In Re United States , 199 L. Ed. 2d 351 ( 2017 )

Cite as: 583 U. S. ____ (2017) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
IN RE UNITED STATES, ET AL.
ON PETITION FOR WRIT OF MANDAMUS
No. 17–801. Decided December 20, 2017
PER CURIAM.
This case arises from five related lawsuits that chal-
lenge a determination adopted by the Acting Secretary of
the Department of Homeland Security (DHS). The deter-
mination, announced by the Acting Secretary, is to take
immediate steps to rescind a program known as Deferred
Action for Childhood Arrivals, or DACA, by March 5, 2018.
The Acting Secretary stated that her determination was
based in part on the Attorney General’s conclusion that
DACA is unlawful and likely would be enjoined in poten-
tially imminent litigation.
The five suits were filed in the United States District
Court for the Northern District of California, and the
plaintiffs in those actions are the respondents in the mat-
ter now before this Court. The defendants in the District
Court, and the petitioners here, include the Govern-
ment of the United States, the Acting Secretary, and the
President of the United States, all referred to here as the
Government.
In the District Court litigation respondents argue that
the Acting Secretary’s determination to rescind DACA in
the near future is unlawful because, among other reasons,
it violates the Administrative Procedure Act (APA) and
the Due Process Clause of the Fifth Amendment, including
the equal protection guarantee implicit in that Clause.
The issue to be considered here involves respondents’
contention that the administrative record the Government
filed to support the Acting Secretary’s determination to
rescind DACA is incomplete. The record consists of 256
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pages of documents, and the Government contends that it
contains all of the nondeliberative material considered by
the Acting Secretary in reaching her determination.
(Nearly 200 pages consist of published opinions from
various federal courts.)
On October 17, the District Court, on respondents’
motion, ordered the Government to complete the adminis-
trative record. See Regents of Univ. of Cal. v. Department
of Homeland Security, App. C to Pet. for Mandamus, 2017
WL 4642324 (ND Cal., Oct. 17, 2017) (District Court Or-
der). The details of that order are recounted further be-
low. See infra, at 3.
The Government petitioned for a writ of mandamus in
the Court of Appeals for the Ninth Circuit. The Court of
Appeals, in a divided opinion, denied the Government’s
petition. See 875 F.3d 1200 (2017).
On November 19, three days after the Court of Appeals
issued its opinion, respondents moved the District Court
to stay its order requiring completion of the administra-
tive record until after the District Court resolved the
Government’s motion to dismiss and respondents’ motion
for a preliminary injunction. See Motion to Stay in No.
17–cv–5211 (Nov. 19, 2017), Doc. 190. The District Court
did not grant respondents’ request, instead staying its
order for one month.
Still objecting to the District Court’s order, the Govern-
ment now seeks relief in this Court. It has filed here a
petition for a writ of mandamus to the District Court, or,
in the alternative, for a writ of certiorari to the Court of
Appeals.
The Court now grants the petition for a writ of certiorari,
vacates the order of the Court of Appeals for the Ninth
Circuit, and remands the case.
The District Court’s October 17 order requires the Gov-
ernment to turn over all “emails, letters, memoranda,
notes, media items, opinions and other materials” that fall
Cite as: 583 U. S. ____ (2017) 3
Per Curiam
within the following categories:
“(1) all materials actually seen or considered, however
briefly, by Acting Secretary [Elaine] Duke in connec-
tion with the potential or actual decision to rescind
DACA . . . , (2) all DACA-related materials considered
by persons (anywhere in the government) who there-
after provided Acting Secretary Duke with written
advice or input regarding the actual or potential re-
scission of DACA, (3) all DACA-related materials con-
sidered by persons (anywhere in the government) who
thereafter provided Acting Secretary Duke with ver-
bal input regarding the actual or potential rescission
of DACA, (4) all comments and questions propounded
by Acting Secretary Duke to advisors or subordinates
or others regarding the actual or potential rescission
of DACA and their responses, and (5) all materials di-
rectly or indirectly considered by former Secretary of
DHS John Kelly leading to his February 2017 memo-
randum not to rescind DACA.” District Court Order,
2017 WL 4642324, at *8.
The Government makes serious arguments that at least
portions of the District Court’s order are overly broad.
(The Government appears to emphasize certain materials
in categories 2, 3, and 4.) Under the specific facts of this
case, the District Court should have granted respondents’
motion on November 19 to stay implementation of the
challenged October 17 order and first resolved the Gov-
ernment’s threshold arguments (that the Acting Secre-
tary’s determination to rescind DACA is unreviewable
because it is “committed to agency discretion,” 5 U.S. C.
§701(a)(2), and that the Immigration and Nationality Act
deprives the District Court of jurisdiction). Either of those
arguments, if accepted, likely would eliminate the need for
the District Court to examine a complete administrative
record.
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On remand of the case, the Court of Appeals shall take
appropriate action so that the following steps can be
taken. The District Court should proceed to rule on the
Government’s threshold arguments and, in doing so, may
consider certifying that ruling for interlocutory appeal
under 28 U.S. C. §1292(b) if appropriate. Thereafter, the
Court of Appeals or the District Court in the first instance
may consider whether narrower amendments to the record
are necessary and appropriate. In any event, the District
Court may not compel the Government to disclose any
document that the Government believes is privileged
without first providing the Government with the oppor-
tunity to argue the issue.
This order does not suggest any view on the merits of
respondents’ claims or the Government’s defenses, or that
the District Court’s rulings on the Government’s motion to
dismiss and respondents’ motion for preliminary injunc-
tion should be delayed.
The judgment of the Court of Appeals for the Ninth
Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.