We previously wrote about the decision of Judge Reed O’Connor in the Northern District of Texas, who found that the Obama administration’s DREAM order, which directed Homeland Security not to commence removal proceedings as to people who meet the criteria, were illegal:

One of the defenses raised by the government belatedly, as to which the judge had deferred decision, was whether the plaintiff ICE agents could bring suit or were bound to commence administrative proceedings only due to the Collective Bargaining Agreement and the Civil Service Reform Act (“CSRA”).  The court, argued the government, lacked jurisdiction because of CSRA.

In an Order issued July 31 (full embed at bottom of post), the Judge agreed with the government on the jurisdiction issue, finding that although the government violated the law, these plaintiffs could not bring suit and the court therefore lacked subject matter jurisdiction over the plaintiffs’ claims.  The Court dismissed the case “without prejudice,” meaning that the dismissal was not binding and that some person not bound by CSRA could raise the same issues as to which the Court found illegality (emphasis in original, footnotes omitted):

In its previous Order, the Court found that Congress’s use of the word “shall” in Section 1225(b)(2)(A) of the Immigration and Nationality Act imposes a mandatory obligation on immigration officers to initiate removal proceedings against aliens they encounter who are not “clearly and beyond a doubt entitled to be admitted.” ….

Therefore, the Court concluded that Plaintiffs were likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to congressional mandate. However, the Court finds that Congress has precluded Plaintiffs from pursuing their claims in this Court by enacting the
CSRA. Therefore, the Court finds that this case should be and is hereby DISMISSED without prejudice for lack of subject-matter jurisdiction….

Plaintiffs—federal employees—assert claims against the federal government based on retaliatory acts, or threats thereof, taken by their supervisors. Although they bring their dispute pursuant to the United States Constitution and the Administrative Procedure Act, their claims are based on their challenge to the Deferred Action for Childhood Arrivals program after Plaintiffs’ noncompliance with the program led to the threat of workplace disciplinary action against them. The above-referenced authorities command that this dispute be governed by the CSRA’s comprehensive and exclusive remedial scheme provided by Congress. Therefore, this Court does not have subject matter jurisdiction to address Plaintiffs’ claims. While the Court finds that Plaintiffs are likely to succeed on the merits of their claim challenging the Directive and Morton Memorandum as contrary to the provisions of the Immigration and Nationality Act, see generally Mem. Op. & Order, Apr. 23, 2013, ECF No. 58, Congress has determined that this Court does not have jurisdiction over Plaintiffs’ disputes. As a result, the Court must dismiss Plaintiffs’ claims without prejudice.

This was an ugly victory for the Obama administration. A federal judge found it violated the law, but could not rule on jurisdictional grounds. But winning ugly is still winning, and for now at least, Obama’s illegal DREAM policy lives on.

Obama Non-Deportation Case – Crane v. Napolitano – Order Dismissing Case