SAN FRANCISCO (CN) – A federal judge hinted Thursday he might toss San Francisco’s lawsuit challenging the Justice Department’s unexplained repeal of documents providing guidance to state and local governments for complying with federal civil rights laws because the city might not have standing to sue.
San Francisco sued over the repeal in April, after then-Attorney General Jeff Sessions rescinded 49 guidance documents explaining the department’s interpretation of laws protecting immigrants, the poor, people of color and people with disabilities without sufficiently explaining its rationale, as required by the Administrative Procedure Act.
San Francisco claims the missing explanation has left city officials in the dark about the Trump administration’s new policies, and the resulting uncertainty as to how to enforce the affected laws risks its federal funding for city programs, including ones for integrating people with disabilities into the workplace and reducing minority contact with the juvenile justice system.
“The harm is the uncertainty,” San Francisco’s lawyer Kenneth Walczak told U.S. District Judge Jon Tigar in a downtown San Francisco hearing. “We are in a position where the uncertainty is harming us now.”
Tigar appeared somewhat open to this argument, asking Walczak to submit case law supporting it. But he suggested he might nonetheless rule against San Francisco on this point because standing requires concrete harm.
“Can you point to a single provision of the federal law you think San Francisco might be at risk of violating in the absence of this guidance document?” Tigar asked Walczak. “If there’s not a specific risk of enforcement or an increased risk of enforcement, then what the city is relying on is uncertainty.”
“[Y]es, the harm is the uncertainty,” Walczak replied. “But the uncertainty was caused by the harm of the violation” of the Administrative Procedure Act.
Tigar didn’t comment further on this argument. But he rejected the city’s other standing argument – that it is a government entity entitled to “special solicitude” for invoking standing.
When Justice Department attorney Cesar Lopez-Morales argued the concept of special solicitude applies only to states, Tigar told him to move on because “you’re probably going to win this point.”
Lopez-Morales next discussed San Francisco’s argument that it risks losing federal funding. He called the allegation “speculative” and “bare bones,” contending it’s not specific enough to establish standing.
Similarly, because three of the eight challenged documents were replaced by “virtually identical” guidance, “there can be no allegation of concrete or particularized harm,” he said.
Walczak, however, countered the new guidance documents differ from the old ones. The new refugee employment flyer, for example, omits a sentence informing asylum seekers they may apply for a temporary work permit, while a statement on group homes for people with disabilities adds additional factors municipalities may now consider when zoning for them that “essentially provides a roadmap for denying” them.
“In all three of those cases we would argue rescission matters; we just don’t know what that reason is,” Walczak said. “It’s the basis of the APA violation.”
He added, “Without enforcement of the APA, this administration can use bulk rescission to avoid challenges to their actions in court.”