UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GONZALES & GONZALES BONDS No. 22-16552 & INSURANCE AGENCY, INC.; TOPPER BROKERAGE, INC.; D.C. No. LEXINGTON NATIONAL 4:20-cv-08897- INSURANCE CORPORATION; KAW AMERICAN SURETY COMPANY; ALLEGHENY CASUALTY COMPANY, OPINION

Plaintiffs-Appellees,

v. U.S. DEPARTMENT OF HOMELAND SECURITY; CHAD F. WOLF, Under the title of Acting Secretary of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; KENNETH T. CUCCINELLI, Under the title of Senior Official Performing the Duties of the Deputy Secretary of Homeland Security,

Defendants-Appellants. 2 GONZALES & GONZALES BONDS & INS. AGENCY, INC. V. USDHS

Appeal from the United States District Court for the Northern District of California Kandis A. Westmore, Magistrate Judge, Presiding

Argued and Submitted October 19, 2023 San Francisco, California

Filed July 18, 2024

Before: Carlos T. Bea, Morgan Christen, and Anthony D. Johnstone, Circuit Judges.

Opinion by Judge Bea; Concurrence by Judge Johnstone; Dissent by Judge Christen

SUMMARY *

Federal Vacancies Reform Act

In an action in which companies that post immigration surety bonds challenged a Department of Homeland Security (“DHS”) rule on the ground that the Acting Secretary of DHS who promulgated the rule was not duly appointed, the panel reversed the district court’s summary judgment in favor of Plaintiffs and remanded. An immigration bond secures a promise that an alien will appear for immigration proceedings. In 2020, Acting * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GONZALES & GONZALES BONDS & INS. AGENCY, INC. V. USDHS 3

Secretary Chad Wolf promulgated a rule permitting DHS to refuse business from certain surety firms (the “Rule”). But, as the panel explained, Wolf was not duly appointed under the applicable law and thus lacked authority to promulgate the Rule. In 2021, Secretary of Homeland Security Alejandro Mayorkas, who was duly appointed, ratified the Rule. The panel held that the Federal Vacancies Reform Act of 1998 (“FVRA”) did not bar Mayorkas from ratifying the Rule, and that ratification cured any defects in the Rule’s promulgation. The panel explained that the Ratification Bar, 5 U.S.C. § 3348(d)(2), prohibits ratification of certain actions taken by a purported officer serving in violation of the FVRA. The panel concluded that the Ratification Bar applies only to “functions or duties” that are “nondelegable.” By the statute’s own definition, the Ratification Bar applies only to nondelegable functions or duties because only nondelegable functions or duties are “required by statute [or regulation] to be performed by the applicable officer (and only that officer).” 5 U.S.C. § 3348(a)(2). Judge Johnstone concurred in the lead opinion except for its conclusion that the meaning of the phrase “the applicable officer (and only that officer)” is plain. Looking to extrinsic evidence from the court’s co-equal branches to resolve this ambiguity, Judge Johnstone nonetheless concluded that “function or duty” includes only the officer’s nondelegable duties. Dissenting, Judge Christen wrote that the text, structure, and purpose of the FVRA make clear that application of the ratification bar does not turn on whether a duty is delegable. Rather, the ratification bar applies to all functions 4 GONZALES & GONZALES BONDS & INS. AGENCY, INC. V. USDHS

and duties that Congress assigns to a single officer (and excludes functions and duties that Congress authorizes more than one officer to perform). Judge Christe