Notice & Comment

D.C. Circuit Review – Reviewed: A Brief Recap of Orders

The D.C. Circuit didn’t issue any opinions last week, so this recap is brief. The Court did issue two orders of interest, however.

The first order came in Miot v. Trump, No. 26-5050, the government’s appeal of the district court order staying the termination of Temporary Protected Status (TPS) for Haitian nationals under 5 U.S.C. 705 (the APA’s stay provision). The government moved for a stay pending appeal (

i.e., permitting TPS to be terminated pending appeal), which the D.C. Circuit denied by 2-1 vote. Judges Pan and Garcia voted to deny the stay, focusing primarily on the government’s failure to show that it would suffer irreparable harm if the district court’s order remained in effect pending appeal. The Court reasoned that the government had provided only insufficient, “generalized assertions” of injury, namely improper intrusion into the prerogatives of the Executive Branch. “On the other side of the ledger,” however, the plaintiffs—people who would lose TPS and therefore face the possibility of detention and deportation—”face substantial and well-documented harms.” The Court distinguished the Supreme Court’s issuance of two stay orders in another case related to the termination of Temporary Protected Status for Venezuelans and Haitians, based on specific harms asserted there related to foreign policy vis-à-vis Venezuela as well as the specifics of the relief the government had requested in that case.

Judge Walker dissented. In his view, the government had shown irreparable harm by articulating an improper intrusion into the workings of the Executive Branch, and its injury was all the stronger because the government was likely to succeed on the merits of the appeal. Judge Walker also reasoned that the Supreme Court’s stays in the other TPS-related case could not be distinguished; the cases were “the legal equivalent of fraternal, if not identical, twins.”

The second order is unsurprising, but the case is noteworthy: the D.C. Circuit expedited the appeal in Kelly v. Hegseth, No. 26-5070, in which the government is appealing the district court’s order preliminarily enjoining Secretary Hegseth from punishing Senator Mark Kelly (a retired Navy officer) for his participation in a video about illegal orders. The argument will be heard May 7 before Judges Henderson, Pillard, and Pan.