Arizona v. City and County of San Francisco

Summary

Certiorari dismissed as improvidently granted.

Text

PRELIMINARY PRINT 
Volume 596 U. S. Part 2 
Pages 763–766 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
June 15, 2022 
REBECCA A. WOMELDORF 
reporter of decisions 
Page Proof Pending Publication
NOTICE: This preliminary print is subject to formal revision before 
the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
[email protected], of any typographical or other formal errors.

OCTOBER TERM, 2021 763 
Syllabus 
ARIZONA et al. v. CITY AND COUNTY OF SAN 
FRANCISCO et al. 
certiorari to the united states court of appeals for 
the ninth circuit 
No. 20–1775. Argued February 23, 2022—Decided June 15, 2022 
Certiorari dismissed. Reported below: 992 F. 3d 742. 
Mark Brnovich, Attorney General of Arizona, argued the 
cause for petitioners. With him on the briefs were Joseph 
A. Kanefeld, Brunn W. Roysden III, Solicitor General, Drew 
C. Ensign, Deputy Solicitor General, Kate B. Sawyer, Assist-
ant Solicitor General, Katlyn J. Divis, Assistant Attorney 
General, Tyler R. Green, and Cameron T. Norris, Steve Mar-
shall, Attorney General of Alabama, Leslie Rutledge, Attor-
ney General of Arkansas, Theodore E. Rokita, Attorney Gen-
eral of Indiana, Derek Schmidt, Attorney General of Kansas, 
Jeff Landry, Attorney General of Louisiana, Lynn Fitch, At-
torney General of Mississippi, Eric S. Schmitt, Attorney 
General of Missouri, Austin Knudsen, Attorney General of 
Montana, John M. O'Connor, Attorney General of Oklahoma, 
Alan Wilson, Attorney General of South Carolina, Ken Pax-
ton, Attorney General of Texas, and Patrick Morrisey, At-
torney General of West Virginia. 
Deputy Solicitor General Fletcher argued the cause for 
the federal respondents. With him on the brief were Solici-
tor General Prelogar, Deputy Solicitor General Gannon, 
Deputy Assistant Attorney General Harrington, Benjamin 
W. Snyder, Daniel Tenny, and Gerard Sinzdak. 
Helen H. Hong, Deputy Solicitor General of California, ar-
gued the cause for the state respondents. With her on the 
brief were Rob Bonta, Attorney General, Michael J. Mon-
gan, Solicitor General, Michael L. Newman and Renu R. 
George, Senior Assistant Attorneys General, Cherokee DM 
Melton, Supervising Deputy Attorney General, Anna Rich, 
Deputy Attorney General, and Kimberly M. Castle, Associ-
ate Deputy Solicitor General, Philip J. Weiser, Attorney 
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764 ARIZON A v. CITY AND COUNTY OF SAN FRANCISCO 
Roberts, C. J., concurring 
General of Colorado, Kathleen Jennings, Attorney General 
of Delaware, Karl A. Racine, Attorney General of the Dis-
trict of Columbia, Holly T. Shikada, Attorney General of 
Hawaii, Kwame Raoul, Attorney General of Illinois, Aaron 
M. Frey, Attorney General of Maine, Brian E. Frosh, Attor-
ney General of Maryland, Maura Healey, Attorney General 
of Massachusetts, Dana Nessel, Attorney General of Michi-
gan, Keith Ellison, Attorney General of Minnesota, Aaron 
D. Ford, Attorney General of Nevada, Andrew J. Bruck, Act-
ing Attorney General of New Jersey, Hector Balderas, Attor-
ney General of New Mexico, Ellen F. Rosenblum, Attorney 
General of Oregon, Josh Shapiro, Attorney General of Penn-
sylvania, Peter F. Neronha, Attorney General of Rhode Is-
land, Mark R. Herring, Attorney General of Virginia, and 
Robert W. Ferguson, Attorney General of Washington. 
Sara J. Eisen-berg fled a brief for respondents City and 
County of San Francisco et al. With her on the brief were 
James R. Williams, Greta S. Hansen, and Raphael N. 
Rajendra.* 
Per Curiam. 
The writ of certiorari is dismissed as improvidently 
granted. 
It is so ordered. 
Chief Justice Roberts, with whom Justice Thomas, 
Justice Alito, and Justice Gorsuch join, concurring. 
This case involves a regulation known as the Public 
Charge Rule, promulgated by the Department of Homeland 
*Briefs of amici curiae urging reversal were fled for the State of Ohio 
et al. by Dave Yost, Attorney General of Ohio, Benjamin M. Flowers, 
Solicitor General, and John L. Rockenbach, Deputy Solicitor General, and 
by the Attorneys General for their respective States as follows: Treg R. 
Taylor of Alaska, Daniel Cameron of Kentucky, and Douglas J. Peterson 
of Nebraska; for the America First Legal Foundation by Christopher E. 
Mills and Reed D. Rubinstein; and for the Immigration Law Reform Insti-
tute by Lawrence J. Joseph and Christopher J. Hajec. 
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Cite as: 596 U. S. 763 (2022) 765 
Roberts, C. J., concurring 
Security in 2019. See 84 Fed. Reg. 41292 (2019). The Rule 
set out the test the Department planned to use to determine 
whether an applicant for admission into the country or ad-
justment to lawful permanent resident status is “likely at 
any time to become a public charge,” which would make him 
ineligible. 8 U. S. C. § 1182(a)(4)(A). Several parties fled 
lawsuits arguing that the Rule was unlawful because it 
defned “public charge” too broadly. 
We granted certiorari in this case not to address the mer-
its of that argument, but to decide whether the petitioners— 
13 States which support the Rule—should have been permit-
ted to intervene in this litigation to defend the Rule's legality 
in the Court of Appeals. Petitioners argue that the answer 
is yes, in light of the Government's actions. 
When this and other suits challenging the Rule were frst 
brought in 2019, the Government defended it. And when 
multiple lower courts, including the District Court here, 
found the Rule unlawful, the Government appealed those de-
cisions. After a change in administrations, though, the Gov-
ernment reversed course and opted to voluntarily dismiss 
those appeals, leaving in place the relief already entered. 
A new administration is of course as a general matter enti-
tled to do that. But the Government then took a further 
step. It seized upon one of the now-consent judgments 
against it—a fnal judgment vacating the Rule nationwide, 
issued in a different litigation—and leveraged it as a basis 
to immediately repeal the Rule, without using notice-and-
comment procedures. 86 Fed. Reg. 14221 (2021) (“Because 
this rule simply implements the district court's vacatur of 
the August 2019 rule . . . DHS is not required to provide 
notice and comment.”). This allowed the Government to 
circumvent the usual and important requirement, under the 
Administrative Procedure Act, that a regulation originally 
promulgated using notice and comment (as the Public Charge 
Rule was) may only be repealed through notice and com-
ment, 5 U. S. C. § 551(5); see Perez v. Mortgage Bankers 
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766 ARIZON A v. CITY AND COUNTY OF SAN FRANCISCO 
Roberts, C. J., concurring 
Assn., 575 U. S. 92, 101 (2015). As part of this tactic of 
“rulemaking-by-collusive-acquiescence,” City and County of 
San Francisco v. United States Citizenship and Immigra-
tion Servs., 992 F. 3d 742, 744 (CA9 2021) (VanDyke, J., dis-
senting), the Government successfully opposed efforts by 
other interested parties—including petitioners here—to in-
tervene in order to carry on the defense of the Rule, includ-
ing possibly before this Court. 
These maneuvers raise a host of important questions. 
The most fundamental is whether the Government's actions, 
all told, comport with the principles of administrative law. 
But bound up in that inquiry are a great many issues beyond 
the question of appellate intervention on which we granted 
certiorari, among them standing; mootness; vacatur under 
United States v. Munsingwear, Inc., 340 U. S. 36 (1950); the 
scope of injunctive relief in an APA action; whether, contrary 
to what “[t]he government has long argued,” the APA “au-
thorize[s] district courts to vacate regulations or other 
agency actions on a nationwide basis,” Brief for Federal Re-
spondents 5, n. 3; how the APA's procedural requirements 
apply in this unusual circumstance, cf. § 551(5); FCC v. Fox 
Television Stations, Inc., 556 U. S. 502, 515 (2009); and more. 
It has become clear that this mare's nest could stand in 
the way of our reaching the question presented on which we 
granted certiorari, or at the very least, complicate our 
resolution of that question. I therefore concur in the 
Court's dismissal of the writ of certiorari as improvidently 
granted. But that resolution should not be taken as refec-
tive of a view on any of the foregoing issues, or on the appro-
priate resolution of other litigation, pending or future, re-
lated to the 2019 Public Charge Rule, its repeal, or its 
replacement by a new rule. See Cook County v. Mayorkas, 
340 F. R. D. 35 (ND Ill. 2021), appeal pending, No. 21–2561 
(CA7); 87 Fed. Reg. 10571 (2022) (new proposed rule that 
would “implement a different policy than the 2019 Final 
Rule”). 
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Reporter’s Note 
The attached opinion has been revised to refect the usual publication 
and citation style of the United States Reports. The revised pagination 
makes available the offcial United States Reports citation in advance of 
publication. The syllabus has been prepared by the Reporter of Decisions 
for the convenience of the reader and constitutes no part of the opinion of 
the Court. A list of counsel who argued or fled briefs in this case, and 
who were members of the bar of this Court at the time this case was 
argued, has been inserted following the syllabus. Other revisions may 
include adjustments to formatting, captions, citation form, and any errant 
punctuation. The following additional edits were made: 
p. 766, line 2: “collective” is replaced with “collusive”

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  PRELIMINARY PRINT Volume 596 U. S. Part 2 Pages 763–766 OFFICIAL REPORTS OF THE SUPREME COURT June 15, 2022 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to noti…

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  764 ARIZON A v. CITY AND COUNTY OF SAN FRANCISCO Roberts, C. J., concurring General of Colorado, Kathleen Jennings, Attorney General of Delaware, Karl A. Racine, Attorney General of the Dis- trict of Columbia, Holly T. Shikada, Attorney General of Hawaii, Kwame Raoul, Attorney General of Illinois, Aaron M. Frey,…

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  lawsuits arguing that the Rule was unlawful because it defned “public charge” too broadly. We granted certiorari in this case not to address the mer- its of that argument, but to decide whether the petitioners— 13 States which support the Rule—should have been permit- ted to intervene in this litigation to defend…

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  But bound up in that inquiry are a great many issues beyond the question of appellate intervention on which we granted certiorari, among them standing; mootness; vacatur under United States v. Munsingwear, Inc., 340 U. S. 36 (1950); the scope of injunctive relief in an APA action; whether, contrary to what “[t]he…