @steve_vladeck Here is the statutory framework under the FVRA. B/c his appointment was due to the acting DHS Sec's memo, we can skip any consideration of appointments by the President (which would fail anyway)—it can only be lawful if Cuccinelli was the "first assistant" to the prev director
@bradkjenkins @steve_vladeck The analysis here is interesting but not clearly supported by any authority, which is understandable since the issue is so novel. The court interprets "first assistant" to mean not just a title, someone who was actually subordinate to the principal
But because Cuccinelli had never served in USCIS (or the fed gov at all), and he automatically became the principal on day one, he was never subordinate to the director. By definition, according to the court, he can't be a "first assistant" under the FVRA
"Cuccinelli may have the title of Principal Deputy Director . . . But labels—without any substance—cannot satisfy the FVRA’s default rule under any plausible reading of the statute."
The government defendants conceded that there was no "substantial practice" of appointing a post-vacancy first assistant like this—by which they meant there was not a single example of a post-vacancy first assistant at any time before Cuccinelli's appointment
The court adds support from the structure and purpose of the FVRA. It was intended to limit the group of potential designees and make the Pres take personal responsibility for the new designation.
Accepting the gov's reading would "decimate this carefully crafted framework." It relieves the Pres of responsibility and vastly expands the universe of potential designations (I'd say it's essentially unlimited). Why would Congress pass the FVRA if it actually did nothing?
"For all of these reasons, the Court concludes that Cuccinelli was designated to serve as the acting Director of USCIS in violation of the FVRA."
The next question is the remedy. Fortunately, the FVRA makes that relatively easy. If a person is not lawfully serving in an office, "'[a]n action taken' by that person 'in the performance of any *function or duty* of [the] vacant office . . . shall have no force or effect'"
Cucc issued the asylum directives under statutory authority for the USCIS Director. The court concludes that where a function is assigned to a single office (and not delegated at least 180 days before the vacancy), it must be performed by a proper acting official or dept head
And even if that weren't true, the court also accepts the alternative theory under the APA. Agency action taken without lawful authority is voidable, if not void ab initio.
The directives aren't saved under either the "rule of prejudicial error" or "de facto officer doctrine." No confidence that a diff director would issue the same directives, and DHS had notice of the potential deficiency w/in 8 days of Cucc's appointment.
Thus, under either theory—application of the FVRA vacant-office provision or general principles of administrative law—the reduced-time-to-consult and the prohibition-on-extensions directives 'have no force or effect,' ... and must be 'set aside'"
The broader effect of this order is unclear. The court vacates removal orders & negative credible fear determinations for the 5 plaintiffs, but is prohibited from certifying a class or reviewing individual determinations of parties not before the court.
Others know better than I, but it seems that other plaintiffs may be limited by statute saying court has no jdx where challenges to review removal orders weren't brought w/in 60 days of promulgation. But w/ directives vacated, they won't apply to future removal proceedings
For an example of someone who knows much more about this than I do, please see this threat by @AJosephOConnell
