In re United States

IN RE UNITED STATES et al.

on petition for writ of mandamus

No. 17–801. Decided December 20, 2017 This case involves five related lawsuits that challenge a determination by the Acting Secretary of the Department of Homeland Security to take immediate steps to rescind the Deferred Action for Childhood Arrivals program. On October 17, 2017, the District Court ordered the Govern- ment to complete the administrative record by turning over certain “emails, letters, memoranda, notes, media items, opinions and other ma- terials.” The Government moved to stay the implementation of that October 17 order until certain threshold arguments could be resolved.

The District Court instead stayed the order for one month. The Gov- ernment now seeks relief in this Court.

Held: On the facts of this case, the District Court should have granted the motion to stay implementation of the October 17 order and first resolved the Government's threshold arguments regarding jurisdiction and re- viewability. On remand, the District Court should proceed to rule on the Government's threshold arguments. The Court of Appeals or Dis- trict Court may then consider whether narrower amendments to the record are necessary and appropriate.

Certiorari granted; vacated and remanded.

Per Curiam.

This case arises from five related lawsuits that challenge a determination adopted by the Acting Secretary of the De- partment of Homeland Security (DHS). The determination, 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 Act- ing Secretary stated that her determination was based in part on the Attorney General's conclusion that DACA is un- lawful and likely would be enjoined in potentially imminent litigation.

The five suits were filed in the United States District Court for the Northern District of California, and the plain- tiffs in those actions are the respondents in the matter now

Per Curiam

before this Court. The defendants in the District Court, and the petitioners here, include the Government 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 vio- lates the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment, including the equal protec- tion guarantee implicit in that Clause.

The issue to be considered here involves respondents' con- tention that the administrative record the Government filed to support the Acting Secretary's determination to rescind DACA is incomplete. The record consists of 256 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 administrative rec- ord. See Regents of Univ. of Cal. v. Department of Home- land Security, App. C to Pet. for Mandamus, 2017 WL 4642324 (ND Cal., Oct. 17, 2017) (District Court Order).

The details of that order are recounted further below.

The Government petitioned for a writ of mandamus in the Court of Appeals for the Ninth Circuit. The Court of Ap- peals, 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 administrative rec- ord 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, Doc. 190.

The District Court did not grant respondents' request, in- stead staying its order for one month.

Cite as: 583 U. S. 29 (2017) 31 Per Curiam

Still objecting to the District Court's order, the Govern- ment now seeks relief in this Court. It has filed here a peti- tion 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 Cir- cuit, 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 within

“(1) all materials actually seen or considered, however briefly, by Acting Secretary [Elaine] Duke in connection with the potential or actual decision to rescind DACA . . . , (2) all DACA-related materials considered by per- sons (anywhere in the government) who thereafter pro- vided Acting Secretary Duke with written advice or input regarding the actual or potential rescission of DACA, (3) all DACA-related materials considered by persons (anywhere in the government) who thereafter provided Acting Secretary Duke with verbal input re- garding the actual or potential rescission of DACA, (4) all comments and questions propounded by Acting Sec- retary Duke to advisors or subordinates or others re- garding the actual or potential rescission of DACA and their responses, and (5) all materials directly or indi- rectly considered by former Secretary of DHS John Kelly leading to his February 2017 memorandum not to rescind DACA.” District Court Order, 2017 WL 4642324, *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

Per Curiam

on November 19 to stay implementation of the challenged October 17 order and first resolved the Government's thresh- old arguments (that the Acting Secretary's determination to rescind DACA is unreviewable because it is “committed to agency discretion,” 5 U. S. C. § 701(a)(2), and that the Immi- gration 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.

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 Govern- ment'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 con- sider whether narrower amendments to the record are neces- sary 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 provid- ing the Government with the opportunity 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 injunction should be delayed.

The judgment of the Court of Appeals for the Ninth Cir- cuit is vacated, and the case is remanded for further proceed- ings consistent with this opinion.

It is so ordered.

Per Curiam