National TPS Alliance et al v. Mullin et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
NATIONAL TPS ALLIANCE, et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Defendants.
Case No. 25-cv-01766-EMC
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION FOR LEAVE TO AMEND
Docket No. 455
Pending before the Court is Plaintiffs’ motion for leave to amend the operative complaint.
The operative complaint consists of two different documents: (1) the first amended and
supplemental complaint (Docket No. 250) and (2) the second supplemental complaint (Docket No.
355). “Plaintiffs seek to amend the [operative] complaint to eliminate claims which are no longer
viable [based on the Supreme Court’s decision in Mullin v. Dahlia Doe, 146 S. Ct. 2121 (2026)]
and raise three new claims. Defendants stipulate to amendment to eliminate claims, but oppose
amendment to raise new claims.” Mot. at 2. Having considered the parties’ briefs and
accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS
in part and DENIES in part Plaintiffs’ motion for leave to amend. The motion is granted to the
extent Plaintiffs ask to eliminate already pled claims but denied to the extent Plaintiffs seek to add
the three new constitutional claims.
I. FACTUAL & PROCEDURAL BACKGROUND
As noted above, the operative complaint consists of two different documents: (1) the first
amended and supplemental complaint (Docket No. 250) and (2) the second supplemental
complaint (Docket No. 355). In the documents, Plaintiffs assert seven different causes of action.
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Counts 1-5 are listed in the first amended and supplemental complaint, and Counts 6-7 in the
second supplemental complaint. The seven causes of action are as follows:
(1) Violation of the APA – Venezuela TPS, January 2025 vacatur.1
(2) Violation of the APA – Venezuela TPS, February 2025 termination.2
(3) Violation of the APA – Haiti TPS, February 2025 partial vacatur.3
(4) Violation of the APA – Haiti TPS, July 2025 termination.4
(5) Violation of Equal Protection (for all administrative acts in Counts 1-4 above, both
Venezuela and Haiti).
(6) Violation of the APA – Haiti TPS, November 2025 termination.5
(7) Violation of Equal Protection – Haiti TPS, November 2025 termination.
The parties agree that, because of the Dahlia Doe decision, Counts 4 and 6 above (the
APA challenges to the July 2025 and November 2025 terminations of Haiti TPS) are no longer
viable. Under Dahlia Doe, the Court lacks jurisdiction to review the terminations.
The parties also agree that, at least at this point, Plaintiffs still have two equal protection
claims – i.e., Counts 5 and 7. The equal protection claims cover all of the decisions to vacate and
terminate.
/ / /
1 On January 15, 2025, shortly before the second Trump Administration was to begin, Secretary
Mayorkas extended the 2023 TPS designation for Venezuela – from April 2, 2025, to October 2,
2026. On January 28, 2025, Secretary Noem signed off on the decision to vacate Secretary
Mayorkas’s extension. See Docket No. 279 (SJ Order at 11, 13).
2 On February 1, 2025, Secretary Noem signed off on the decision to terminate Venezuela’s TPS.
See Docket No. 279 (SJ Order at 14). Under Secretary Noem’s action, the TPS designation would
end on April 2, 2025.
3 In July 2024, Secretary Mayorkas extended TPS for Haiti – until February 3, 2026. On February
18, 2025, Secretary Noem approved the partial vacatur of Secretary Mayorkas’s extension. The
TPS designation period was shortened: from February 3, 2026, to August 3, 2025. See Docket No.
279 (SJ Order at 17-18).
4 On July 1, 2025, Secretary Noem terminated Haiti’s TPS. Specifically, the designation would
end on August 3, 2025. See Docket No. 279 (SJ Order at 18).
5 The termination of Haiti’s TPS did not take place on August 3, 2025, because of judicial relief
obtained in another district court. On November 28, 2025, Secretary Noem published a notice
terminating Haiti’s TPS as of February 3, 2026. See Docket No. 355 (2d Supp. Compl. ¶¶ 1-2).
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Finally, the parties agree that the claims still on appeal are the APA claims related to the
decisions to vacate (as opposed to the decision to refuse to extend) TPS status: Count 1
(Venezuela TPS vacatur); Count 2 (Venezuela TPS termination, but Plaintiffs agree there is no
jurisdiction over this claim except to the extent the termination is predicated on the unlawful
vacatur, see Mot. at 2 n.1); and Count 3 (Haiti TPS partial vacatur).
Plaintiffs move to amend (1) to drop Counts 4 and 6 (barred under Dahlia Doe) and (2) to
add three new constitutional claims. The proposed claims are as follows:
(1) that the challenged vacaturs and terminations violate the
Constitution’s Due Process clause because Defendants failed to
follow congressionally mandated TPS processes (proposed Fifth
Claim); (2) that the challenged vacaturs and terminations violate the
Constitution’s equal protection guarantee because Defendants
were motivated by bare animus and a desire to harm TPS holders
(proposed Sixth Claim)[6]; and (3) that the challenged vacaturs and
terminations constituted illegal ultra vires action as the Secretary
lacked statutory authority to execute TPS decisions, a power that lies
exclusively with the Attorney General (proposed Seventh Claim).
Mot. at 3 (emphasis added). The government does not oppose eliminating Counts 4 and 6 but
does oppose the proposal to add the three new constitutional claims. Given the government’s
position, the Court focuses on the proposed new constitutional claims only.
II. DISCUSSION
Under Federal Rule of Civil Procedure 15(a), “a party may amend its pleading only with
the opposing party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). In considering whether to give leave to amend, a
court typically considers five factors: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing
party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his
complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). “Undue delay by itself . . . is
insufficient to justify denying a motion to amend.” Bowles v. Reade, 198 F.3d 752, 758 (9th Cir.
6 As one district court has explained, the bare animus equal protection claim “is based on the
principle that ‘a bare . . . desire to harm a politically unpopular group cannot constitute a
legitimate governmental interest.’” Doe v. Mullin, No. 25 C 15483, 2026 U.S. Dist. LEXIS
176732, at *33-34 (N.D. Ill. Aug. 7, 2026) (emphasis in original; quoting Romer v. Evans, 517
U.S. 620 (1996)).
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1999). By contrast, futility of amendment or prejudice to the opposing party can, by itself, justify
the denial of a motion for leave to amend. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.
1995) (futility); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)
(prejudice).
A. Undue Delay and Prejudice
For purposes of the pending motion, the Court assumes that Plaintiffs did unduly delay in
seeking to add the three new constitutional claims. But even with this assumption, undue delay by
itself does not suffice to deny a motion to amend. There must also be a showing of, e.g.,
prejudice.
Here, there is an insufficient showing of prejudice. At the hearing, the government
suggested prejudice because discovery on the existing claims is in its end stages and to add three
new claims would essentially reopen and extend discovery. But that is not the case. Plaintiffs
confirmed at the hearing that the only matters on which they still seek discovery are all related to
already existing claims. While such discovery would also be pertinent to some or all of the
proposed new claims, denial of the proposed amendment would not mean Plaintiffs would thereby
abandon the discovery as it is still needed for their existing claims. In short, Plaintiffs represent
they need no new discovery particular to these proffered claims.
B. Futility
In the absence of prejudice, the critical issue for the Court is whether the proposed new
claims are futile.7 As the government points out, there are several different courts presiding over
TPS cases where the plaintiffs have had or sought to add one or more of the same claims that
Plaintiffs seek to add here.
/ / /
7 Plaintiffs maintain that futility is a high bar and that, if there are any uncertainties about futility,
they should be fleshed out through a 12(b)(6) motion instead of the pending motion to amend.
While Plaintiffs’ position is not without any merit, the approach does not make sense in this case,
particularly when Plaintiffs have an interest in moving matters forward, the issues have been
sufficiently briefed (before not only this Court but also other district courts), and the Court has
allowed for supplemental briefing after Plaintiffs requested such. In short, for purposes of this
case, the Court’s assessment of futility is tantamount to an analysis of whether Plaintiffs have
failed to state a claim for relief for 12(b)(6) purposes.
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• NTPSA v. Mullin, No. 25-5687 TLT (N.D. Cal.) (Judge Thompson, covering
Honduras, Nepal, and Nicaragua).
• Doe v. Mullin, No. C-25-15483 (N.D. Ill.) (Judge Kennelly, covering Burma).
• African Comms. Together v. Mullin, No. C-25-13939 PBS (D. Mass.) (Judge Saris,
covering South Sudan).
• African Comms. Together v. Mullin, No. C-26-10278-BEM (D. Mass.) (Judge
Murphy, covering Ethiopia).
• African Comms. Together v. Mullin, No. C-26-11201 ADB (D. Mass.) (Judge
Burroughs, covering Somalia).
• Abdo Doe v. Mullin, No. C-26-2280 (DEH) (S.D.N.Y.) (Judge Ho, covering
Yemen).
The courts above have all rejected the ultra vires and due process claims. Those courts that
have considered the equal protection bare animus claim have also rejected it.
1. Jurisdiction
As an initial matter, the Court addresses the government’s contention that all of the new
claims are futile because they not subject to judicial review – i.e., the Court lacks jurisdiction over
the claims. See 8 U.S.C. § 1254a(b)(5) (“There is no judicial review of any determination of the
Attorney General with respect to the designation, or termination or extension of a designation, of a
foreign state under this subsection.”). The government’s argument is not persuasive.
Two of the claims – the due process and bare animus equal protection claims – are based
on the Constitution. Dahlia Doe held that “[t]he TPS statute bars consideration of [the plaintiffs’]
non-constitutional claims.” Dahlia Doe, 146 S. Ct. at 2127 (emphasis added). It did not hold that
the TPS statute bars consideration of constitutional claims. See id. at 2137 (acknowledging that,
“‘where Congress intends to preclude review of constitutional claims[,] its intent to do so must be
clear,’” but “we need not resolve whether the TPS statute meets that clear-statement rule because
we conclude that Miot [plaintiffs’] constitutional claim is unlikely to succeed on the merits”).
While Plaintiffs’ proposed due process claim tracks the APA claims that are now foreclosed by
Dahlia Doe, see Mot. at 3 (asserting that “the challenged vacaturs and terminations violate the
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Constitution’s Due Process clause because Defendants failed to follow congressionally mandated
TPS processes”), the due process claim is technically still founded on the Constitution. See, e.g.,
African Comms., 2026 WL 2364398, at *5 (“In the absence of compelling evidence to the
contrary, the Court will not conclude that Congress departed from over two hundred years of
history by denying all remedies for constitutional claims when it passed [the TPS statute] 8 U.S.C.
§ 1254a.”); Doe v. Mullin, 2026 WL 2279577, at *9 (“It is true that the plaintiffs’ due process
claim relies exclusively on statutory violations. But if the plaintiffs are right that the statutory
procedures are required by due process – a floor set by federal constitutional law – the claims are
distinct.”).
As for the third claim – the ultra vires claim – several of the courts above have
persuasively explained why there is jurisdiction over this claim. For example, the Illinois district
court explained that, “[i]n stating that the jurisdictional bar applied to all nonconstitutional claims,
the Supreme Court assumed the undisputed premise that the jurisdictional bar, whatever its scope,
applied to the Secretary’s determinations.” Doe v. Mullin, 2026 WL 2279577, at *6 (emphasis
added). The court acknowledged that, “if the plaintiffs’ reading is wrong [i.e., the Secretary does
in fact have the authority to make TPS determinations], then the jurisdictional bar does apply.
[But] [t]he jurisdictional issue is intertwined with the merits of the statutory interpretation issue,
and the default rule in situations of intertwinement is to proceed to the merits.” Id. (emphasis
added). One of the Massachusetts courts reached the same conclusion for the same reasons. See
African Comms., 2026 WL 2364398, at *11 (“The Court has jurisdiction over this final claim
because the judicial-review bar only applies to decisions by the statutorily authorized decision-
maker. . . . [W]here the question of jurisdiction ‘entirely overlap[s] with the merits, the Court may
decide the jurisdictional issue, even if its conclusion could ‘in effect deprive [it] of jurisdiction.’”).
The Court agrees with these decisions and rejects the government’s assertion that judicial
review of the claims is improper. It thus turns to the merits of each claim.
2. Ultra Vires Claim
In the ultra vires claim, Plaintiffs assert that that “the challenged vacaturs and terminations
constituted illegal ultra vires action as the Secretary lacked statutory authority to execute TPS
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decisions, a power that lies exclusively with the Attorney General.” Mot. at 3. In support of their
position, Plaintiffs rely on the plain language of the TPS statute. See 8 U.S.C. § 1254a(b)(3)(B)
(stating that, “[i]f the Attorney General determines . . . that a foreign state . . . no longer continues
to meet the conditions for designation . . . , the Attorney General shall terminate the designation”)
(emphasis added).
The Court concludes the ultra vires claim is futile. The TPS statute, § 1254a, cannot be
evaluated in a vacuum. In 2002, the Homeland Security Act was enacted, “which created the
Department of Homeland Security and assigned or transferred to the Secretary of Homeland
Security many of the functions previously exercised by the Attorney General.” Molino v. Soto,
No. 25cv16880 (EP), 2025 U.S. Dist. LEXIS 231938, at *6 (D.N.J. Nov. 25, 2025). Title 8 U.S.C.
§ 1103 provides in relevant part:
The Secretary of Homeland Security shall be charged with the
administration and enforcement of this Act and all other laws
relating to the immigration and naturalization of aliens, except
insofar as this Act or such laws relate to the powers, functions, and
duties conferred upon the President, Attorney General, the Secretary
of State, the officers of the Department of State, or diplomatic or
consular officers . . . .
8 U.S.C. § 1103(a)(1) (emphasis added). Generally speaking, the functions that were transferred
to the Department of Homeland Security were those that had been carried out by the Immigration
and Naturalization Service (“INS”), which was part of the Department of Justice and thus under
the oversight of the Attorney General. See Mestanek v. Jaddou, 93 F.4th 164, 170-71 (4th Cir.
2024) (“Before the Homeland Security Act, federal immigration laws and regulations were
administered by the Immigration and Naturalization Service (INS), which was housed in the
Department of Justice and overseen by the Attorney General.”). There is no suggestion that the
INS was not responsible for TPS. Thus, responsibility for TPS was transferred over to the
Department of Homeland Security.
Not surprisingly, Plaintiffs focus on the exception to the transfer of authority in § 1103: the
statute specifies that, where “this Act” confers certain power on the Attorney General, then the
Attorney General retains that power and there is no transfer to the Secretary, and the TPS statute is
part of “this Act.” Essentially, Plaintiffs are relying on the fact that the language of the TPS
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statute (§ 1254a) was not amended with the passage of the Homeland Security Act, i.e., to replace
the reference to the Attorney General with a reference to the Secretary.
But the fact that the text of § 1254a was not amended does not establish that Congress
meant to carve out TPS as an immigration area over which the Attorney General retained
authority. “Congress did not go through the INA and change specific references to the Attorney
General to instead refer to the Secretary.” Doe v. Mullin, 2026 WL 2279577, at *8. Instead, the
route that Congress followed was to “broadly reassign[] functions [i.e., with § 1103] and [then]
add[] a [statutory] provision that ‘deem[s]’ references to other officers to refer to the Secretary.”
Id. Title 6 U.S.C. § 557 is one statutory provision that deems references to other officers to refer
to the Secretary. It states:
With respect to any function transferred by or under this Act . . . and
exercised on or after the effective date of this Act, reference in any
other Federal law to any department, commission, or agency or any
officer or office the functions of which are so transferred shall be
deemed to refer to the Secretary, other official, or component of the
Department to which such function is so transferred.
6 U.S.C. § 557. Title 6 U.S.C. § 552(d) is another such provision. The statute provides:
References relating to an agency that is transferred to the
Department in statutes, Executive orders, rules, regulations,
directives, or delegations of authority that precede such transfer or
the effective date of this Act shall be deemed to refer, as appropriate,
to the Department, to its officers, employees, or agents, or to its
corresponding organizational units or functions. . . .
6 U.S.C. § 552(d). And notably, in Dahlia Doe, the Supreme Court cited both § 557 and § 552(d)
in stating that “[r]esponsibility for TPS decisions rests with the Secretary of Homeland Security, 6
U. S. C. §§ 552(d), 557 . . . .” Dahlia Doe, 146 S. Ct. at 2129. Given the authorities cited above,
Plaintiffs’ ultra vires claim lacks merit.
Finally, two other considerations weigh in favor of the Secretary, and not the Attorney
General, having authority over the TPS scheme. First, “[l]ongstanding practice confirms that TPS
authority lies with the Secretary. . . . [I]t is unlikely that everybody has misinterpreted the
allocation of immigration authority in the HSA for the past two decades and that Congress has
simply let it slide.” Doe v. Mullin, 2026 WL 2279577, at *8; cf. 68 Fed. Reg. 9824, 9827 (Feb.
28, 2003) (final rule issued by DOJ in 2003, titled “Aliens and Nationality; Homeland Security;
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Reorganization of Regulations”) (noting the need for “further refinement to clarify the authority of
[the] Secretary of Homeland Security to designate countries for temporary protected status
purposes”). Plaintiffs argue that longstanding practice does not establish legality; but if Congress
did not mean to delegate TPS authority to the Secretary, something would have been said over the
past two decades. It did not.
Second,
even if the plaintiffs’ reading of the statute were correct, it would
defeat their own claim to relief. The portion of the TPS statute
authorizing designations, like the portion addressing termination,
refers to the Attorney General. The plaintiffs’ reading would
therefore mean that the Secretary lacked authority to designate [a
country] for TPS in the first place.
Doe v. Mullin, 2026 U.S. Dist. LEXIS 176732, at *23.
Because the proposed ultra vires claim is futile, the Court does not permit amendment.
3. Due Process Claim
Plaintiffs’ next proposed claim is one for violation of due process. In the proposed second
amended complaint (“SAC”), Plaintiffs allege that: (1) they have “substantial, protected liberty
and property interests in their TPS status and consequent benefits, including employment
authorization and protection from detention and removal,” Prop. SAC ¶ 278; (2) the process they
“are guaranteed [under the Due Process Clause] – at minimum – [is] the process Congress made
available to them by statute,” Prop. SAC ¶ 282; and (3) “Defendants’ failure to follow the baseline
process Congress guaranteed to protect the liberty and property interests of TPS holders violates
Plaintiffs’ right to due process of law.” Prop. SAC ¶ 283. At the hearing, Plaintiffs confirmed
that their due process claim is founded on procedural due process. See also Prop. SAC ¶ 281
(alleging that, “[o]nce Congress . . . mandates the provision of a benefit, the government must
provide due process before taking it away”) (emphasis omitted).
For purposes of the pending motion, the Court assumes that Plaintiffs have a cognizable
property or liberty interest protected by the due process clause. See Ramos v. Nielsen, 321 F.
Supp. 3d 1083, 1121 (N.D. Cal. 2018) (noting that “[t]he Secretary is given broad discretion in
deciding whether to make an initial TPS designation” but “[t]he same is not true with respect to
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extensions and terminations” where the TPS statute states the Secretary “shall” terminate TPS
only if it determines that a foreign state no longer continues to meet the conditions for
designation). But even with this assumption, the Court holds that the proposed due process claim
is futile.
First, Plaintiffs are asking for the kind of process that is required where government
conduct is adjudicative in nature rather than legislative. See African Comms., 2026 U.S. Dist.
LEXIS 176637, at *12-13 (noting that, “if a protected interest ‘is affected by generally-applicable
legislative action,’ the interest-holder is ‘not entitled to notice above and beyond the notice
provided by the enactment and publication of the statute’ at issue”; in contrast, “‘individual
adjudications . . . require more specific procedures, as well as more specific notice’”). But there is
a good argument that the government conduct at issue here is more legislative than adjudicative.
See Gallo v. United States Dist. Court, 349 F.3d 1169, 1182 (9th Cir. 2003) (noting that, when a
court evaluates whether government action is legislation or adjudication, “[t]he three primary
considerations are: (1) whether the government action applies to specific individuals or to
unnamed and unspecified persons; (2) whether the promulgating agency considers general facts or
adjudicates a particular set of disputed facts; and (3) whether the action determines policy issues
or resolves specific disputes between particular parties”). See, e.g., id. at 1182-83 (holding that
state bar rule requiring that all attorneys be members of the state bar was legislation because, even
though it did have retroactive application, it resembled legislation in every other way; noting that
“[t]he effect of the law is to revoke a general class of licenses, but unlike a disbarment proceeding,
the ground for doing so is not individual attorney misconduct”); African Comms., 2026 U.S. Dist.
LEXIS 176637, at *13-14 (in TPS case, stating that “Plaintiffs do not assert a denial of individual
benefits under South Sudan’s TPS designation” but instead “bring a programmatic challenge
against the termination of the designation altogether” which is “closer to a challenge to a
‘generally applicable’ agency action”). While Plaintiffs have cited cases where “‘[c]ourts have
applied procedural due process protections to determinations that affect large groups of people at
once,’” those cases “involved government action that directly impacted individuals’ due process
rights. . . . Neither case supports Plaintiffs' contention that a procedural due process claim may be
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premised on alleged procedural errors in the government's termination of an entire program
pursuant to a validly enacted statute.” Id. at *14 n.5 (emphasis added). The alleged error here
affected the government’s ultimate decision to end TPS status, which, in turn, affected a large
group of individuals. Cf. Mercatus Group LLC v. Lake Forest Hosp., 695 F. Supp. 2d 811, 819
(7th Cir. 2010) (“Generally, action is legislative in nature if it involves ‘the promulgation of
general or prospective legislation or establish[es] guidelines by which the future conduct of certain
groups is to be judged,’ while actions are adjudicative if they ‘involve the application of already
enacted ordinances or recognized policies to specific instances.’”). There was no deprivation of a
process to which individual TPS beneficiaries were personally entitled. The action is thus more
akin to a legislative rather than adjudicatory process, and thus the applicability of due process
seems dubious.
Second, in any event, Plaintiffs have failed to demonstrate that the Constitution would
require the specific process Plaintiffs seek here – i.e., the process afforded by the TPS statute
itself.8 Plaintiffs’ suggestion that a due process claim is always viable if it simply seeks the
process required by a statute is not tenable. Under Plaintiffs’ position, every statutory claim
would automatically give rise to a constitutional claim. Thus, there is merit to the government’s
argument that Plaintiffs’ due process claim is simply a repackaged APA claim which the Supreme
Court has held that the Court lacks the jurisdiction to review.
Plaintiffs’ reliance on Department of Homeland Security v. Thuraissigiam, 591 U.S. 103
(2020), is unavailing. As explained in Doe v. Mullin, 2026 WL 2279577, that case at most
establish[es] that whatever processes Congress provides for the
lawful admission of noncitizens into the United States automatically
satisfy due process. [But] [i]t does not follow that a failure to follow
statutorily prescribed procedures also always violates due process.
In other words, compliance with statutory procedures in this context
is sufficient but not always necessary for due process.
Id. at *10. That the statutory process was found in Thuraissigiam to satisfy the Constitution does
not mean the statute itself sets the constitutional floor. Cf. Ching v. Mayorkas, 725 F.3d 1149,
8 At the hearing, Plaintiffs stated that they were not asserting a due process claim based on
anything other than – or anything less than – the process required by the TPS statute.
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1157 (9th Cir. 2013) (stating that “‘due process is flexible and calls for such procedural
protections as the particular situation demands’”’; “[b]ecause of its inherent differences from the
judicial process, administrative proceedings in particular must be carefully assessed to determine
what process is due given the specific circumstances involved[,] [a]nd we must do so on a case by
case basis”).
Because the due process claim proposed by Plaintiffs is futile, amendment is not
warranted.
4. Equal Protection Bare Animus Claim
Finally, Plaintiffs propose to add a new equal protection claim to the suit – a bare animus
claim. In Trump v. Hawaii, 585 U.S. 667 (2018), the Supreme Court indicated that a bare animus
equal protection claim is essentially an equal protection claim predicated on rational review.
[I]t should come as no surprise that the Court hardly ever strikes
down a policy as illegitimate under rational basis scrutiny. On the
few occasions where we have done so, a common thread has been
that the laws at issue lack any purpose other than a “bare . . . desire
to harm a politically unpopular group.” Department of Agriculture
v. Moreno, 413 U.S. 528, 534 (1973). In one case, we invalidated a
local zoning ordinance that required a special permit for group
homes for the intellectually disabled, but not for other facilities such
as fraternity houses or hospitals. We did so on the ground that the
city’s stated concerns about (among other things) “legal
responsibility” and “crowded conditions” rested on “an irrational
prejudice” against the intellectually disabled. Cleburne v. Cleburne
Living Center, Inc., 473 U. S. 432, 448-450 (1985) (internal
quotation marks omitted). And in another case, this Court
overturned a state constitutional amendment that denied gays and
lesbians access to the protection of antidiscrimination laws. The
amendment, we held, was “divorced from any factual context from
which we could discern a relationship to legitimate state interests,”
and “its sheer breadth [was] so discontinuous with the reasons
offered for it” that the initiative seemed “inexplicable by anything
but animus.” Romer v. Evans, 517 U. S. 620, 632, 635 (1996).
Id. at 705-06 (emphasis added); cf. Lawrence v. Texas, 539 U.S. 558, 582 (2003) (“Moral
disapproval of [a] group, like a bare desire to harm the group, is an interest that is insufficient to
satisfy rational basis review under the Equal Protection Clause.”).
/ / /
/ / /
/ / /
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In their proposed SAC, Plaintiffs allege that the bare animus harbored by the government
here is to TPS holders (i.e., regardless of their race).9 See Prop. SAC ¶ 288 (“Defendants’
decisions to vacate and terminate the TPS designations of Venezuela and Haiti are
unconstitutional because they were motivated by explicit animosity and a desire to harm TPS
holders.”). But the bare animus cases decided by the Supreme Court are markedly different in
nature from the case at bar. The Supreme Court cases reflect clear targeting of a identified group
of persons (e.g., intellectually disabled persons, gays/lesbians, and “hippies”) for which there was
no other credible reason other than animosity and a desire to harm that group. In contrast, here,
there may well have been animosity with respect to the Biden administration’s TPS policies, see
Prop. SAC ¶ 176 (alleging that, “[o]n February 9, 2026, Secretary Noem again repeated
inaccuracies about TPS and TPS holders, tweeting: ‘Temporary Protected Status was abused to
allow violent terrorists, criminals, and national security threats into our nation’”) (emphasis added)
– perhaps even animosity against TPS writ large – but “there is a distinction between bare desire
to harm TPS holders and animus against TPS policy (and immigration as a whole).” Doe v.
Mullin, 2026 WL 2279577, at *12 (emphasis added). Although Plaintiffs have alleged animosity
against TPS holders specifically and not policy, those allegations are, in effect, conclusory. It is
unclear, for instance, whether such animosity differed from that which may have been based on,
e.g., animosity toward immigrants generally, immigrants in the U.S. without other current
documented status, immigrants from countries of color or from particular countries. Nor, more
generally, have Plaintiffs alleged any concrete facts to show the challenged action was based on
animosity against TPS holders as opposed to hostility to the TPS program generally.
The Court, accordingly, concludes that the proposed equal protection bare animus claim is
futile. Amendment is therefore not justified.
III. CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Plaintiffs’ motion for
leave to amend. Plaintiffs have leave to amend so as to eliminate the claims now barred by Dahlia
9 At the hearing, Plaintiffs indicated they were not claiming bare animus against a broader group
such as immigrants.
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Doe. Plaintiffs are not permitted to amend to add the three proposed new constitutional claims.
Plaintiffs shall file an amended complaint consistent with the rulings in this order by October 21,
2026.
In addition, the Court sets a status conference for the case for November 17, 2026, at 2:30
p.m. The parties shall file a joint status report one week in advance of the conference. The parties
shall be prepared to discuss case management deadlines, including but not limited to deadlines for
dispositive motions and trial.
This order disposes of Docket No. 455.
IT IS SO ORDERED.
Dated: October 14, 2026
______________________________________
EDWARD M. CHEN
United States District Judge
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