Case: 3:17-cv-05329-WHA As of: 02/17/2020 08:03 PM PST 1 of 13
ADRMOP,APPEAL,REFDIS
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17−cv−05329−WHA

City Of San Jose v. Trump et al Assigned to: Hon. William Alsup Referred to: Magistrate Judge Sallie Kim Relate Case Cases: 3:17−cv−05211−WHA
3:17−cv−05235−WHA
3:17−cv−05813−WHA
3:17−cv−05380−WHA
Case in other court: USCA 9th Circuit, 18−15070 Cause: 28:1331 Fed. Question: Violation 5th & 8th Amendment
Plaintiff

Date Filed: 09/14/2017 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

City Of San Jose a municipal corporation

represented by Brian Danitz Cotchett, Pitre & McCarthy LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 650−697−6000 Fax: 650−697−0577 Email: bdanitz@cpmlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Richard Doyle Office of the City Attorney City of San Jose 200 East Santa Clara Street San Jose, Ca 95113−1905 (408) 535−1900 Fax: (408) 998−3131 Email: cao.main@sanjoseca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Theodore Berger Cotchett, Pitre & McCarthy, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 650−697−6000 Fax: 650−692−3606 Email: jberger@cpmlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy L. Fineman Cotchett, Pitre & McCarthy LLP 840 Malcolm Road Suite 200 Burlingame, CA 94010 650−697−6000 Email: nfineman@cpmlegal.com TERMINATED: 11/30/2017 LEAD ATTORNEY

Nora Valerie Frimann Office of the City Attorney, City of San Jose 200 East Santa Clara Street, 16th Floor San Jose, CA 95113−1905

Case: 3:17-cv-05329-WHA As of: 02/17/2020 08:03 PM PST 2 of 13
(408) 535−1900 Fax: (408) 998−3131 Email: cao.main@sanjoseca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamarah P. Prevost Cotchett Pitre McCarthy 840 Malcolm Road Burlingame, CA 94010 United Sta 650−697−6000 Email: tprevost@cpmlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump President of the United Staes, in his official capacity
Defendant Kirstjen Nielson In her official capacity as Acting Secretary of the Department of Homeland Security
Defendant United States of America

represented by Brad Prescott Rosenberg U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 202−514−3374 Fax: 202−616−8460 Email: brad.rosenberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate United States Department of Justice Civil Division 950 Pennsylvania Ave., NW Washington, DC 20530 202−514−2331 Email: brett.a.shumate@usdoj.gov TERMINATED: 04/11/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brad Prescott Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brad Prescott Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019

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Defendant an Diego Unified

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emma Leheny National Education Association 1201 16th Street N.W. Washington, DC 20036 (202) 822−7060 Fax: (202) 822−7033 Email: eleheny@nea.org ATTORNEY TO BE NOTICED

V. Appellee Sacramento City Unified School District
Amicus National Education Association Of The United States
Amicus Association of California School Administrators
Amicus Berkeley Unified School District
Amicus Moreno Valley Unified School District
Amicus San Diego Unified School District
Amicus West Contra Costa Unified School District
Amicus California Faculty Association
Amicus California Federation of Teachers

represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by

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Amicus California School Boards Association
Amicus California Teachers Association
Amicus Los Angeles County Superintendent of Schools
Amicus Los Angeles County Board of Education
Amicus Los Angeles Unified School District
Amicus Oakland Unified School District

Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/14/2017 09/14/2017 09/14/2017
09/14/2017

# Docket Text
1 COMPLAINT against Elaine C. Duke, Donald J. Trump, UNITED STATES OF AMERICA ( Filing fee $ 400, receipt number 0971−11714888.). Filed byCity Of San Jose. (Attachments: # 1 Civil Cover Sheet, # 2 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS)(Fineman, Nancy) (Filed on 9/14/2017) (Entered: 09/14/2017)
2 Proposed Summons. (Fineman, Nancy) (Filed on 9/14/2017) (Entered: 09/14/2017)
3 Case assigned to Magistrate Judge Susan van Keulen.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 9/28/2017. (haS, COURT STAFF) (Filed on 9/14/2017) (Entered: 09/14/2017)
4 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 12/12/2017. Initial Case Management Conference set for 12/19/2017 09:30 AM in Courtroom 6, 4th Floor, San Jose. (cv, COURT

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09/14/2017 09/15/2017
09/15/2017
09/18/2017 09/18/2017 09/18/2017
09/19/2017 09/19/2017
09/20/2017 09/20/2017 09/20/2017 09/20/2017 09/20/2017 09/20/2017 09/22/2017
09/22/2017

STAFF) (Filed on 9/14/2017) (Entered: 09/14/2017)
5 Summons Issued as to Elaine C. Duke, Donald J. Trump, United States of America, (cv, COURT STAFF) (Filed on 9/14/2017) (Entered: 09/14/2017)
6 ORDER OF RECUSAL. This Court recuses itself from hearing this matter. The Clerk of Court shall reassign this matter forthwith to another judge. Signed by Magistrate Judge Susan van Keulen on 9/15/2017. (ofr, COURT STAFF) (Filed on 9/15/2017) (Entered: 09/15/2017)
7 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Howard R. Lloyd for all further proceedings pursuant to Order of Recusal. Magistrate Judge Susan van Keulen no longer assigned to the case. (bwS, COURT STAFF) (Filed on 9/15/2017) (Entered: 09/15/2017)
8 NOTICE RE SEPTEMBER 21 CASE MANAGEMENT CONFERENCE Signed by Judge Alsup on 9/18/2017. (whalc1, COURT STAFF) (Filed on 9/18/2017) (Entered: 09/18/2017)
Set/Reset Hearing re 8 Order Initial Case Management Conference set for 9/21/2017 10:30 AM in Courtroom 8, 19th Floor, San Francisco. (tlS, COURT STAFF) (Filed on 9/18/2017) (Entered: 09/18/2017)
9 ***INCORRECT EVENT SELECTED WHEN POSTING DOCUMENT*** CERTIFICATE OF SERVICE by City Of San Jose of the Complaint (Fineman, Nancy) (Filed on 9/18/2017) Modified text on 9/19/2017 (dhmS, COURT STAFF). (Entered: 09/18/2017)
Electronic filing error. Incorrect event used. [err101]Please re−file in its entirety using correct event Summons Returned Executed. Re: 9 Certificate of Service filed by City Of San Jose (dhmS, COURT STAFF) (Filed on 9/19/2017) (Entered: 09/19/2017)
10 SUMMONS Returned Executed by City Of San Jose. Elaine C. Duke served on 9/18/2017, answer due 10/10/2017; Donald J. Trump served on 9/18/2017, answer due 10/10/2017; United States of America served on 9/18/2017, answer due 10/10/2017. (Fineman, Nancy) (Filed on 9/19/2017) (Entered: 09/19/2017)
11 NOTICE of Appearance by Brad Prescott Rosenberg (Rosenberg, Brad) (Filed on 9/20/2017) (Entered: 09/20/2017)
12 NOTICE of Appearance by Brett A. Shumate (Shumate, Brett) (Filed on 9/20/2017) (Entered: 09/20/2017)
13 ORDER RELATING CASES Signed by Judge Alsup on 9/20/2017. (whalc1, COURT STAFF) (Filed on 9/20/2017) (Entered: 09/20/2017)
Related cases: Create association to 3:17−cv−05211−WHA. (sxbS, COURT STAFF) (Filed on 9/20/2017) (Entered: 09/21/2017)
Related cases: Create association to 3:17−cv−05235−WHA. (sxbS, COURT STAFF) (Filed on 9/20/2017) (Entered: 09/21/2017)
Related cases: Create association to 3:17−cv−05380−WHA. (sxbS, COURT STAFF) (Filed on 9/20/2017) (Entered: 09/21/2017)
14 ORDER REASSIGNING CASE. Case reassigned to Hon. William Alsup for all further proceedings pursuant to Order Relating Cases. Magistrate Judge Howard R. Lloyd no longer assigned to the case. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras. (Attachments: # 1 Notice of Eligibility for Video Recording)(bwS, COURT STAFF) (Filed on 9/22/2017) (Entered: 09/22/2017)
15 CASE MANAGEMENT SCHEDULING ORDER FOR ALL DACA ACTIONS IN THIS DISTRICT: Bench Trial set for 2/5/2018 07:30 AM before Hon. William Alsup. Motion Hearing set for 12/20/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Pretrial Conference set for 1/24/2018 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup.. Signed by Judge Alsup on 9/22/2017. (whalc1, COURT STAFF) (Filed on

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09/22/2017 09/22/2017 09/22/2017
09/25/2017 09/25/2017 09/25/2017
09/26/2017 09/29/2017 09/29/2017 10/03/2017

9/22/2017) (Entered: 09/22/2017)
Set/Reset Hearing Tutorial Hearing set for 10/3/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco. (whasec, COURT STAFF) (Filed on 9/22/2017) (Entered: 09/22/2017)
16 CERTIFICATE OF SERVICE by City Of San Jose re 15 Case Management Scheduling Order, (Fineman, Nancy) (Filed on 9/22/2017) (Entered: 09/22/2017)
17 Transcript of Proceedings held on 9/21/17, before Judge William H. Alsup. Court Reporter Jo Ann Bryce, telephone number 510−910−5888, joann_bryce@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction after 90 days. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (45 in 3:17−cv−05211−WHA) Transcript Order ) Release of Transcript Restriction set for 12/21/2017. (jabS, COURTSTAFF) (Filed on 9/22/2017) (Entered: 09/22/2017)
18 FURTHER NOTICE RE TUTORIAL re (12 in 3:17−cv−05380−WHA) Case Management Scheduling Order, Signed by Judge Alsup on 9/25/2017. (whalc1, COURT STAFF) (Filed on 9/25/2017) (Entered: 09/25/2017)
19 NOTICE OF REFERRAL FOR DISCOVERY. Signed by Magistrate Judge Sallie Kim on 9/25/2017. (Attachments: # 1 Magistrate Judge Kim's Standing Order)(mklS, COURT STAFF) (Filed on 9/25/2017) (Entered: 09/25/2017)
20 Minute Entry for proceedings held before William Alsup: Initial Case Management Conference held on 9/21/2017. Motion(s) hearing set for 12/20/2017 at 8:00 AM. Tutorial set for 10/3/2017 at 8:00 AM. Final Pretrial Conference set for 1/24/2018 at 2:00 PM. Bench Trial set for 2/5/2018 at 7:30 AM. Case referred to Magistrate Sallie Kim for Discovery.Total Time in Court: 1:22. Court Reporter: Jo Ann Bryce. Plaintiff Attorney: Jeffrey Davidson; Alexander Berengaut; Alex Covington; Mark Lynch; James Zahradka; Nancy Fineman; Mark Rosenbaum; Ethan Dettmer. Defendant Attorney: Brad Rosenberg; Sara Winslow; Brett Shumate. Attachment: Civil Minutes. (tlS, COURT STAFF) (Date Filed: 9/25/2017) (Entered: 09/25/2017)
CASE REFERRED to Magistrate Judge Sallie Kim for Discovery (ahm, COURT STAFF) (Filed on 9/26/2017) (Entered: 09/26/2017)
21 STIPULATION WITH PROPOSED ORDER re 15 Case Management Scheduling Order, filed by Elaine C. Duke, Donald J. Trump, United States of America. (Rosenberg, Brad) (Filed on 9/29/2017) (Entered: 09/29/2017)
22 ORDER GRANTING STIPULATION REGARDING CASE MANAGEMENT ORDER by Judge William Alsup granting (57) Stipulation in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA(whalc1, COURT STAFF) (Filed on 9/29/2017) (Entered: 09/29/2017)
23 Minute Entry for proceedings held before Judge William Alsup: Tutorial Hearing held on 10/3/2017.
Total Time in Court: 2 Hours, 15 Minutes. Court Reporter: Belle Ball.
Plaintiffs' Attorneys: Regents: Jeffrey Davidson, Mark Lynch, Monica Almadani; Garcia: Mark Rosenbaum, Kelsey Helland, Ethan Dettmer, Luis Romero; City of San Jose: Nancy Fineman; State of CA: James Zahradka, Ronald Lee. Defendant's Attorneys: Brad Rosenberg, Jeffrey Robins. Also Present via Videoconference: District Judge Nicholas Garaufis
(This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Date Filed: 10/3/2017) (Entered: 10/03/2017)

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10/04/2017 10/05/2017
10/10/2017 10/16/2017

24 TRANSCRIPT ORDER for proceedings held on October 3, 2017 before Judge William Alsup by City Of San Jose, for Court Reporter Belle Ball. (Fineman, Nancy) (Filed on 10/4/2017) (Entered: 10/04/2017)
25 Transcript of Proceedings held on October 3, 2017, before Judge William H. Alsup. Court Reporter Belle Ball, CSR, CRR, RDR, telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (62 in 3:17−cv−05211−WHA) Transcript Order, (24 in 3:17−cv−05329−WHA) Transcript Order ) Release of Transcript Restriction set for 1/3/2018. (ballbb15S, COURT STAFF) (Filed on 10/5/2017) (Entered: 10/05/2017)
26 ORDER SHORTENING TIME FOR BRIEFING ON MOTION TO COMPLETE ADMINISTRATIVE RECORD by Judge William Alsup re 66 Motion to Shorten Time in case 3:17−cv−05211−WHA. Motion Hearing set for 10/16/2017 11:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA(whalc1, COURT STAFF) (Filed on 10/10/2017) Modified on 10/10/2017 (afmS, COURT STAFF). (Entered: 10/10/2017)
27 Minute Entry for proceedings held before Judge William Alsup:

Motion Hearing held on 10/16/2017 re (65 in 3:17−cv−05211−WHA) MOTION for an Order Directing Defendants to Complete the Administrative Record filed by UC Regents, Janet Napolitano. Written Order to issue.

Total Time in Court: 1:15. Court Reporter: Pamela Batalo.

Plaintiff Attorney: Jeffery Davidson (Regents)Plaintiff Attorney: James Zahradka (State of CA)Plaintiff Attorney: Nancy Fineman (City of San Jose)Plaintiff Attorney: Kevin Yea (Garcia) Defendant Attorney: Brad Rosenberg (all defendants).

10/16/2017 10/17/2017
10/17/2017

(This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Date Filed: 10/16/2017) (Entered: 10/16/2017)
28 ORDER RELATING CASE by Judge William Alsup granting (69) Motion to Relate Case in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA(whalc1, COURT STAFF) (Filed on 10/16/2017) (Entered: 10/16/2017)
29 Transcript of Proceedings held on 10/16/17, before Judge Alsup. Court Reporter Pamela A. Batalo, telephone number pamela_batalo@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (74 in 3:17−cv−05211−WHA) Transcript Order ) Redaction Request due 11/7/2017. Redacted Transcript Deadline set for 11/17/2017. Release of Transcript Restriction set for 1/16/2018. (Batalo, Pam) (Filed on 10/17/2017) (Entered: 10/17/2017)
30 ORDER RE MOTION TO COMPLETE ADMINISTRATIVE RECORD by Judge William Alsup granting in part and denying in part (65) Motion Complete Administrative Record in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/17/2017) (Entered: 10/17/2017)

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10/18/2017 10/19/2017
10/19/2017 10/19/2017
10/20/2017 10/20/2017 10/20/2017 10/23/2017 10/24/2017 10/24/2017 10/25/2017 10/25/2017
10/26/2017 10/27/2017

31 ORDER TO COMPILE SUPPLEMENT FORTHWITH re (12 in 3:17−cv−05813−WHA) Order on Motion for Miscellaneous Relief, Signed by Judge Alsup on 10/18/2017. (whalc1, COURT STAFF) (Filed on 10/18/2017) (Entered: 10/18/2017)
32 ORDER ADOPTING STIPULATED BRIEFING SCHEDULE FOR DEFENDANTS' MOTION TO STAY ALL PROCEEDINGS by Judge William Alsup granting (82) Stipulation in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
Terminate Hearing re (15 in 3:17−cv−05813−WHA) Order on Stipulation, (whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
33 ORDER RE MOTION TO STAY PROCEEDINGS by Judge William Alsup denying (81) Motion to Stay in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
34 NOTICE by Elaine C. Duke, Donald J. Trump, United States of America of Filing of Petition for Writ of Mandamus (Attachments: # 1 Petition for Writ of Mandamus)(Rosenberg, Brad) (Filed on 10/20/2017) (Entered: 10/20/2017)
38 USCA Case Number 17−72917 USCA 9th Circuit re Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 10/20/2017) (Entered: 10/24/2017)
39 ORDER of USCA re Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 10/20/2017) (Entered: 10/24/2017)
35 ANSWER BY DISTRICT COURT TO PETITION FOR WRIT OF MANDAMUS Signed by Judge Alsup on 10/23/2017. (whalc1, COURT STAFF) (Filed on 10/23/2017) (Entered: 10/23/2017)
36 ORDER by Magistrate Judge Sallie Kim granting (91) Unopposed Administrative Motion for Additional Pages for Joint Discovery Letter Brief in case 3:17−cv−05211−WHA. (mklS, COURT STAFF) (Filed on 10/24/2017) (Entered: 10/24/2017)
37 ORDER RE: DEPOSITION OF ACTING SECRETARY OF HOMELAND SECURITY DUKE by Magistrate Judge Sallie Kim (Re: (88) Discovery Letter Brief in case 3:17−cv−05211−WHA). (mklS, COURT STAFF) (Filed on 10/24/2017) (Entered: 10/24/2017)
40 FURTHER CASE MANAGEMENT ORDER RE MOTION SCHEDULE Signed by Judge Alsup on 10/25/2017. (whalc1, COURT STAFF) (Filed on 10/25/2017) (Entered: 10/25/2017)
41 ORDER GRANTING STIPULATION REGARDING AMICUS BRIEFING AS MODIFIED by Judge William Alsup granting as modified (101) Stipulation in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/25/2017) (Entered: 10/25/2017)
46 ORDER of USCA regarding oral arguments and amicus briefs as to (21 in 3:17−cv−05813−WHA, 38 in 3:17−cv−05329−WHA, 95 in 317−cv−05211−WHA, 47 in 3:17−cv−05235−WHA, 34 in 3:17−cv−05380−WHA) (sxbS, COURT STAFF) (Filed on 10/26/2017) (Entered: 11/03/2017)
42 ORDER GRANTING PLAINTIFFS' UNOPPOSED ADMINISTRATIVE MOTION TO AMEND PAGE LIMITS IN CONNECTION WITH MOTION FOR PROVISIONAL RELIEF by Judge William Alsup granting (103) Administrative Motion to alter page limits in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/27/2017) (Entered:

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10/31/2017 11/01/2017 11/01/2017
11/01/2017
11/08/2017 11/16/2017 11/20/2017 11/20/2017 11/20/2017 11/21/2017 11/21/2017 11/21/2017 11/21/2017

10/27/2017)
47 ORDER of USCA regarding amicus briefs as to (21 in 3:17−cv−05813−WHA, 38 in 3:17−cv−05329−WHA, 95 in 3:17−cv−05211−WHA, 47 in 3:17−cv−05235−WHA, 34 in 3:17−cv−05380−WHA) (sxbS, COURT STAFF) (Filed on 10/31/2017) (Entered: 11/03/2017)
43 PROTECTIVE ORDER by Judge William Alsup granting (115) Motion for Protective Order in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)
44 ADMINISTRATIVE MOTION Leave to File Amicus Brief filed by National Education Association Of The United States, Association of California School Administrators, Berkeley Unified School District, Moreno Valley Unified School District, an Diego Unified, San Diego Unified School District, West Contra Costa Unified School District, California Faculty Association, California Federation of Teachers, California School Boards Association, California Teachers Association, Los Angeles County Superintendent of Schools, Los Angeles County Board of Education, Los Angeles Unified School District, Oakland Unified School District, Sacramento City Unified School District. Responses due by 11/6/2017. (Attachments: # 1 Exhibit Amicus Curiae Brief)(Leheny, Emma) (Filed on 11/1/2017) (Entered: 11/01/2017)
45 ORDER GRANTING MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANTS by Judge William Alsup granting (110) Administrative Motion leave to file amicus curiae brief in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)
48 ORDER RE MOTION TO MAINTAIN ANONYMITY by Judge Alsup granting in part and denying in part (125) Administrative Motion maintain anonymity; granting in part and denying in part (126) Administrative Motion to File Under Seal in case 3:17−cv−05211−WHA. (whalc1, COURT STAFF) (Filed on 11/8/2017) (Entered: 11/08/2017)
49 ORDER TO FILE COMPLETED ADMINISTRATIVE RECORD AND PROPOSE SCHEDULE Signed by Judge Alsup on 11/16/2017. (whalc1, COURT STAFF) (Filed on 11/16/2017) (Entered: 11/16/2017)
50 TENTATIVE ORDER RE MOTIONS TO STAY DISCOVERY AND COMPLETION OF THE ADMINISTRATIVE RECORD Signed by Judge Alsup on 11/20/2017. (Attachments: # 1 Tentative Order)(whalc1, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)
51 NOTICE of Appearance by Justin Theodore Berger (Berger, Justin) (Filed on 11/20/2017) (Entered: 11/20/2017)
52 ONE−MONTH CONTINUANCE OF DUE DATE FOR AUGMENTED ADMINISTRATIVE RECORD AND TEMPORARY STAY OF DISCOVERY by Judge Alsup re (190) Motion to Stay; re (191) Motion to Stay; re (192) Stipulation in case 3:17−cv−05211−WHA. (whalc1, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)
53 ORDER of USCA denying petition (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)
54 ORDER of USCA Dismissing Motion for Stay filed by government. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)
55 ORDER of USCA regarding Motion for Stay. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)
56 Memorandum of USCA regarding Administrative Record. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)

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11/22/2017 11/29/2017 12/01/2017 12/06/2017 12/20/2017
12/21/2017
12/21/2017 12/21/2017 12/27/2017 01/09/2018 01/10/2018

57 ORDER of USCA denying Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)
58 NOTICE by City Of San Jose of Withdrawal of Counsel (Berger, Justin) (Filed on 11/29/2017) (Entered: 11/29/2017)
59 NOTICE by Elaine C. Duke, Donald J. Trump, United States of America of Filing of Petition for Writ of Mandamus and Application for a Stay in the United States Supreme Court (Attachments: # 1 Petition for a Writ of Mandamus, # 2 Application for a Stay)(Rosenberg, Brad) (Filed on 12/1/2017) (Entered: 12/01/2017)
60 NOTICE OF FILING OF STATEMENT OF DISTRICT COURT IN RESPONSE TO APPLICATION FOR A STAY Signed by Judge Alsup on 12/6/2017. (whalc1, COURT STAFF) (Filed on 12/6/2017) (Entered: 12/06/2017)
61 Minute Entry for proceedings held before Judge William Alsup:
Motion Hearing held on 12/20/2017 re 114 MOTION to Dismiss All N.D. Cal. DACA Cases and Memorandum in Support filed by Elaine Duke, United States Department of Homeland Security; 111 MOTION for Preliminary Injunction −− Plaintiffs' Motion for Provisional Relie filed by UC Regents, Janet Napolitano. Motions are submitted.
Total Time in Court: 3 Hours; 40 Minutes. Court Reporter: Lydia Zinn.
Plaintiff Attorneys: Jeffrey Davidson, Megan Crowley, Alexander Berengaut, Mark Lynch, Lanny Breuer, James Zahradka, Brian Danitz, Mark Rosenbaum, Ethan Dettmer, Eric Brown. Defendant Attorneys: Brad Rosenberg, Kate Bailey, Brett Shumate.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Date Filed: 12/20/2017) (Entered: 12/20/2017)
62 Transcript of Proceedings held on 12/20/2017, before Judge William Alsup. Court Reporter/Transcriber Lydia Zinn, telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (222 in 3:17−cv−05211−WHA) Transcript Order, (220 in 3:17−cv−05211−WHA) Transcript Order ) Redacted Transcript Deadline set for 1/22/2018. Release of Transcript Restriction set for 3/21/2018. (Zinn, Lydia) (Filed on 12/21/2017) (Entered: 12/21/2017)
63 PER CURIAM of Supreme Court of the United States on Petition for Writ of Mandamus vacating judgment of USCA and remanding case. (sxbS, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
64 STAY OF NOVEMBER 20 ORDER 197 . Signed by Judge Alsup on 12/21/2017. (whalc1, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
65 ORDER of USCA regarding Government's threshold arguments and certification for appeal (sxbS, COURT STAFF) (Filed on 12/27/2017) (Entered: 12/27/2017)
66 ORDER DENYING 114 FRCP 12(b)(1) DISMISSAL AND GRANTING 111 PROVISIONAL RELIEF (granting 227 ) by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 1/9/2018) (Entered: 01/09/2018)
67 CLERK'S NOTICE: Discovery Hearing set for 1/10/2018 10:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. Personal appearances are preferred, but given the short notice counsel may appear by telephone. Only one attorney per party to speak if appearing by telephone, although other attorneys for the same party may listen to the hearing. Attorneys wishing to participate by telephone shall contact the Court by email to SKCRD@cand.uscourts.gov to request the dial−in information. In the email, counsel shall identify which party they represent and the

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01/10/2018 01/10/2018 01/11/2018
01/12/2018 01/16/2018 01/22/2018 01/23/2018 01/26/2018
01/29/2018 01/31/2018

name(s) of the attorney(s) that will be appearing. The Court will issue a follow up order with specific topics to be addressed during the hearing. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/10/2018) (Entered: 01/10/2018)
68 CLERK'S NOTICE Correcting Date/Time of Discovery Hearing: Discovery Hearing set for 1/11/2018 10:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/10/2018) Modified on 1/10/2018 (mklS, COURT STAFF). (Entered: 01/10/2018)
69 ORDER REGARDING DISCOVERY HEARING ON 1/11/2018. Signed by Magistrate Judge Sallie Kim on 1/10/2018. (mklS, COURT STAFF) (Filed on 1/10/2018) (Entered: 01/10/2018)
70 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Discovery Hearing held on 1/11/2018. The Court and parties discuss the status of discovery. Further Discovery Hearing set for 1/30/2018 09:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. Defense counsel may appear by telephone. (FTR Time: 10:32−10:41.)
Plaintiff Attorney: Jeffrey Davidson; James Zahradka; Eric Brown; Justin Berger; Kelsey Helland. Defendant Attorney: Brad Rosenberg (by telephone).
(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 1/11/2018) (Entered: 01/11/2018)
71 ORDER GRANTING IN PART 114 DEFENDANTS' MOTION TO DISMISS UNDER FRCP 12(b)(6) by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 1/12/2018) (Entered: 01/12/2018)
72 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Kirstjen Nielson, Donald J. Trump, United States of America. Appeal of Order on Motion for Preliminary Injunction 66 , Order on Motion to Dismiss 71 (Appeal fee FEE WAIVED.) (Rosenberg, Brad) (Filed on 1/16/2018) (Entered: 01/16/2018)
73 CLERK'S NOTICE: The Discovery Hearing currently set for 1/30/2018 at 9:30 AM before Magistrate Judge Sallie Kim is vacated. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/22/2018) (Entered: 01/22/2018)
74 ORDER GRANTING (246) STIPULATION RE EXTENSION OF TIME TO RESPOND TO COMPLAINTS AND TO SEEK LEAVE TO FILE AMENDED COMPLAINTS by Judge William Alsup.(whalc1, COURT STAFF) (Filed on 1/23/2018) (Entered: 01/23/2018)
75 USCA Acknowledgment of Receipt of Permission to Appeal 18−80004 USCA 9th Circuit for (89 in 3:17−cv−05235−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17−cv−05211−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17−cv−05329−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17−cv−05380−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17−cv−05813−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump. (sxbS, COURT STAFF) (Filed on 1/26/2018) (Entered: 01/26/2018)
76 USCA Case Number 18−15070 USCA 9th Circuit for 72 Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump. (sxbS, COURT STAFF) (Filed on 1/29/2018) (Entered: 01/29/2018)
77 Judgment of Supreme Court of United States Washington DC re Writ of Mandamus (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)

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01/31/2018 01/31/2018 02/01/2018
02/01/2018
02/01/2018
02/01/2018 02/01/2018 02/01/2018 02/01/2018
02/22/2018 03/08/2018 03/19/2018 03/22/2018 04/04/2018 06/26/2018 11/08/2018

78 USCA Case Number 18−80007 USCA 9th Circuit for Acknowledgment of Receipt for Permission to Appeal. (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)
79 USCA Case Number 18−80008 USCA 9th Circuit acknowledgment receipt of Petition for Permission to Appeal. (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)
80 ORDER of USCA granting petition for permission to appeal as to (92 in 3:17−cv−05235−WHA, 251 in 3:17−cv−05211−WHA, 75 in 3:17−cv−05329−WHA, 69 in 3:17−cv−05380−WHA, 57 in 3:17−cv−05813−WHA) USCA Case Number 18−80004 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
81 ORDER of USCA granting petition for permission to appeal as to (253 in 3:17−cv−05211−WHA, 73 in 3:17−cv−05380−WHA, 60 in 3:17−cv−05813−WHA, 95 in 3:17−cv−05235−WHA, 78 in 3:17−cv−05329−WHA) USCA Case Number 18−80007 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
82 ORDER of USCA granting petition for permission to appeal as to (79 in 3:17−cv−05329−WHA, 96 in 3:17−cv−05235−WHA, 61 in 3:17−cv−05813−WHA, 74 in 3:17−cv−05380−WHA, 254 in 3:17−cv−05211−WHA) USCA Case Number 18−80008 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
83 USCA Case Number 18−15128 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
84 USCA Case Number 18−15133 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
85 USCA Case Number 18−15134 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
86 ORDER of Supreme Court of U.S. Washington DC re filing of petition for writ of certiorari as to (92 in 3:17−cv−05235−WHA, 251 in 3:17−cv−05211−WHA, 75 in 3:17−cv−05329−WHA, 69 in 3:17−cv−05380−WHA, 57 in 3:17−cv−05813−WHA) USCA Case Number,,, (62 in 3:17−cv−05813−WHA, 97 in 3:17−cv−05235−WHA, 75 in 3:17−cv−05380−WHA, 255 in 3:17−cv−05211−WHA, 80 in 3:17−cv−05329−WHA) USCA Order, (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
87 U.S. Supreme Court Receipt acknowledging Petition for Writ of Certiorari filed on 1/18/18 as No. 17−1003. (sxbS, COURT STAFF) (Filed on 2/22/2018) (Entered: 02/22/2018)
88 ORDER RE DEADLINE FOR PLAINTIFFS TO MOVE FOR LEAVE TO FILE AMENDED COMPLAINTS. Signed by Judge Alsup on 3/8/2018. (whalc1, COURT STAFF) (Filed on 3/8/2018) (Entered: 03/08/2018)
89 ORDER of USCA re motion and panel of Ninth Circuit Judges. (sxbS, COURT STAFF) (Filed on 3/19/2018) (Entered: 03/19/2018)
90 USCA Acknowledgment of Receipt for Permission to Appeal: Case Number 18−80037 USCA 9th Circuit (sxbS, COURT STAFF) (Filed on 3/22/2018) (Entered: 03/22/2018)
91 ORDER OF RECUSAL. Signed by Magistrate Judge Sallie Kim on 4/4/2018. (mklS, COURT STAFF) (Filed on 4/4/2018) (Entered: 04/04/2018)
92 ORDER REFERRING CASE TO MAGISTRATE JUDGE SALLIE KIM FOR DISCOVERY PURPOSES. Signed by Judge Alsup on 6/26/2018. (whalc1, COURT STAFF) (Filed on 6/26/2018) (Entered: 06/26/2018)
93 USCA JUDGMENT as to (89 in 3:17−cv−05235−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17−cv−05211−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17−cv−05329−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17−cv−05380−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54

Case: 3:17-cv-05329-WHA As of: 02/17/2020 08:03 PM PST 13 of 13

02/25/2019 04/11/2019

in 3:17−cv−05813−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump (ddkS, COURT STAFF) (Filed on 11/8/2018) (Entered: 11/21/2018)
94 MANDATE of USCA as to (89 in 3:17−cv−05235−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17−cv−05211−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17−cv−05329−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17−cv−05380−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17−cv−05813−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump (amgS, COURT STAFF) (Filed on 2/25/2019) (Entered: 02/27/2019)
95 MOTION to Withdraw as Attorney Brett A. Shumate filed by Kirstjen Nielson, Donald J. Trump, United States of America. Responses due by 4/25/2019. Replies due by 5/2/2019. (Attachments: # 1 Proposed Order)(Shumate, Brett) (Filed on 4/11/2019) (Entered: 04/11/2019)

 
 Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 1 of 31

1 JOSEPH W. COTCHETT (SBN 36324)
jcotchett@cpmlegal.com 2 NANCY L. FINEMAN (SBN 124870)
nfineman@cpmlegal.com 3 BRIAN DANITZ (SBN 247403)
bdanitz@cpmlegal.com 4 TAMARAH P. PREVOST (SBN 313422)
tprevost@cpmlegal.com 5 COTCHETT, PITRE & McCARTHY, LLP
San Francisco Airport Office Center 6 840 Malcolm Road, Suite 200
Burlingame, CA 94010 7 Telephone: (650) 697-6000
Facsimile: (650) 697-0577 8

RICHARD DOYLE (SBN 88625) 9 NORA FRIMANN (SBN 93249)

10

OFFICE OF THE CITY ATTORNEY 200 East Santa Clara Street, 16th Floor

11 San José, California 95113 Telephone: (408) 535-1900

12 Facsimile: (408) 998-3131

E-Mail Address: cao.main@sanJoséca.gov 13

14 Attorneys for Plaintiff the City of San Jose

15

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

18 CITY OF SAN JOSE, a municipal 19 corporation,

20

Plaintiff,

21

vs.

Case No.
COMPLAINT FOR:
1. VIOLATION OF FIFTH AMENDMENT EQUAL PROTECTION

22

DONALD J. TRUMP, President of the United States, in his official capacity,

2. VIOLATION OF 5 U.S.C. §§ 553 &

706(2)(D)

23 ELAINE C. DUKE in her official

24 capacity, and

25 the UNITED STATES OF AMERICA

26

Defendants.

27

28
Law Offices COTCHETT, PITRE & MCCARTHY, LLP

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 2 of 31

1 2
I. 3
II. 4
III. 5 6 7
IV. 8 9 10 11 12 13 14 15 16 17 18 19 20 21
V. 22
VI. 23

TABLE OF CONTENT
INTRODUCTION ...............................................................................................................1 JURISDICTION AND VENUE ..........................................................................................2 PARTIES .............................................................................................................................2
A. Plaintiff................................................................................................................2 B. Defendants...........................................................................................................3 FACTUAL ALLEGATIONS ..............................................................................................4 A. Immigrants Contribute to the Success of the United States and California
Cities ............................................................................................................4 B. In 2012, DACA Is Implemented ..................................................................5 C. DACA Has Provided 800,000 Young People Who Have Known No Other
Country than the United States a Chance to Attend College and/or Work..7 D. San Jose and Silicon Valley Have Benefitted From DACA........................7 E. While President Trump Has Been Ant-Immigrant, He Has Been Supportive
of DACA Recipients ....................................................................................8 1. Anti-Immigrant Statements by the President and His
Administration ...................................................................................8 2. Despite His Anti-Immigration Rhetoric, Trump Has Demonstrated
His Support of DACA……………………………………………10 F. The Rescission of DACA...........................................................................11 G. San Jose Has Taken Action to Try to Help Its Immigrant Residents, But
Has Limited Ability to Effectuate Change, Except With this Lawsuit ......11 H. The Rescission of DACA Has Harmed San Jose.......................................12 CLAIMS FOR RELIEF .....................................................................................................14 PRAYER FOR RELIEF ....................................................................................................15

24

25

26

27

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 3 of 31

1 I. INTRODUCTION

2

1. For the last five years, young people who have lived in the United States since

3 they were children, even though they were born in another country, have had the right to live,

4 work and attend college if they met stringent requirements as set forth by the Deferred Action

5 for Childhood Arrivals (“DACA”). Exhibit 1. The success of these DREAMers, as they are

6 known, has been an incredible story. About 800,000 people who otherwise would not have had

7 the opportunity to attend college or work have now had that ability, thus enriching the lives of

8 themselves, their families, and their communities. Under DACA, Plaintiff, the City of San Jose

9 (“San Jose”) has been able to hire these DACA recipients, which has benefited the cities and

10 their residents.

11

2. During the 2016 election campaign, rhetoric about immigration became nasty.

12 One of the candidates who made extremely outrageous and false statements about immigrants

13 was defendant Donald J. Trump as he ran for the office of President. After he was elected and

14 sworn into office, President Trump’s anti-immigrant rhetoric continued. Both he and senior

15 members of this administration have made anti-immigrant statements.

16

3. Yet, throughout the campaign and President Trump’s presidency, he has made

17 positive and reassuring comments about DACA and the DREAMers. On April 24, 2017 in an

18 interview with the Associated Press, for example, President Trump told undocumented

19 immigrants who were brought to the United States as children that they could rest easy.

20

AP: A lot of the dreamers have been hoping to hear something from you. I don't want

21

to give them the wrong message with this.

22

TRUMP: Here is what they can hear: The dreamers should rest easy. OK? I'll give

23

you that. The dreamers should rest easy....

24

4. President Trump’s stated opinion is shared by most Americans. Since the United

25 States is a land of immigrants, most Americans realize the importance of immigrants to this

26 country.

27

5. Despite President Trump’s promises to DREAMers, he broke his promise. He

28
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directed his Attorney General to make an announcement on September 5, 2017, that DACA

_____________________________________________________________________________

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

1

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 4 of 31

1 would be rescinded, Exhibit 2 and then Defendant Elaine C. Duke (“Secretary Duke”) as the

2 Acting Secretary of the Department of Homeland Security, issued a memorandum that rescinded

3 DACA, although it deferred rescission for six months. Exhibit 3. Secretary Duke’s

4 memorandum, contrary to law, was issued without providing notice of the change and an

5 opportunity to be heard. The reasons for the issuance were contrary to the facts, and arbitrary

6 and capricious.

7

6. As a result of Defendants’ actions, the lives of the DACA recipients, over a

8 quarter of whom live in California, have been sent into upheaval. Fear and uncertainty have

9 invaded their lives. Not only have they been injured, but so too has San Jose.

10 II. JURISDICTION AND VENUE

11

7. The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1346. This Court has

12 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202 et

13 seq.

14

8. Venue properly lies within the Northern District of California because Plaintiff,

15 the City of San Jose, is a public entity in this judicial district and a substantial part of the events

16 or omissions giving rise to this action will occur or have occurred in this District. 28 U.S.C. §

17 1391(e).

18 III. PARTIES

19

A. Plaintiff

20

9. Plaintiff San Jose is a municipal corporation, organized as a Charter City under

21 the California Constitution and the laws of the State of California and is located in the County of

22 Santa Clara. It is the tenth largest city in the United States. San Jose has always been a place

23 for immigrants with almost 40% of its current population having been born in another country.

24 San Jose, which had been home to the Ohlone Indians for hundreds of years, was founded by

25 Spain on November 29, 1777, as El Pueblo de San Jose de Guadalupe. In 1821, San Jose

26 became part of Mexico. After the Treaty of Guadalupe Hidalgo ceded California to the United

27 States at the end of the Mexican-American War in 1848, San Jose became its first incorporated

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U.S. city.

_____________________________________________________________________________

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

2

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 5 of 31

1

10. San Jose is bringing this action on its own behalf and on the behalf of its

2 employees who are DACA recipients. As described below, San Jose has suffered its own injury

3 in fact. It also has third party standing to bring this action on behalf of its employees because

4 San Jose has a concrete interest in the outcome of the dispute; San Jose has a close relationship

5 with its employees, whose rights it is asserting, and there is a hindrance to the employees to

6 protect their own interests. Powers v. Ohio, 499 U.S. 400, 410-11, (1991); Singleton v. Wulff,

7 428 U.S. 106, 113-16 (1976); Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56,

8 62 (9th Cir. 1994). Where here, San Jose is asserting the same right, to allow DACA recipient

9 employees to have the right to legally work for San Jose, San Jose’s and its employees rights are

10 inextricably bound up, which satisfies the requirement that San Jose’s interest is sufficiently

11 aligned with that of its employees. Viceroy Gold Corp. v. Aubry, 75 F.3d 482, 488-89 (9th Cir.

12 1996). The fact that the employees are undocumented immigrants with fear of provoking the

13 attention of the immigration authorities or creating other legal risks satisfies the requirement that

14 there is a hindrance to San Jose’s employees protecting their own interests, especially in light of

15 Defendants’ demonstrated hostility to them. Young Apartments, Inc. v. Town of Jupiter, 529

16 F.3d 1027, 1044 (11th Cir. 2008).

17

B. Defendants

18

11. Defendant Donald J. Trump has been since January 20, 2017, the President of

19 the United States. He is sued in his official capacity. As a candidate, he railed against

20 immigrants. When he announced his candidacy in June 2015, for example, he stated: “The U.S.

21 has become a dumping ground for everybody else’s problems. Thank you. It’s true, and these

22 are the best and the finest. When Mexico sends its people, they’re not sending their best.

23 They’re not sending you. They’re not sending you. They’re sending people that have lots of

24 problems, and they’re bringing those problems to us. They’re bringing drugs. They’re bringing

25 crime. They’re rapists. And some, I assume, are good people.” There was no factual support

26 for this statement. Despite his animus towards immigrants, he has consistently indicated his

27 support for DACA, including tweeting on September 7, 2017, after DACA was rescinded, that

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_____________________________________________________________________________

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

3

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 6 of 31

1 “For all those (DACA) that are concerned about status during the 6 month period, you have

2 nothing to worry about – No action!”

3

12. Defendant Elaine C. Duke is the acting Secretary of the Department of

4 Homeland Security, a cabinet department of the United States government with the primary

5 mission of securing borders of the United States. Acting Secretary Duke issued the

6 memorandum rescinding DACA, and she and the Department of Homeland Security are

7 responsible for implementing the rescission of DACA.

8

13. Defendant United States of America is sued under 28 U.S.C. § 1346.

9 IV. FACTUAL ALLEGATIONS

10

14. The Statue of Liberty has stood as a welcoming beacon of hope and inspiration to

11 the millions of immigrants who have come to the United States through New York. Inscribed on

12 the statue are the stirring words of Emma Lazarus to: “Give me your tired, your poor, your

13 huddled masses yearning to breathe free.”

14

15. The reality has been far different than the Statue of Liberty’s inscription as some

15 groups in the United States have, throughout the nation’s history, tried to limit citizenship to

16 groups of people some found undesirable: Irish, Italians, Jews, Chinese, Mexicans and the list

17 goes on. Yet, most of the immigrants who have come to the United States simply want to make

18 a better life for themselves and their families and to fit in to their new country. Our country

19 would not be the greatest country in the world without the diversity of its citizenship achieved

20 through immigration.

21

A. Immigrants Contribute to the Success of the United States and California

Cities 22

23

16. Studies demonstrate the positive impact immigrants, even undocumented

24 immigrants, have on the United States. In April of 2016, the U.S. Chamber of Commerce

25 published a report entitled Immigration Myths and Faces,

26 www.uschamber.com/reports/immigration-myths. The report demonstrates that most common

27 negative contentions regarding immigrants are false. For example, with citation to evidence, the

28
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Chamber of Commerce demonstrates that immigrants do not take away jobs from U.S. citizens,

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 7 of 31

1 do not drive down the wages of the U.S. workers, but to the contrary, immigrants are necessary

2 for the U.S. economy. The Chamber also demonstrates that immigrants, even undocumented

3 immigrants, pay taxes. Undocumented immigrants are not eligible for federal public benefit

4 programs like Social Security, Medicaid, Medicare, and food stamps. The Chamber report

5 demonstrates that undocumented immigrants do not commit more crime than citizens. FBI data

6 demonstrates that as the number of undocumented immigrants tripled from 1990, violent crime

7 declined 48% and property crime declined 41%. A report from the conservative Americas

8 Majority Foundation found that crime rates are lowest in states with the highest immigration

9 growth rates. Immigrants are less likely than people born in the United States to commit crimes

10 or be incarcerated.

11

17. San Jose has been an extremely diverse region since the mid-1800s, which has

12 led to immigrants gravitating to such areas where there are already established immigrant

13 communities. Waves of immigrants, from China and Mexico, Vietnam, India, and Northern

14 Europe, have played a fundamental role in the creation of three profoundly different industries:

15 first mining, then agriculture, and finally technology in San Jose and the Silicon Valley.

16 http://www.sanjoseca.gov/DocumentCenter/View/19862.

17

B. In 2012, DACA Is Implemented

18

18. Throughout the later part of the last century and the first part of this century,

19 politicians could not agree on a comprehensive immigration policy. Immigrants who would

20 have had a clear path to citizenship in the past found citizenship almost impossible to achieve.

21 Yet, immigrants who had no hope in their country of birth came to the United States without

22 documentation for a better life. In the process, they have enriched our country. Many of these

23 immigrants brought their entire families, including their young children.

24

19. By 2012, there were millions of residents who came here as children, but they did

25 not have documentation to remain in this country. As Congress stalled in enacting any

26 meaningful immigration reform, there was a groundswell to protect these young people from

27 deportation and allow them to live productive lives to enrich themselves, their families and their

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adopted country.

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 8 of 31

1

20. In June of 2012, President Barack Obama, through an Executive Order, enacted

2 DACA. He stated that he believed it was “the right thing to do” to protect young people who do

3 not know any country but America. On June 15, 2012, then Secretary of Homeland Security

4 Janet Napolitano issued a memorandum establishing the DACA program. Exhibit 1. DACA is

5 in essence a deferred prosecution agreement.

6

21. The 2012 DACA Memorandum established that an applicant would be

7 considered for an exercise of prosecutorial discretion only by satisfying each of the following

8 criteria:

9

 came to the United States under the age of sixteen;

10

 had continuously resided in the United States for at least five years

11

preceding the date of the memorandum and is present in the United States

12

on the date of the memorandum;

13

 was currently in school, had graduated from high school, had obtained a

14

general education development certificate, or was an honorably

15

discharged veteran of the Coast Guard or Armed Forces of the United

16

States;

17

 had not been convicted of a felony offense, a significant misdemeanor

18

offense, multiple misdemeanor offenses, or otherwise poses a threat to

19

national security or public safety; and

20

 was not above the age of thirty.

21

22. In addition to simply being eligible for this program, undocumented immigrants

22 must also pay a $495 application fee, submit several forms, and produce documents showing

23 they meet the requirements. Moreover, if a DACA qualifying immigrant wants to travel abroad

24 there is an additional fee and application requirement required. Those applying are also vetted

25 for any criminal history or threat to national security and must be students or have completed

26 school or military service. If approved, action to deport them is deferred for two years, along

27 with the opportunity to renew, along with gaining eligibility for basics like a driving license,

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college enrollment or a work permit.

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 9 of 31

1

23. In exchange for DACA applicants providing sensitive and private information

2 regarding their entire lives, the United States government promised to keep the information

3 confidential and not to use it, except in limited circumstances, for any purposes except for

4 DACA purposes.

5

C. DACA Has Provided 800,000 Young People Who Have Known No Other

6

Country than the United States a Chance to Attend College and/or Work

7

24. The rewards of DACA have been enormous, not only to the immigrants who

8 came to this country as children, but to the nation. First-generation immigrants who enter the

9 United States as children tend to pay, on average, more in taxes over their lifetimes than they

10 receive in benefits, regardless of their education level. DACA recipients end up contributing

11 more than the average, because they are not eligible for any federal means-tested welfare: cash

12 assistance, food stamps, Medicaid, health-care tax credits or anything else.

13

25. Moreover, DACA recipients also are better educated than the average immigrant.

14 Applicants must have at least a high school degree to enter the program. An additional 36

15 percent of DACA recipients who are older than 25 have a bachelor’s degree, and an additional

16 32 percent are pursuing a bachelor’s degree.

17

26. Further, while studies show that undocumented immigrants are much less likely

18 to end up in prison, this fact is especially true for DACA recipients since applicants must also

19 pass a background check, indicating even lower levels of criminal behavior than the average

20 American citizen.

21

27. DACA has been a success as it has allowed over 800,000 recipients to work and

22 go to college in the United States thus enriching our economy and security.

23

D. San Jose and Silicon Valley Have Benefitted From DACA

24

28. For San Jose, the ability to hire DACA recipients has been extremely beneficial.

25 San Jose, like the rest of the Silicon Valley, has the need for a skilled work force.

26 Unemployment in Santa Clara County is low and competition for employees is fierce. When

27 DACA was enacted, San Jose was able to hire DACA grantees. San Jose spent time and

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resources training these employees and they hold jobs vital to the operation of San Jose.

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 10 of 31

1

29. San Jose is also home to tech companies, like Cisco and Adobe, who need skilled

2 workers. These companies also hired DACA recipients as did other Silicon Valley companies,

3 like Apple, Facebook, and Google, and many employees live in San Jose.

4

E. While President Trump Has Been Ant-Immigrant, He Has Been Supportive

of DACA Recipients 5

1. Anti-Immigrant Statements by the President and His Administration 6

7

30. Donald Trump during his campaign for President and since becoming President

8 has demonstrated an animus to immigrants. His administration, especially people in the

9 Department of Justice and Department of Homeland Security, has been just as anti-immigrant as

10 the President. Their statements demonstrate this discrimination.

11

31. Candidate Trump’s statements against immigrants were bombastic and incorrect.

12 For example, Trump repeatedly denigrated Mexican immigrants in particular, even comparing

13 them to rapists in his presidential bid announcement “When Mexico send its people, they’re not

14 sending their best. They’re not sending you. They’re not sending you. They’re sending people

15 that have lots of problems and they’re bringing those problems with us. They’re bringing drugs.

16 They’re bringing crime. They’re rapists. And some, I assume are good people.”

17 (https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trump-

18 announces-a-presidential-bid/?utm_term=.f6c79452d595)

19

32. During the first Republican presidential debate, candidate Trump doubled down

20 on his disparaging thoughts about Mexican immigrants, claiming that “The Mexican

21 government is much smarter, much sharper, much more cunning. And they send the bad ones

22 over because they don’t want to pay for them. They don’t want to take care of them.”

23 (https://www.nbcnews.com/news/latino/trump-claims-debate-mexico-sends-bad-ones-u-s-

24 n405661)

25

33. During another presidential debate in October 2016, candidate Trump once again

26 broadly assaulted immigrant families and communities with his views on immigration by

27 declaring “We have some bad hombres here and we’re going to get them out.”

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 11 of 31

1 (https:www.cnce.com/2016/10/19/trump-we-have-some-bad-hombres-and-were-going-to-get-

2 them-out.html)

3

34. After becoming President, President Trump’s statements have not become

4 Presidential, but continue to be bombastic and incorrect. For example, President Trump again

5 negatively referred to Mexicans as ‘hombres’ in a phone call with Mexico’s President,

6 condemning these immigrants by saying “You have some pretty tough hombres in Mexico that

7 you may need help with, and we are willing to help you with that big-league. But they have to

8 be knocked out and you have not done a good job of knocking them out.”

9 (http://www.cnn.com/2017/08/09/politics/best-lines-trump-mexico-australia-call/index.html)

10

35. President Trump and his administration further clarified their stance on

11 immigration, as Immigration and Customs Enforcement Acting Director Thomas Homan

12 testified that “every immigrant in this country without papers should be uncomfortable. You

13 should look over your shoulder. And you need to be worried.” These sentiments were once

14 again repeated in an interview later that week, when Homan stated that “Trump and his

15 administration have made clear that any undocumented immigrant could be arrested and face

16 deportation proceedings at any time, unless they have current and valid protection under

17 DACA.” (http://www.cnn.com/2017/06/16/politics/ice-immigrants-should-be-afraid-

18 homan/index.html)

19

36. United States Attorney General Jeff Sessions further reiterated these sentiments

20 coming from the Trump administration as he responded to immigration on Fox News in April

21 2017 by stating “Everybody in the country illegally is subject to being deported, so people come

22 here and they stay here a few years and somehow they think they are not subject to being

23 deported – well, they are. The policy is that if people are here unlawfully, they’re subject to

24 being deported. Our priority is clear… we can’t promise people who are here unlawfully that

25 they’re not going to be deported.” (http://www.foxnews.com/polticis/2017/04/19/sessions-

26 defends-immigration-policies-after-reported-dreamer-deportation.html).

27

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 12 of 31

1

2. Despite His Anti-Immigration Rhetoric, Trump Has Demonstrated

His Support of DACA 2

3

37. Even as he has railed at immigrants, President Trump has repeatedly stated his

4 support for DACA recipients. For example, in an interview with TIME magazine on the

5 campaign trail in December 2016, President Trump signaled that he could find a way to

6 accommodate the DREAMers “We’re going to work something out that’s going to make people

7 happy and proud. They got brought here at a very young age, they’ve worked here, they’ve

8 gone to school here. Some were good students. Some have wonderful jobs. And they’re in

9 never-never land because they don’t know what’s going to happen.” (http://time.com/time-

10 person-of-the-year-2016-donald-trump/?iid=buttonrecirc)

11

38. President Trump made statements in an interview with Fox & Friends on January

12 18, 2017, promising “It’s a plan that’s going to be very firm, but it’s going to have a lot of heart.

13 And we’re going to be looking into that situation…. That’s a very tough situation, but I think

14 they’re going to end up being very happy.” (http://wwwpolitico.com/story/2017/01/trump-

15 immigration-plan-233748)

16

39. President Trump reiterated this position the next week in an interview with David

17 Muir of ABC News, claiming that “[DACA grantees] shouldn’t be very worried. I do have a big

18 heart. We’re going to take care of everybody.” (http://abcnews.go.com/Politics/transcript-abc-

19 news-anchor-david-muir-interviews-president/story?id=45047602)

20

40. At a press conference in February of 2017, President Trump announced “We’re

21 going to show great heart… you have some absolutely incredible kids – I would say mostly.

22 They were brought here in such a way. It’s a very – it’s a very very tough subject. We are

23 going to deal with DACA with heart. I have to deal with a lot of politicians, don’t forget. And I

24 have to convince them that what I’m saying is, is right… But the DACA situation is a very very

25 – it’s a very difficult thing for me because you know, I love these kids. I love kids. I have kids

26 and grandkids and I find it very, very hard doing what the law says exactly to do.”

27 (https://www.whitehouse.gov/the-press-office/2017/02/16/remarks-president-trump-press-

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conference)

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 13 of 31

1

41. In an Associated Press interview in April of 2017, President Trump said his

2 administration is “not after the dreamers, we are after the criminals” and that “The dreamers

3 should rest easy” since his Administration’s policy is not to deport DACA grantees.

4 (https//apnews.com/79f2c79805f14c3f8ac878c5df21cdfd/Trump-tells-‘dreamers’-to-rest-

5 easy,%20-targets-criminaks)

6

42. Even in a written statement issued shortly after the Attorney General, Jeff

7 Sessions, announced the policy to terminate DACA, President Trump declared “I do not favor

8 punishing children, most of whom are now adults, for the actions of their parents. But we must

9 also recognize that we are [a] nation of opportunity because we are a nation of laws.”

10 (http://deadline.com/2017/09/donald-trump-daca-statement-punishing-children-1202161542/)

11

43. In addition to his written statement after Secretary Sessions’ announcement

12 terminating DACA, President Trump also tweeted that he “will revisit this issue!” if DACA was

13 not legalized by Congress in the allotted 6 month time span. (https://twitter.com/real Donald

14 Trump)

15

F. The Rescission of DACA

16

44. On September 5, 2017, President Trump, through Attorney General Sessions

17 announced the rescission of DACA. Exhibit 2. On the same day, Elaine Duke, the Acting

18 Secretary of the Department of Homeland Security, issued a memorandum rescinding DACA.

19 Exhibit 3. The memo was issued without compliance with the Administrative Procedures Act.

20 There was no notification that there was going to be a change in DACA, no notice to be heard,

21 and no factual findings or analysis to demonstrate that DACA should be rescinded.

22

G. San Jose Has Taken Action to Try to Help Its Immigrant Residents, But Has

Limited Ability to Effectuate Change, Except With this Lawsuit 23

24

45. When Donald Trump was elected President, residents of San Jose were

25 concerned about the President-elect’s immigration positions. In response, in January of 2017,

26 the City Council, approved a plan proposed by Mayor Sam Liccardo to educate immigrants

27 about their rights, helping schools with “safety plans,” and allowing churches to provide

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 14 of 31

1 sanctuary to undocumented residents if needed. The plan also created “safe spaces” in city-

2 owned facilities, such as libraries, to provide pro-bono legal services.

3

46. In response to the Defendants’ rescission of DACA, San Jose confirmed its

4 support of its immigrant residents and DACA recipients specifically. Mayor Sam Liccardo, for

5 example, issued the following statement:

6

The Attorney Generals announcement of the Trump Administration's rescission

7

of DACA abandons 800,000 of America's hardest-working, most patriotic residents.

Punting the issue to Congress, without any affirmative leadership to enact a legislative

8

solution, amounts to a cowardly cop-out, placing the futures of these young women and

men in serious jeopardy. 9

10

To San Jose's tens of thousands of DREAMers, we reiterate: “We've got your back.” I will seek to challenge the Administration's actions in court, after consulting with

11

our Council and City Attorney regarding our options in the week ahead.

12

History will not forgive Donald Trump for abandoning our DREAMers.

13

47. Santa Clara County Board of Supervisor’s Chair Dave Cortese stated: “Trump’s

14 plan to eliminate DACA is by far his most callous attempt as of yet. The lives, dreams, and

15 futures of thousands of DACA recipients are not a bargaining chip for this Administration to

16 play with. I remain committed to them and to their cause. I urge every DREAMer out there to 17 remain resilient and hopeful. Because together, we will rise.”

18

48. The Silicon Valley Organization, stated through its Executive Vice President:

19 "Not only is the rollback of DACA immoral, but it is also terrible for America's competitive

20 economic advantage. Our economic strength is our diversity; it is our greatest asset and our key

21 difference maker. To put 800,000 Americans, whose sole 'infraction' was arriving here as

22 children, on a path to lose citizenship will upend a large portion of this key strength. Rescinding

23 DACA sends the message that America's door to opportunity is slammed tighter, and that is not

24 the message that Silicon Valley business leaders want our government to send to the world at a

25 time when expanding opportunity is the key to long-term innovative success."

26

H. The Rescission of DACA Has Harmed San Jose

27

49. The rescission of DACA has already had and will continue to have an impact, not

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only on the lives of the DACA recipients, but on San Jose who has suffered a concrete and

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 15 of 31

1 specific injury by the rescission. Based upon the rescission of DACA, San Jose has had to take

2 steps to deal with the fact that starting on March 5, 2018, the date that the DACA rescission goes

3 into effect, it will lose employees, who are DACA recipients. In order for an employer to hire

4 an employee, the employer must confirm that the employee has the legal right to work in the

5 United States. See 8 C.F.R. § 274A.1 et seq. Cities who employ people without the right to

6 work face steep penalties and criminal penalties. However, it is also illegal for the cities to

7 terminate employees because of their nationality or immigration status. Thus San Jose is facing

8 the uncertainty of not knowing whether they will be able to continue to retain these valuable

9 employees in their work force. With the rescission of DACA, the DACA recipients will be

10 losing their right to work for San Jose. In order for San Jose to end the employment relationship

11 with an employee and to make sure that there is a smooth transition without the loss of city

12 services, San Jose must start planning now. Accordingly, even though the DACA rescission

13 allows DACA recipients to work until March 5, 2018, San Jose has not been able to wait until

14 then to make plans to have this change in work force. It has expended and will continue to

15 extend time and resources to react to this loss of experienced employees.

16

50. The acts of Defendants have decreased the efficiency of the work performed by

17 San Jose. The impact of the DACA rescission on DACA recipients has been catastrophic as

18 they face a future of uncertainty and fear. San Jose has had to expend time and resources to deal

19 with the loss of productivity and employee morale because of the rescission of DACA, which is

20 another injury. FPL Food, LLC v. United States Dep't of Agric., 671 F. Supp. 2d 1339, 1358

21 (S.D. Ga. 2009).

22

51. Additionally, because of the taxes that DACA recipients pay, San Jose is facing

23 the loss of tax revenues. It has had to start expending time and resources to deal with this loss of

24 funds.

25

26

27 ///

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///

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1 V. CLAIMS FOR RELIEF

2

(All Claims Are Against All Defendants)

3

FIRST CLAIM FOR RELIEF

4

(Violation of Fifth Amendment - Equal Protection)

5

52. San Jose repeats and incorporates by reference each allegation of the prior

6 paragraphs as if fully set forth herein.

7

53. The Due Process Clause of the Fifth Amendment of the United States

8 Constitution prohibits the federal government from denying equal protection of the laws.

9

54. As set forth above, Defendants’ actions target individuals for discriminatory

10 treatment based on their national origin, without lawful justification. Defendants’ actions were

11 motivated, at least in part, by a discriminatory intent to harm a particular group and treat them

12 differently under the law.

13

55. Defendants’ discriminatory actions cannot be sufficiently justified by federal

14 interests.

15

56. Through their actions as set forth above, Defendants have violated the equal

16 protection guarantee of the Fifth Amendment.

17

57. Defendants' actions has caused and continues to cause ongoing harm to San Jose

18 including their DACA employees, as hereinbefore described.

19

58. The City of San Jose seeks a declaration that the rescission of DACA is

20 unconstitutional and a temporary, preliminary, and permanent injunction enjoining the rescission

21 of DACA and enjoining the deportation of any DACA recipient.

22

WHEREFORE, San Jose prays for relief as hereinafter set forth.

23

SECOND CLAIM FOR RELIEF

24

(Violation of 5 U.S.C. §§ 553 & 706(2)(D))

25

59. San Jose repeats and incorporates by reference each allegation of the prior

26 paragraphs as if fully set forth herein.

27

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 17 of 31

1

60. DACCA is a federal rule and therefore, before rescinding DACA, Defendants

2 were required to comply with the Administrative Procedure Act, which requires that federal

3 agencies go through a process of notice and comment before repealing any substantive rule.

4 5 U.S.C. § 553.

5

61. By rescinding DACA without providing proper notice and an opportunity to

6 comment, Defendants have violated 5 U.S.C. § 706(2)(D) because the rescission was done

7 without proper observance of the procedure of law.

8

62. Even if Defendants believed that DACA itself was defective for not complying

9 with the Administrative Procedure Act, which it was not, Defendants were required to comply

10 with the Administrative Procedure Act. Consumer Energy Council v. Fed. Energy Regulatory

11 Com., 673 F.2d 425, 447 and n. 79 (D.C. Cir. 1982); Hou Ching Chow v. Attorney General, 362

12 F. Supp. 1288 (D.D.C. 1973).

13

63. Accordingly, San Jose seeks a declaration that Defendants’ actions violate

14 5 U.S.C. § 553 and § 706 and finding that the rescission of DACA is contrary to law. San Jose

15 also seeks a temporary preliminary and permanent injunction enjoining the rescission of DACA

16 and enjoining the deportation of any DACA recipient.

17

WHEREFORE, San Jose prays for relief as hereinafter set forth

18 VI. PRAYER FOR RELIEF

19

Wherefore, San Jose prays for the following relief:

20

1. A declaration that Defendants’ action are unconstitutional and/or violate 5 U.S.C.

21 §§ 553 and 706 and finding that the rescission of DACA is contrary to law;

22

2. Enjoin Defendants from rescinding the DACA program and enjoin Defendants from

23 taking any steps to deport any DACA recipients

24

25

26

27 ///

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///

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 18 of 31

1

3. The costs of bringing this suit, including reasonable attorneys’ fees; and

2

4. All other relief to which San Jose may be entitled at law or in equity.

3 Dated: September 14, 2017

COTCHETT, PITRE & McCARTHY, LLP

4 By: /s/ Joseph W. Cotchett
5

6

JOSEPH W. COTCHETT

7

OFFICE OF THE CITY ATTORNEY

8
By: /s/ Richard Doyle 9

10

RICHARD DOYLE

11

Attorneys for Plaintiff City of San Jose

12

13

ATTESTATION OF FILING

14

I, Nancy L. Fineman, hereby attest, pursuant to Northern District of California, Local

15

Rule 5-1(i)(3) that concurrence to the filing of this document has been obtained from each

16

signatory hereto.

17

/s/ Nancy L. Fineman

18

NANCY L. FINEMAN

19

Attorney for Plaintiff City of San Jose

20

21

22

23

24

25

26

27

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Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 19 of 31
Exhibit 1

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 20 of 31
Secretary
U.S. Department of Homeland Security Washington, DC 20528
Homeland Security

June 15, 2012

MEMORANDUM FOR:

David V. Aguilar Acting Commissioner, U.S. Customs and Border Protection

Alejandro Mayorkas Director, U.S. Citizenship and Immigration Services

FROM:

John Morton Director, U.S. Immigration and Customs Enforcement
/J ~ Janet Napolitano {/ J-- 1
Secretary of HomeJJ/ntr8'ecurfty /

SUBJECT:

Exercising Proset¢orial Discretion with Respect to Individuals Who Came to thei.Jnited States as Children

By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation's immigration laws against certain young people who were brought to this country as children and know only this country as home. As a general matter, these individuals lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.

The following criteria should be satisfied before an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum:

• came to the United States under the age of sixteen; • has continuously resided in the United States for a least five years preceding the date of
this memorandum and is present in the United States on the date of this memorandum; • is currently in school, has graduated from high school, has obtained a general education
development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces ofthe United States; • has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and • is not above the age of thirty.

www.dhs.gov

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 21 of 31
Our Nation' s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here.
As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.
1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS):
• With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
• USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear.
2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria:
• ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal, in order to prevent low priority individuals from being removed from the United States.
• ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process.
• ICE is directed to begin implementing this process within 60 days of the date of this memorandum.
• ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.
3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check:
• USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the
2 


Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 22 of 31
above criteria and are at least 15 years old, for a period of two years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States. • The USCIS process shall also be available to individuals subject to a final order of removal regardless of their age. • USCIS is directed to begin implementing this process within 60 days of the date of this memorandum. For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action. This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.
~jJz~
3 


Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 23 of 31
Exhibit 2

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 24 of 31

U.S. DOJ Seal Office of the Attorney General
Washington, D.C. 20530

Dear Acting Secretary Duke,
I write to advise that the Department of Homeland Security (DHS) should rescind the June 159 2012, DHS Memorandum entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children," as well as any related memoranda or guidance. This policy, known as "Deferred Action for Childhood Arrivals" (DACA), allows certain individuals who are without lawful status in the United States to request and receive a renewable, two-year presumptive reprieve from removal, and other benefits such as work authorization and participation in the Social Security program.
D A C A was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch. The related Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) policy was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of multiple legal grounds and then by the Supreme Court by an equally divided vote. See Texas v. United States, 86 F. Supp. 3d 591, 669-70 (S.D. Tex.), affd, 809 F.3d 134, 171-86 (5th Cir. 2015), affd by equally divided Court, 136 S. Ct. 2271 (2016). ThenSecretary of Homeland Security John Kelly rescinded the D A P A policy in June. Because the D A C A policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.
In light of the costs and burdens that will be imposed on DHS associated with rescinding this policy, DHS should consider an orderly and efficient wind-down process.
As Attorney General of the United States, I have a duty to defend the Constitution and to faithfully execute the laws passed by Congress. Proper enforcement of our immigration laws is, as President Trump consistently said, critical to the national interest and to the restoration of the rule of law in our country. The Department of Justice stands ready to assist and to continue to support DHS in these important efforts.
Sincerely

Jefferson

B . Sessions I I I

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 25 of 31
Exhibit 3

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 26 of 31
Official website of the Department of Homeland Security
U.S. Department of Homeland Security
Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA)
Release Date: September 5, 2017
MEMORANDUM FOR:
James W. McCament Acting Director U.S. Citizenship and Immigration Services
Thomas D. Homan Acting Director U.S. Immigration and Customs Enforcement
Kevin K. McAleenan Acting Commissioner U.S. Customs and Border Protection
Joseph B. Maher Acting General Counsel
Ambassador James D. Nealon Assistant Secretary, International Engagement
Julie M. Kirchner Citizenship and Immigration Services Ombudsman
FROM:
Elaine C. Duke Acting Secretary

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 27 of 31 SUBJECT:
Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”
This memorandum rescinds the June 15, 2012 memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which established the program known as Deferred Action for Childhood Arrivals (“DACA”). For the reasons and in the manner outlined below, Department of Homeland Security personnel shall take all appropriate actions to execute a wind-down of the program, consistent with the parameters established in this memorandum.
Background
The Department of Homeland Security established DACA through the issuance of a memorandum on June 15, 2012. The program purported to use deferred action—an act of prosecutorial discretion meant to be applied only on an individualized case-by-case basis—to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.[1] (#_ftn1) Specifically, DACA provided certain illegal aliens who entered the United States before the age of sixteen a period of deferred action and eligibility to request employment authorization.
On November 20, 2014, the Department issued a new memorandum, expanding the parameters of DACA and creating a new policy called Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). Among other things—such as the expansion of the coverage criteria under the 2012 DACA policy to encompass aliens with a wider range of ages and arrival dates, and lengthening the period of deferred action and work authorization from two years to three—the November 20, 2014 memorandum directed USCIS “to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” to certain aliens who have “a son or daughter who is a U.S. citizen or lawful permanent resident.”
Prior to the implementation of DAPA, twenty-six states—led by Texas—challenged the policies announced in the November 20, 2014 memorandum in the U.S. District Court for the Southern District of Texas. In an order issued on February 16, 2015, the district court preliminarily enjoined the policies nationwide.[2] (#_ftn2) The district court held that the plaintiff states were likely to succeed on their claim that the DAPA program did not comply with relevant authorities.
The United States Court of Appeals for the Fifth Circuit affirmed, holding that Texas and the other states had demonstrated a substantial likelihood of success on the merits and satisfied

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 28 of 31 the other requirements for a preliminary injunction.[3] (#_ftn3) The Fifth Circuit concluded that the Department’s DAPA policy conflicted with the discretion authorized by Congress. In considering the DAPA program, the court noted that the Immigration and Nationality Act “flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.” According to the court, “DAPA is foreclosed by Congress’s careful plan; the program is ‘manifestly contrary to the statute’ and therefore was properly enjoined.”
Although the original DACA policy was not challenged in the lawsuit, both the district and appellate court decisions relied on factual findings about the implementation of the 2012 DACA memorandum. The Fifth Circuit agreed with the lower court that DACA decisions were not truly discretionary,[4] (#_ftn4) and that DAPA and expanded DACA would be substantially similar in execution. Both the district court and the Fifth Circuit concluded that implementation of the program did not comply with the Administrative Procedure Act because the Department did not implement it through notice-and-comment rulemaking.
The Supreme Court affirmed the Fifth Circuit’s ruling by equally divided vote (4-4).[5] (#_ftn5) The evenly divided ruling resulted in the Fifth Circuit order being affirmed. The preliminary injunction therefore remains in place today. In October 2016, the Supreme Court denied a request from DHS to rehear the case upon the appointment of a new Justice. After the 2016 election, both parties agreed to a stay in litigation to allow the new administration to review these issues.
On January 25, 2017, President Trump issued Executive Order No. 13,768, “Enhancing Public Safety in the Interior of the United States.” In that Order, the President directed federal agencies to “[e]nsure the faithful execution of the immigration laws . . . against all removable aliens,” and established new immigration enforcement priorities. On February 20, 2017, then Secretary of Homeland Security John F. Kelly issued an implementing memorandum, stating “the Department no longer will exempt classes or categories of removable aliens from potential enforcement,” except as provided in the Department’s June 15, 2012 memorandum establishing DACA,[6] (#_ftn6) and the November 20, 2014 memorandum establishing DAPA and expanding DACA.[7] (#_ftn7)
On June 15, 2017, after consulting with the Attorney General, and considering the likelihood of success on the merits of the ongoing litigation, then Secretary John F. Kelly issued a memorandum rescinding DAPA and the expansion of DACA—but temporarily left in place the June 15, 2012 memorandum that initially created the DACA program.
Then, on June 29, 2017, Texas, along with several other states, sent a letter to Attorney General Sessions asserting that the original 2012 DACA memorandum is unlawful for the same

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 29 of 31 reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA.
The Attorney General sent a letter to the Department on September 4, 2017, articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” The letter further stated that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Nevertheless, in light of the administrative complexities associated with ending the program, he recommended that the Department wind it down in an efficient and orderly fashion, and his office has reviewed the terms on which our Department will do so.
Rescission of the June 15, 2012 DACA Memorandum
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.
Recognizing the complexities associated with winding down the program, the Department will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters specified below. Accordingly, effective immediately, the Department:
Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.
Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 30 of 31 Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above. Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods. Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time. Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees. Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
This document is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.
[1] (#_ftnref1) Significantly, while the DACA denial notice indicates the decision to deny is made in the unreviewable discretion of USCIS, USCIS has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as outlined in the June 15, 2012 memorandum, but still had his or her application denied based solely upon discretion.
[2] (#_ftnref2) Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).
[3] (#_ftnref3) Texas v. United States, 809 F.3d 134 (5th Cir. 2015).
[4] (#_ftnref4) Id.
[5] (#_ftnref5) United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).

Case 3:17-cv-05329-WHA Document 1 Filed 09/14/17 Page 31 of 31 [6] (#_ftnref6) Memorandum from Janet Napolitano, Secretary, DHS to David Aguilar, Acting Comm’r, CBP, et al., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (June 15, 2012).
[7] (#_ftnref7) Memorandum from Jeh Johnson, Secretary, DHS, to Leon Rodriguez, Dir., USCIS, et al., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents” (Nov. 20, 2014).
Topics: Border Security (/topics/border-security) , Deferred Action (/topics/deferred-action) Keywords: DACA (/keywords/daca) , Deferred Action for Childhood Arrivals (/keywords/deferred-action-childhood-arrivals)
Last Published Date: September 5, 2017

 
 Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 1 of 14

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA

14

v.

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE

16

DUKE, in her official capacity as Acting Secretary of the Department of Homeland

17 Security,

ORDER RE MOTION TO COMPLETE ADMINISTRATIVE RECORD

18

Defendants. /

19

20

INTRODUCTION

21

Under the Administrative Procedure Act, plaintiffs seek to compel completion of the

22 administrative record. Federal defendants oppose. For the reasons herein, plaintiffs’ motion is

23 GRANTED IN PART and DENIED IN PART.

24

STATEMENT

25

On June 15, 2012, the Secretary of the Department of Homeland Security issued a

26 memorandum promulgating a deferred action policy for those without lawful immigration status

27 who came to the United States as children, were continuous residents in the United States for at

28 least five years, had graduated from high school, obtained a GED, or served in the military, and

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 2 of 14

United States District Court For the Northern District of California

1 met certain other criteria — a memorandum and policy known as Deferred Action for

2 Childhood Arrivals, “DACA” for short (Dkt. No. 64-1 at 1–3).1

3

After the change in administrations in 2017, the new Secretary of DHS, John Kelly,

4 announced that DACA would be continued notwithstanding the rescission of other immigration

5 policies (id. at 230). This was done despite, and with the knowledge of, the decision of the

6 Court of Appeals for the Fifth Circuit in Texas v. United States, 809 F.3d 134 (5th Cir. 2015),

7 invalidating a different deferred action policy and the Supreme Court’s affirmance of that

8 decision by an equally divided vote, United States v. Texas, 136 S. Ct. 2271 (2016) (per

9 curiam).

10

On September 5, 2017, however, the Acting Secretary of DHS, Elaine Duke, reversed

11 the agency’s position and announced DACA’s end, effective March 5, 2018.

12

We now have five lawsuits in this district challenging that rescission.2 Each action is

13 proceeding on a parallel track and on the same schedule, which schedule was designed to reach

14 a decision on the merits and to allow appellate review by the March 5 deadline.3

15

Pursuant to the scheduling order, the federal defendants filed the administrative record

16 on October 6. It consisted of fourteen documents spanning 256 pages, each of which was

17 already available to the public, and had, in fact, already been filed in this action (Dkt. No. 49

18 ¶ 3; Dkt. No. 64-1).

19

In unison, plaintiffs now move to require completion of the administrative record in

20 accordance with Section 706 of Title 5 of the United States Code. They argue that the current

21 record is incomplete because it contains only documents personally considered by the Acting

22 Secretary (and then only some considered by her) and excludes any and all other documents that

23 indirectly led to the rescission.

24

25

1 All docket numbers herein refer to the docket in Case No. C 17-05211 WHA.

26

2 There are two additional DACA lawsuits proceeding in the Eastern District of New York before

Judge Nicholas Garaufis, State of New York v. Trump, Case No. 17-cv-05228 NGG, and Vidal v. Baran, Case
27 No. 16-cv-04756 NGG.

28

3 The fifth lawsuit, County of Santa Clara v. Trump, Case No. 17-cv-05813 HRL, was related after

plaintiffs’ motion was fully briefed and argued.

2

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 3 of 14

United States District Court For the Northern District of California

1

The federal defendants oppose, arguing that they have already filed a complete

2 administrative record, which they contend is properly limited to unprivileged documents

3 actually considered by the “decision-maker,” here, the Acting Secretary (Opp. at 8–9).

4

This order follows full briefing and oral argument and the Court’s review of all

5 materials in camera that appeared on the government’s privilege log.

6

ANALYSIS

7

1.

SCOPE OF THE ADMINISTRATIVE RECORD.

8

Section 706 of the APA provides that judicial review of agency action shall be based

9 on “the whole record.” The administrative record “is not necessarily those documents that the

10 agency has compiled and submitted as the administrative record” but rather “consists of all

11 documents and materials directly or indirectly considered by agency decision-makers and

12 includes evidence contrary to the agency’s position.” Thompson v. United States Dep’t of

13 Labor, 885 F.2d 551, 555–56 (9th Cir. 1989). This includes not only documents that “literally

14 pass[ed] before the eyes of the final agency decision maker” but also documents that were

15 considered and relied upon by subordinates who provided recommendations to the decision-

16 maker. People of State of Cal. ex rel. Lockyer v. United States Dep’t of Agriculture, Nos.

17 C05-3508 & C05-4038, 2006 WL 708914, at *2 (N.D. Cal. Mar. 16, 2006) (Magistrate Judge

18 Elizabeth Laporte) (internal citations and quotations omitted); see also Amfac Resorts, L.L.C. v.

19 United States Dep’t of the Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001) (Judge Royce

20 Lamberth).

21

The requirement that a reviewing court consider “the whole record” before rendering a

22 decision “ensures that neither party is withholding evidence unfavorable to its position and that

23 the agencies are not taking advantage of post hoc rationalizations for administrative decisions.

24 Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984).

25

While it is presumed that the administrative record submitted by defendants is complete,

26 plaintiffs can rebut this presumption with “clear evidence to the contrary.” Cook Inletkeeper v.

27 EPA, 400 F. App’x 239, 240 (9th Cir. 2010) (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735,

28 740 (10th Cir. 1993)).

3

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 4 of 14

United States District Court For the Northern District of California

1

Defendants contend a showing of bad faith or impropriety is required in order to compel

2 a complete production of the administrative record. This is incorrect. True, bad faith is one

3 basis for requiring supplementation of an administrative record, but it is not the exclusive basis.

4 Our court of appeals has repeatedly recognized other grounds for requiring supplementation,

5 including where it appears the “agency relied on documents not [already] included in the

6 record.” Pub. Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982); Fence Creek

7 Cattle Co. v. United States Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010); see also Lands

8 Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005).

9

The “bad faith” standard of Overton Park applies where, though an administrative

10 record exists, plaintiffs ask to go beyond the record that was before the agency and inquire into

11 the thought processes of decision-makers — in Overton Park, by taking the testimony of

12 agency officials. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)

13 abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).

14

Our plaintiffs are not seeking materials beyond what were already considered, directly

15 or indirectly, by the decision-maker, and therefore need not show bad faith. Supplementation

16 is appropriate if they show, by clear evidence, that the agency relied on materials not already

17 included in the record. See Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d

18 1534, 1548 (9th Cir. 1993) (distinguishing between materials “never presented to the agency”

19 and materials that were “allegedly [] before the agency”); Fence Creek Cattle Co., 602 F.3d at

20 1131.

21

Nor is defendants’ contention that it need only produce documents directly considered

22 by the Acting Secretary correct. Documents reviewed by subordinates, or other agencies

23 who informed her on the issues underlying the decision to rescind DACA, either verbally or

24 in writing, should be in the administrative record. See Lockyer, 2006 WL 708914, at *2.

25 The threshold question is whether plaintiffs have shown, by clear evidence, that the record

26

27

28

4

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 5 of 14

United States District Court For the Northern District of California

1 defendants produced is missing documents that were considered, directly or indirectly, by DHS

2 in deciding to rescind DACA.4

3

2.

PLAINTIFFS’ SHOWING OF INCOMPLETENESS.

4

Here, the tendered administrative record consists merely of fourteen documents

5 spanning 258 pages, which defendants contend constitute the entire record considered in

6 making the decision to rescind DACA. These are plainly pertinent materials, although all were

7 publicly known and already part of the pleadings herein.

8

Plaintiffs seek additional materials including emails, departmental memoranda, policy

9 directives, meeting minutes, materials considered by Secretary Duke’s subordinates,

10 communications from White House officials or staff, communications from the Department of

11 Justice, and communications between DHS and state authorities, which they contend should

12 necessarily be part of the administrative record (Br. at 9–10).

13

Plaintiffs drew this list, in part, from a United States Department of Justice Guidance,

14 which sets forth non-binding recommendations for how to compile an administrative record and

15 what to include. United States Dep’t of Justice, Env’t and Nat. Res. Div., Guidance to Federal

16 Agencies on Compiling the Administrative Record (Jan. 1999). Specifically, the Guidance

17 states that the administrative record should “[i]nclude all documents and materials prepared,

18 reviewed, or received by agency personnel and used by or available to the decision-maker,

19 even though the final decision-maker did not actually review or know about the documents

20 and materials.” Id. at 3. It further provides that the record should include “communications

21 the agency received from other agencies . . . documents and materials that support or oppose

22 the challenged agency decision . . . minutes of meetings or transcripts thereof . . . [and]

23

24

25

4 Defendants also argue that they should not be required to produce any administrative record

whatsoever because the Department of Homeland Security’s decision to end DACA was an exercise of
26 prosecutorial discretion not subject to judicial review (Opp. at 1). Earlier in these actions, our defendants

agreed to produce the administrative record by October 6, and were then ordered to do so. They may not now
27 renege on that commitment. At this stage, defendants are required to produce an administrative record. Should

they prevail on this argument on their eventual motion to dismiss, it will be with the benefit of a proper
28 administrative record.

5

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 6 of 14

United States District Court For the Northern District of California

1 memorializations of telephone conversations and meetings, such as memorandum or

2 handwritten notes.”5

3

Plaintiffs contend that communications from DOJ and the White House are a critical

4 part of “the whole record” due to their significant public participation in the process of

5 rescinding DACA. Plaintiffs first point to Attorney General Sessions’ September 4 letter,

6 which DHS expressly relied upon in its memorandum terminating the program (see Dkt. No.

7 64-1 at 251, 255). Despite this critical and publicly disclosed role in the decision, the only DOJ

8 document defendants include in the record is this one-page September 4 letter. This, plaintiffs

9 contend, is clear evidence that defendants omitted documents supporting (or contradicting) the

10 opinions set forth in Attorney General Sessions’ letter, in particular the opinion that DACA was

11 unlawfully implemented.

12

Additionally, the White House has repeatedly emphasized the President’s direct role

13 in decisions concerning DACA. For example, a September 5 White House press release

14 announced “President Donald J. Trump Restores Responsibility and the Rule of Law to

15 Immigration” by rescinding DACA, and repeatedly stated that “President Trump” had acted to

16 end the program. Press Release, The White House Office of the Press Secretary, President

17 Donald J. Trump Restores Responsibility and the Rule of Law to Immigration (Sept. 5, 2017),

18 https://www.whitehouse.gov/thepress-office/2017/09/05/president-donald-j-trump-restores-

19 responsibility-and-rule-law. Other articles likewise emphasize White House officials’ roles

20 in decision-making regarding DACA. See, e.g., Michael D. Shear & Julie Hirschfeld Davis,

21 Trump Moves to End DACA and Calls on Congress to Act, New York Times (Sept. 5, 2017).

22 Moreover, defendants concede in their response that Secretary Duke “received advice from

23 other members of the executive branch” in making her decision (Opp. at 17) and refer to “White

24 House memorandum” in their privilege log (Dkt. No. 71-2). And at oral argument, counsel for

25
5 A 2008 DOJ memorandum specifically notes that the 1999 Guidance is a non-binding internal
26 document, which does not “limit the otherwise lawful prerogatives of the Department of Justice or any other
federal agency” (Dkt. No. 71-1 at 3). In particular, the 2008 memorandum takes issue with outside parties’ use
27 of the Guidance in litigation to advocate for a particular composition of the administrative record or process for
its assembly (ibid.). Recognizing that the 1999 Guidance is not binding upon agencies, this order finds that the
28 Guidance nevertheless provides helpful insight into the types of documents and materials an agency should
consider when assembling an administrative record.

6

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 7 of 14

United States District Court For the Northern District of California

1 defendants said it was likely Secretary Duke had received verbal input before making her

2 decision. Despite this, defendants have failed to provide even a single document from any

3 White House officials or staff.

4

Plaintiffs further observe that not a single document from one of Secretary Dukes’

5 subordinates is in the record. It strains credulity to suggest that the Acting Secretary of DHS

6 decided to rescind a program covering 800,000 enrollees without consulting one advisor or

7 subordinate within DHS. Again, at oral argument, government counsel represented that she

8 had likely received verbal input. The government’s in camera submission confirms that she

9 did receive substantial DACA input.

10

Finally, former DHS Secretary John Kelly issued a memorandum in February 2017,

11 in which he rescinded all DHS memoranda that conflicted with newly stated immigration

12 enforcement policies — but expressly declined to rescind DACA (Dkt. No. 64-1 at 229–30).

13 This decision, of course, is directly contrary to that taken by Acting Secretary Duke seven

14 months later. The administrative record, however, omits all materials explaining the change

15 in position from February to September, with two exceptions — (1) a June 29 letter from Ken

16 Paxton, the Attorney General of Texas, to Attorney General Sessions, in which he threatens

17 to amend the suit challenging DAPA to also challenge DACA if it is not rescinded by

18 September 5, and (2) Attorney General Sessions’ September 4 letter to Secretary Duke

19 expressing the opinion that DHS should rescind DACA. Reasoned agency decision-making

20 ordinarily “demand[s] that [the agency] display awareness that it is changing position” and

21 “show that there are good reasons for the new policy.” F.C.C. v. Fox Television Stations, Inc.,

22 556 U.S. 502, 515 (2009). Accordingly, “the whole record” would ordinarily contain materials

23 giving a “reasoned explanation . . . for disregarding the facts and circumstances that underlay or

24 were engendered by the prior policy.” Ibid. It is simply not plausible that DHS reversed policy

25 between February and September because of one threatened lawsuit (never actually filed)

26 without having generated any materials analyzing the lawsuit or other factors militating in favor

27 of and against the switch in policy.

28

7

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 8 of 14

United States District Court For the Northern District of California

1

Based on the foregoing, plaintiffs have clearly shown that defendants excluded highly

2 relevant materials from the administrative record and in doing so have rebutted the presumption

3 that the record is complete.

4

Defendants’ argument to the contrary is unpersuasive. Their position that only selected

5 documents that Acting Secretary Duke personally reviewed need be part of the administrative

6 record must yield to legal authority requiring both directly and indirectly considered documents

7 be included in the record, see, e.g., Thompson, 885 F.2d at 555–56, and by public statements

8 illustrating both DOJ and the White House’s direct involvement in the decision to rescind

9 DACA. The rule that government counsel advocates would allow agencies to contrive a record

10 that suppresses information actually considered by decision-makers and by those making

11 recommendations to the decision-makers, information that might undercut the claimed rationale

12 for the decision.

13

As stated, privilege log entries reveal several documents that were considered in arriving

14 at the decision to rescind DACA. For example, at least seven entries refer to commentary in

15 media articles regarding DACA. At oral argument, government counsel admitted that the

16 Acting Secretary had seen several media items on the issue. There were not, however, any

17 media articles on DACA in the administrative record, but those that came to the Acting

18 Secretary should, of course, be included.6

19

Here, plaintiffs have rebutted the presumption of completeness. It is evident that Acting

20 Secretary Duke considered information directly, or indirectly, through the advice of other

21 agencies and others within her own agency. These documents, as set forth in detail below,

22 should be made part of the administrative record and must be produced by defendants in an

23 amended administrative record by NOON ON OCTOBER 27.

24
6 Many documents were evidently excluded in their entirety based on an assertion of “deliberative-
25 process” privilege. Any “[f]actual portions of documents covered by the deliberative process privilege,
[however], must be segregated and disclosed unless they are so interwoven with the deliberative material” that
26 they are not segregable. See Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir 2008) (citations
and quotations omitted). Accordingly, to the extent that media articles or other non-privileged factual materials
27 were considered, they should have been included in the administrative record, and shall be filed as part of the
amended administrative record, even if passages are redacted as deliberative, and called out as such in the
28 privilege log.

8

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 9 of 14

United States District Court For the Northern District of California

1

3.

WAIVER OF ATTORNEY-CLIENT PRIVILEGE.

2

Plaintiffs next argue that defendants have waived attorney-client privilege because they

3 have put their attorneys’ legal opinions at issue by arguing that the rescission was required due

4 to concerns over DACA’s legality (Br. at 15–16). Indeed, one of DHS’s primary rationales for

5 rescinding DACA was its purported illegality (see Dkt. No. 64-1 at 253–56 (Rescission

6 Memorandum)).

7

Parties are not permitted to advance conclusions that favor their position in litigation,

8 and at the same time shield the information that led to those conclusions from discovery.

9 See Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992). Put differently, “[t]he

10 privilege which protects attorney-client communications may not be used both as a sword and a

11 shield.” Ibid. Where a party raises a claim, which in fairness to its adversary requires it to

12 reveal the information or communication that claim is predicated upon, it has implicitly waived

13 any privilege over that communication.

14

Here, defendants argue that DHS had to rescind DACA because it exceeded the lawful

15 authority of the agency. They cannot, therefore, simultaneously refuse to disclose the legal

16 research that led to that conclusion. Defendants indeed, have included the September 4 legal

17 opinion of the Attorney General, pithy as it may be — yet they seek to conceal all other legal

18 analysis available to the Acting Secretary and to the Attorney General.

19

Significantly, defendants slide into a backup argument that the agency’s legal worry was

20 “reasonable” even if wrong. If this backup argument comes into play (as government counsel

21 posits) then the “reasonableness” of taking an incorrect legal position would heavily turn on the

22 underlying legal analysis so far withheld from view. In other words, assessing the

23 reasonableness of the Secretary’s legal rationale would turn, in part, on how consistent the

24 analysis has been in the runup to the rescission.

25

Defendants’ arguments to the contrary are unavailing. They first argue, without citation

26 to any legal authority, that “[w]ere plaintiffs’ argument accepted, the government would be

27 deemed to have waived all privileges any time an assessment of the legal landscape informed an

28 agency’s decisionsmaking” (Opp. at 21). This argument vastly exaggerates plaintiffs’ position,

9

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 10 of 14

United States District Court For the Northern District of California

1 and misrepresents the position defendants have staked out in this litigation. DHS specifically

2 relied upon DOJ’s assessment that DACA “was effectuated . . . without proper statutory

3 authority,” “was an unconstitutional exercise of authority by the Executive Branch” and “has

4 the same legal and constitutional defects that courts recognized as to DAPA” (Dkt. No. 64-1 at

5 254). Plaintiffs are entitled to challenge whether this was a reasonable legal position and thus a

6 reasonable basis for rescission. In making that challenge, plaintiffs are entitled to review the

7 internal analyses that led up to this change in position.

8

Defendants further argue that the decisions cited by plaintiffs are inapplicable because

9 they arose in different contexts than the present action. True, the decisions plaintiffs cite did

10 not arise in identical circumstances. E.g. Chevron Corp., 974 F.2d at 1162 (defendant

11 prohibited from relying on legal opinion that tax position was reasonable while refusing to

12 disclose the attorney communications leading to that conclusion). They still, however, stand for

13 the widely-accepted proposition that it is unfair for a litigant to defend his action with a

14 selective disclosure of evidence. This principle carries no less force here.

15

In the related context of FOIA, the Court of Appeals for the Second Circuit held that

16 “the attorney-client privilege may not be invoked to protect a document adopted as, or

17 incorporated by reference into an agency’s policy.” Nat’l Council of La Raza v. Dep't of

18 Justice, 411 F.3d 350, 360 (2d Cir. 2005). There, DOJ invoked the reasoning of an OLC

19 memorandum to justify its new position on an immigration issue. Id. at 357. The court held

20 that the agency’s “view that it may adopt a legal position while shielding from public view the

21 analysis that yielded that position is offensive to FOIA.” Id. at 360. So too here.

22

Defendants have waived attorney-client privilege over any materials that bore on

23 whether or not DACA was an unlawful exercise of executive power and therefore should be

24 rescinded.

25

4.

DELIBERATIVE-PROCESS PRIVILEGE BALANCING.

26

Defendants further assert the deliberative-process privilege over many documents.

27

The deliberative-process privilege, however, is qualified and will yield when the need

28 for materials and accurate fact-finding “override the government’s interest in non-disclosure.”

10

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 11 of 14

United States District Court For the Northern District of California

1 F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). “Among factors to

2 be considered in making this determination are: (1) the relevance of the evidence; (2) the

3 availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to

4 which disclosure would hinder frank and independent discussion regarding contemplated

5 policies and decisions.” Ibid.

6

As set forth below, the judge has personally reviewed in camera all materials on the

7 privilege log and applied the foregoing test to each document for which the deliberative-process

8 privilege is claimed.7

9

5.

PRIVILEGE LOG REQUIREMENT.

10

While defendants did not file a privilege log with their original production, they have

11 since, pursuant to order, filed a privilege log claiming attorney-client or deliberative-process

12 privilege over 84 documents considered by Secretary Duke but not included in the

13 administrative record (Dkt. Nos. 67; 71-2). Nevertheless, defendants argue that privilege logs

14 are not generally required in connection with an administrative record and that one should not

15 be required here.

16

Our court of appeals has not spoken on the issue. Every court in this district

17 considering the issue, however, has required administrative agencies to provide a privilege log.

18 See, e.g., Ctr. for Food Safety v. Vilsack, No. 15CV01590HSGKAW, 2017 WL 1709318, at *5

19 (N.D. Cal. May 3, 2017) (Magistrate Judge Kandis Westmore) (“[C]ourts in this district have

20 required parties withholding documents on the basis of the deliberative process privilege to, at a

21 minimum, substantiate those claims in a privilege log.”); Inst. for Fisheries Res. v. Burwell, No.

22 16-CV-01574-VC, 2017 WL 89003, at *1 (N.D. Cal. Jan. 10, 2017) (Judge Vince Chhabria);

23 Lockyer, 2006 WL 708914, at *4.

24

25

26

27

7 Although not addressed in the brief or at oral argument, the privilege log referenced personal privacy

and executive privilege objections for certain documents. No substantial privacy interest is implicated in any of
28 the documents ordered to be produced below, nor do any of these documents fall within the executive privilege.

11

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 12 of 14

United States District Court For the Northern District of California

1

“If a privilege applies, the proper strategy isn’t pretending the protected material wasn’t

2 considered, but withholding or redacting the protected material and then logging the privilege.”

3 Inst. for Fisheries Res., 2017 WL 89002 at *1.8

4

Courts outside this district that have determined no privilege log was required have done

5 so on the grounds that the defendants’ judgment of what constitutes the administrative record is

6 entitled to a presumption of correctness. See San Luis & Delta-Mendota Water Auth. v. Jewell,

7 No. 115CV01290LJOGSA, 2016 WL 3543203, at *19 (E.D. Cal. June 23, 2016) (Judge

8 Lawrence O’Neill); Nat’l Ass’n of Chain Drug Stores v. United States Dep't of Health &

9 Human Servs., 631 F. Supp. 2d 23, 27 (D.D.C. 2009). Here, however, that presumption has

10 been overcome by plaintiffs’ showing that defendants failed to include documents considered in

11 arriving at the final decision to rescind DACA in the administrative record. Therefore, even

12 applying those courts’ logic, a privilege log would still be appropriate here.

13

Going forward, defendants shall comply with the standing order in this case and provide

14 a privilege log for all documents withheld on grounds of privilege, which log shall include all

15 authors and recipients of privileged documents, as well as other information set forth in the rule

16 (see Dkt. No. 23 ¶ 18).

17

RELIEF ORDERED

18

Plaintiffs’ motion to complete the administrative record is GRANTED to the extent now

19 stated. Defendants are directed to complete the administrative record by adding to it all emails,

20 letters, memoranda, notes, media items, opinions and other materials directly or indirectly

21 considered in the final agency decision to rescind DACA, to the following extent: (1) all

22 materials actually seen or considered, however briefly, by Acting Secretary Duke in connection

23 with the potential or actual decision to rescind DACA (except as stated in the next paragraph

24 below), (2) all DACA-related materials considered by persons (anywhere in the government)

25 who thereafter provided Acting Secretary Duke with written advice or input regarding the

26
8 In a memorandum opinion, our court of appeals denied a plaintiff’s request to require a privilege log.
27 See Cook Inletkeeper v. EPA, 400 F. App'x 239, 240 (2010). In that decision, however, our court of appeals
first denied a motion to supplement the record, and finding that the plaintiffs had not presented evidence that the
28 agency had considered the documents the plaintiffs sought to compel, only then denied the accompanying
motion for preparation of a privilege log without further explanation.

12

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 13 of 14

United States District Court For the Northern District of California

1 actual or potential rescission of DACA, (3) all DACA-related materials considered by persons

2 (anywhere in the government) who thereafter provided Acting Secretary Duke with verbal input

3 regarding the actual or potential rescission of DACA, (4) all comments and questions

4 propounded by Acting Secretary Duke to advisors or subordinates or others regarding the actual

5 or potential rescission of DACA and their responses, and (5) all materials directly or indirectly

6 considered by former Secretary of DHS John Kelly leading to his February 2017 memorandum

7 not to rescind DACA.

8

The undersigned judge has balanced the deliberative-process privilege factors and

9 determined in camera that the following materials from the government’s in camera

10 submission, listed by tab number, shall be included in the administrative record: 1–6, 7 (only

11 the header and material on pages 3–4 concerning DACA), 12, 14, 17–25, 27–30, 36, 39, 44, 47,

12 49 (only the first paragraph, and the paragraph captioned “General”), 69–70, 73–74, 77, 79, 81,

13 84. The remainder of the in camera submission need not be included.

14

If the government redacts or withholds any material based on deliberative-process, or

15 any other privilege in its next filing, it shall simultaneously lodge full copies of all such

16 materials, indicating by highlighting (or otherwise) the redactions and withholdings together

17 with a log justification for each. The judge will review and rule on each item.

18

Plaintiffs’ insistence that defendants scour the Department of Justice and the White

19 House for documents for inclusion in the administrative record is overruled except to the

20 limited extent that DOJ or White House personnel fall within the category described in the first

21 paragraph above as someone who gave verbal or written input to the Acting Secretary. Nor do

22 defendants have to search for DACA materials below the agency levels indicated in the first

23 paragraph above. These are intended as practical limits on what would otherwise be a bone-

24 crushing expedition to locate needles in haystacks.

25

This order, however, is not intended to limit the scope of discovery (as opposed to the

26 scope of the administrative record). The scope of discovery over and above the administrative

27 record continues to be managed by Magistrate Judge Sallie Kim.

28

13

Case 3:17-cv-05329-WHA Document 30 Filed 10/17/17 Page 14 of 14

United States District Court For the Northern District of California

1

The federal defendants shall file an amended administrative record in conformity with

2 this order by NOON ON OCTOBER 27.

3

If any party plans to seek a writ of mandate and wants a stay pending appellate review,

4 then a fresh motion to that effect must be made very promptly.

5

6

IT IS SO ORDERED.

7

8 Dated: October 17, 2017. 9

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

 
 Case 3:17-cv-05329-WHA Document 31 Filed 10/18/17 Page 1 of 2

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA

14

v.

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE

16

DUKE, in her official capacity as Acting Secretary of the Department of Homeland

17 Security,

ORDER TO COMPILE SUPPLEMENT FORTHWITH

18

Defendants. /

19

20

In light of the March 5 expiration of DACA and in order to keep this group of cases on

21 track and to avoid delay due to tardy compliance with yesterday’s order, defendants shall

22 immediately begin compiling the supplemental materials ordered yesterday for the

23 administrative record and shall have the full supplement ready by the due date of OCTOBER 27.

24

Defendants shall do so regardless of whether or not they may seek a writ of mandate.

25 Even if defendants seek relief from the court of appeals, that court may wish to review in

26 camera the supplemental materials, or if that court orders supplementation in full or partial

27 compliance with yesterday’s order, the supplemental materials will be ready to use.

28

Case 3:17-cv-05329-WHA Document 31 Filed 10/18/17 Page 2 of 2

United States District Court For the Northern District of California

1

This will avoid unnecessary delay. The Court implores government counsel to remain

2 on top of this process.

3

4

IT IS SO ORDERED.

5

6 Dated: October 18, 2017.

7

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 
 Case 3:17-cv-05329-WHA Document 33 Filed 10/19/17 Page 1 of 4

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA

14

v.

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE

16

DUKE, in her official capacity as Acting Secretary of the Department of Homeland

17 Security,

ORDER RE MOTION TO STAY PROCEEDINGS

18

Defendants. /

19

20

An October 17 order required federal defendants to complete the administrative record,

21 including by providing all materials directly or indirectly considered by the Acting Secretary of

22 the Department of Homeland Security in connection with her decision to rescind the Deferred

23 Action for Childhood Arrivals (“DACA”) policy, as well as all materials considered by those

24 who advised the Acting Secretary (Dkt. No 79).

25

On October 18, federal defendants filed this motion seeking a stay of certain

26 proceedings — including all discovery and further proceedings concerning composition of the

27 administrative record — pending resolution of a writ of mandamus appealing the October 17

28 order, which writ they will file with our court of appeals no later than October 20 (Dkt. No. 81).

All parties stipulated to an expedited briefing schedule, pursuant to which plaintiffs filed a

Case 3:17-cv-05329-WHA Document 33 Filed 10/19/17 Page 2 of 4

United States District Court For the Northern District of California

1 response at 5:00 p.m. today. With the benefit of the parties’ briefing, this order now DENIES

2 federal defendants’ motion for a stay.

3

Whether to grant a stay is, in the first instance, in the discretion of the district court.

4 Nken v. Holder, 556 U.S. 418, 433 (2009). That discretion is guided by a four-factor test, under

5 which courts consider: “(1) whether the stay applicant has made a strong showing that he is

6 likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a

7 stay; (3) whether issuance of the stay will substantially injure the other parties interested in the

8 proceeding; and (4) where the public interest lies.” Ibid. (citations and quotations omitted).

9

These factors do not favor our federal defendants. The contentions federal defendants

10 rely upon in arguing that they are likely to succeed on the merits are largely duplicative of their

11 arguments opposing completion of the administrative record, which were rejected by the

12 October 17 order. For the same reasons set forth therein, these arguments remain unavailing.

13 Federal defendants additional arguments are likewise unpersuasive. They offer a strained and

14 inaccurate interpretation of 8 U.S.C. 1252(g) in support of their position that the decision to

15 rescind DACA is unreviewable. Section 1252(g), however, only bars judicial review of

16 decisions “by the Attorney General to [1] commence proceedings, [2] adjudicate cases, or [3]

17 execute removal orders,” none of which are at issue here. This provision has been “narrowly

18 construed” and is plainly inapplicable to this action. See Kwai Fun Wong v. United States, 373

19 F.3d 952, 964 (9th Cir. 2004). Nor does federal defendants’ argument regarding the Court’s

20 position on whether Acting Secretary Elaine Duke is subject to deposition — a topic not yet

21 formally raised in this action or properly the subject of defendants’ mandamus petition — show

22 that they are likely to succeed.

23

Most importantly, a stay will likely result in substantial and irreparable harm to our

24 plaintiffs, and to those parties most interested in these proceedings, people who are currently

25 enrolled in DACA. All face a March 5, 2018 deadline, on which date the Department of

26 Homeland Security has determined to end DACA. On that day, people currently living and

27 working in the United States will begin to lose the protections afforded by DACA. The Court

28 intends to reach a decision before the March 5 deadline, on a substantial and complete record,

2

Case 3:17-cv-05329-WHA Document 33 Filed 10/19/17 Page 3 of 4

United States District Court For the Northern District of California

1 which can be reviewed by our court of appeals, and has set a schedule that will accomplish this.

2 A stay risks allowing this deadline to pass without a decision on the merits, and therefore poses

3 a substantial threat to our plaintiffs and to DACA enrollees.

4

Moreover, any alleged “irreparable harm” imposed upon the government related to their

5 discovery burden pales in comparison to that which will be faced by DACA enrollees. Nor will

6 privileged government communications be publicly disclosed, as the undersigned judge has

7 reviewed, and as necessary will continue to review such documents, submitted in camera, and

8 withhold from public view those that require withholding.

9

Finally, the public’s interest is best served by a thorough, transparent, and expeditious

10 resolution of this litigation. Federal defendants’ argument that this action and one other lawsuit

11 pending in New York have diverted resources from the Department of Homeland Security’s

12 mission of protecting the United States is not well taken. The federal government is certainly

13 equipped to participate in this litigation and continue to perform its core functions.

14

Though federal defendants analyze their motion under the four-factor test set forth

15 above, they also suggest that a different test applies here since they seek to stay a proceeding as

16 opposed to only staying an order or judgment. That test asks “whether (1) resolution by the

17 Ninth Circuit of the issue addressed in [the appealed order] could materially affect this case and

18 advance the ultimate termination of litigation and (2) whether a stay will promote [ ] economy

19 of time and effort for the Court and the parties.” American Hotel & Lodging Ass'n v. City of

20 Los Angeles, No. CV 14-09603-AB (SSX), 2015 WL 10791930, at *3 (C.D. Cal. Nov. 5, 2015)

21 (Judge Andre Birotte Jr.) (internal citations and quotations omitted).

22

This, however, is mere slight of hand. Federal defendants are not seeking to stay “all

23 proceedings in the DACA cases” as they state in their notice of motion (Dkt. No. 81 at 1), but

24 rather are seeking to “stay discovery and further proceedings concerning the composition of the

25 administrative record pending a ruling on [their] upcoming motion to dismiss” as they clarify in

26 their memorandum of points and authorities (id. at 1–2). In other words, they are moving to

27 stay the October 17 order — a motion to which the four-part Nken test applies — while

28 continuing to litigate only their affirmative case. This is improper.

3

Case 3:17-cv-05329-WHA Document 33 Filed 10/19/17 Page 4 of 4

United States District Court For the Northern District of California

1

Even under the test set forth in American Hotel & Lodging, however, defendants motion

2 still fails. First, a stay will not promote economy of time and effort. In fact, it will have the

3 opposite effect. It will prolong proceedings and in all likelihood duplicate efforts by creating a

4 delay, which requires litigation first on the issue of provisional relief followed by a second

5 round of litigation on the merits. This will result in a waste of time and resources.

6

Second, staying discovery and proceedings concerning composition of the

7 administrative record will not advance the litigation. An appellate decision on the composition

8 of the administrative record can be made now or later, as our court of appeals prefers, but we

9 ought to continue making progress on the merits while that court considers the issue.

10

For the foregoing reasons, federal defendants’ motion to stay proceedings is DENIED.

11 This action shall continue on the schedule set forth in the September 22 Scheduling Order (Dkt.

12 No. 49). Even in the unfortunate event that the administrative record is not settled (due to

13 appellate proceedings), our briefing schedule will nevertheless allow an orderly assessment of

14 whether or not provisional relief is warranted.

15

16

17

IT IS SO ORDERED.

18

19

20 Dated: October 19, 2017.

21

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

28

4

 
 Case 3:17-cv-05329-WHA Document 34 Filed 10/20/17 Page 1 of 4

1 CHAD A. READLER Acting Assistant Attorney General
2 BRIAN STRETCH United States Attorney
3
BRETT A. SHUMATE 4 Deputy Assistant Attorney General
JOHN. R. TYLER 5 Assistant Branch Director
BRAD P. ROSENBERG (DC Bar #467513)
6
Senior Trial Counsel 7 STEPHEN M. PEZZI (DC Bar #995500)
KATE BAILEY (MD. Bar #1601270001) 8 Trial Attorneys 9 United States Department of Justice
Civil Division, Federal Programs Branch 10 20 Massachusetts Avenue, N.W.
Washington, DC 20530 11 Telephone: (202) 514-3374 12 Facsimile: (202) 616-8460
E-mail: brad.rosenberg@usdoj.gov
13
Attorneys for Defendants
14

15

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18
THE REGENTS OF THE UNIVERSITY OF 19 CALIFORNIA and JANET NAPOLITANO,
in her official capacity as President of the 20 University of California,
Plaintiffs,
21
v.
22
U.S. DEPARTMENT OF HOMELAND 23 SECURITY and ELAINE DUKE, in her
official capacity as Acting Secretary of the 24 Department of Homeland Security,

25

Defendants.

26

CASE NO. 17-CV-05211-WHA
NOTICE OF FILING OF PETITION FOR WRIT OF MANDAMUS

27

28

All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813) NOTICE OF FILING OF PETITION FOR WRIT OF MANDAMUS

Case 3:17-cv-05329-WHA Document 34 Filed 10/20/17 Page 2 of 4

1 STATE OF CALIFORNIA, STATE OF MAINE, STATE OF MARYLAND, and
2 STATE OF MINNESOTA,

3

Plaintiffs,

4

v.

5

U.S. DEPARTMENT OF HOMELAND SECURITY, ELAINE DUKE, in her official

6

capacity as Acting Secretary of the Department of Homeland Security, and the UNITED

7 STATES OF AMERICA,

8

Defendants.

CASE NO. 17-CV-05235-WHA
NOTICE OF FILING OF PETITION FOR WRIT OF MANDAMUS

9

10 CITY OF SAN JOSE, a municipal corporation,

11

Plaintiffs,

12

v.

13 DONALD J. TRUMP, President of the United States, in his official capacity, ELAINE C.
14 DUKE, in her official capacity, and the UNITED STATES OF AMERICA,
15
Defendants.
16

CASE NO. 17-CV-05329-WHA
NOTICE OF FILING OF PETITION FOR WRIT OF MANDAMUS

17 DULCE GARCIA, MIRIAM GONZALEZ

18

AVILA, SAUL JIMENEZ SUAREZ, VIRIDIANA CHABOLLA MENDOZA,

NORMA RAMIREZ, and JIRAYUT 19 LATTHIVONGSKORN,

20

Plaintiffs,

21

v.

22 UNITED STATES OF AMERICA, DONALD J. TRUMP, in his official capacity as President
23 of the United States, U.S. DEPARTMENT OF HOMELAND SECURITY, and ELAINE
24 DUKE, in her official capacity as Acting Secretary of Homeland Security,
25
Defendants.
26

CASE NO. 17-CV-05380-WHA
NOTICE OF FILING OF PETITION FOR WRIT OF MANDAMUS

27

28

All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813) NOTICE OF FILING OF PETITION FOR WRIT OF MANDAMUS

Case 3:17-cv-05329-WHA Document 34 Filed 10/20/17 Page 3 of 4

1 COUNTY OF SANTA CLARA and 2 SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521,
3
Plaintiffs,
4
v.
5
6
DONALD J. TRUMP, in his official 7 capacity as President of the United States;
JEFFERSON BEAUREGARD SESSIONS, in 8 his official capacity as Attorney General of the 9 United States; and ELAINE DUKE, in her
official capacity as Acting Secretary of the 10 Department of Homeland Security; and U. S.
DEPARTMENT OF HOMELAND 11 SECURITY,
12
Defendants.
13

CASE NO. 17-CV-05813-WHA
NOTICE OF FILING OF PETITION FOR WRIT OF MANDAMUS

14
15 TO THE HONORABLE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: 16 PLEASE TAKE NOTICE that, on October 20, 2017, Defendants filed the attached Petition for a 17 Writ of Mandamus to the United States District Court for the Northern District of California and 18 Emergency Motion for Stay in the United States Court of Appeals for the Ninth Circuit. A copy 19 of the mandamus petition is attached hereto.

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1 Dated: October 20, 2017
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Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
BRIAN STRETCH United States Attorney
BRETT A. SHUMATE Deputy Assistant Attorney General
JOHN R. TYLER Assistant Branch Director
/s/ Brad P. Rosenberg BRAD P. ROSENBERG (DC Bar #467513) Senior Trial Counsel STEPHEN M. PEZZI (DC Bar #995500) KATE BAILEY (MD. Bar #1601270001) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20530 Phone: (202) 514-3374 Fax: (202) 616-8460 Email: brad.rosenberg@usdoj.gov
Attorneys for Defendants

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 Case: 17-72917, 11/01/2017, ID: 10640486, DktEntry: 26-1, Page 1 of 28
No. 17-72917
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
In re: UNITED STATES OF AMERICA, et al., Petitioners.
______________________ UNITED STATES OF AMERICA; DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; and ELAINE DUKE, Acting
Secretary of Homeland Security, Petitioners-Defendants,
v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent,
REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE
OF MARYLAND; STATE OF MINNESOTA; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; NORMA RAMIREZ; JIRAYUT LATTHIVONGSKORN; COUNTY OF SANTA
CLARA; and SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521, Real Parties in Interest-Plaintiffs.
BRIEF AMICUS CURIAE OF NATURAL RESOURCES DEFENSE COUNCIL
IN SUPPORT OF REAL PARTIES IN INTEREST-PLAINTIFFS
MICHAEL E. WALL Natural Resources Defense Council 111 Sutter Street, 21st Floor San Francisco, CA 94104 (415) 875-6100

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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, amicus curiae Natural Resources Defense Council, Inc., submits that it has no parent corporations and no publicly issued stock shares or securities. No publicly held corporation holds stock in Amicus.
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TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT........................................................i TABLE OF AUTHORITIES.................................................................................. iii INTERESTS OF AMICUS CURIAE ......................................................................1 INTRODUCTION ...................................................................................................1 ARGUMENT ............................................................................................................ 4 I. Judicial review under the Administrative Procedure Act requires
the litigants and the court to have access to the “whole” record of the agency’s proceedings.............................................................................4 II. If an agency wishes to exclude deliberative-process materials from an administrative record, it must justify the claim of privilege ..........10 CONCLUSION ......................................................................................................17 CERTIFICATE OF COMPLIANCE ....................................................................18 CERTIFICATE OF SERVICE ...............................................................................19
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TABLE OF AUTHORITIES
CASES Aera Energy LLC v. Salazar,
642 F.3d 212 (D.C. Cir. 2011) .......................................................................9
American Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2002) ...................................................................14
Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229 (9th Cir. 2001)....................................................................4, 5
Assembly of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916 (9th Cir. 1992)..................................................................12, 15
Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993) .......................................................................6
Bonnichsen v. United States, 217 F. Supp. 2d 1116 (D. Or. 2002)....................................................2, 8, 11
Burlington Truck Lines v. United States, 371 U.S. 156 (1962) ........................................................................................2
Camp v. Pitts, 411 U.S. 138 (1973) ........................................................................................6
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) ............................................................................5, 11, 16
City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004)......................................................................11
Ctr. for Biological Diversity v. Evans, No. C 04-04496, 2005 WL 1514102 (N.D. Cal. June 14, 2005)................11
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D.C. Fed’n of Civic Assocs. v. Volpe, 459 F.2d 1231 (D.C. Cir. 1971) .................................................................5, 9
Defs. of Wildlife v. Kempthorne, No. 04-1230, 2006 WL 2844232 (D.D.C. Sept. 29, 2006) .........................11
Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982)...........................................................................6
Earth Island Inst. v. Hogarth, 494 F.3d 757 (9th Cir. 2007)........................................................................11
EEOC v. BDO USA, L.L.P., 856 F.3d 356 (5th Cir. 2017)........................................................................15
Envtl. Def. Fund, Inc. v. Blum, 458 F. Supp. 650 (D.D.C. 1978) ................................................................ 5-6
Epsilon Electronics., Inc. v. U.S. Department of the Treasury, 857 F.3d 913 (D.C. Cir. 2017) .....................................................................14
FTC v. Warner Commc’ns Inc., 742 F.2d 1156 (9th Cir. 1984)............................................................3, 12, 17
Georgia ex rel. Olens v. McCarthy, 833 F.3d 1317 (11th Cir. 2016)...........................................................................2
Grand Jury Subpoena Dated Aug. 9, 2000, 218 F. Supp. 2d 544 (S.D.N.Y. 2002) .........................................................16
Hughes River Watershed Conservancy v. U.S. Forest Serv., 81 F.3d 437 (4th Cir. 1996)............................................................................9
Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995)........................................................................11
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In re Franklin Nat’l Bank Sec. Litig., 478 F. Supp. 577 (E.D.N.Y. 1979) .........................................................3, 12
In re Grand Jury Subpoena Dated Aug. 9, 2000, 218 F. Supp. 2d 544 (S.D.N.Y. 2002) .........................................................13
Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic & Atmospheric Admin., 99 F. Supp. 3d 1033 (N.D. Cal. 2015) ..........................................................2
Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000) ...................................................................12
Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) ....................................................................................5, 9
Miami Nation of Indians v. Babbitt, 979 F. Supp. 771 (N.D. Ind. 1996) .............................................................11
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ............................................................................2, 4, 5, 10
Nat. Res. Def. Council, Inc. v. SEC, 606 F.2d 1031 (D.C. Cir. 1979) .....................................................................3
Nat. Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007) .........................................................11
Nat. Res. Def. Council v. Pritzker, 828 F.3d 1125 (9th Cir. 2016)..............................................................8, 9, 11
Nat. Res. Def. Council v. Rodgers, 381 F. Supp. 2d 1212 (E.D. Cal. 2005) .......................................................11
Nat. Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797 (9th Cir. 2005)..........................................................................9
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Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395 (D.C. Cir. 1984) .....................................................................16
Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468 (9th Cir. 1994)..........................................................................8
Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846 (9th Cir. 2005)........................................................................11
Ocean Mammal Inst. v. Gates, No. Civ. 07-00254, 2008 WL 2185180 (D. Haw. May 27, 2008).............15
Paisley v. CIA, 712 F.2d 686 (D.C.Cir.1983) .......................................................................15
Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534 (9th Cir. 1998)..................................................................6, 12
Pub. Power Council v. Johnson, 674 F.2d 791 (9th Cir. 1982)........................................................................10
San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Commission, 789 F.2d 26 (D.C. Cir. 1986) ................................................................. 13-14
Suffolk Cty. v. Sec’y of Interior, 562 F.2d 1368 (2d Cir. 1977).......................................................................13
Texaco P.R., Inc. v. Dep’t. of Consumer Affairs, 60 F.3d 867 (1st Cir. 1995) ............................................................................4
Thompson v. U.S. Dep’t of Labor, 885 F.2d 551 (9th Cir. 1989)......................................................................6, 7
United States v. Morgan, 313 U.S. 409 (1941) ......................................................................................17
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United States v. Nixon, 418 U.S. 683 (1974) ......................................................................................16
United States v. Reynolds, 345 U.S. 1 (1953) ..........................................................................................16
United States v. Rozet, 183 F.R.D. 662 (N.D. Cal. 1998) .................................................................16
Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788 (D.C. Cir. 1984) ............................................. 2-3, 5, 13, 15, 16
Wash. Toxics Coal. v. U.S. Dep’t of Interior, 457 F. Supp. 2d 1158 (W.D. Wash 2006) ..................................................11
W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011)....................................................................9, 11 STATUTES
5 U.S.C. § 553(a) .......................................................................................................7 5 U.S.C. § 553(c) .......................................................................................................8 5 U.S.C. § 554............................................................................................................7
5 U.S.C. § 556............................................................................................................7
5 U.S.C. § 556(d).......................................................................................................7 5 U.S.C. § 556(e) .................................................................................................8, 14 5 U.S.C. § 557............................................................................................................7 5 U.S.C. § 557(d)(1)(A) ............................................................................................7
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5 U.S.C. § 706...................................................................................................passim 5 U.S.C. § 706(2)(A) .................................................................................................4 42 U.S.C. § 2239(a) .................................................................................................13 42 U.S.C. § 5851(b)(2)(A) ........................................................................................7
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INTERESTS OF AMICUS CURIAE Amicus Natural Resources Defense Council, Inc. (NRDC), a nonprofit advocacy group with hundreds of thousands of members, litigates to protect health and the environment, to vindicate its members’ rights, and to ensure the lawfulness and transparency of agency actions. Because courts often review agency action on the “administrative record,” NRDC seeks to ensure that the records agencies submit to the courts completely and accurately reflect the agencies’ proceedings.1
INTRODUCTION Whether courts review the lawfulness of agency action based on the “whole record,” 5 U.S.C. § 706, or a partial, potentially sanitized record, is a question of profound significance to the functioning of our government. The answer affects judges’ ability to fairly and accurately assess agency decisions, and the public’s ability to check agency excesses in court. NRDC has litigated hundreds of record-review cases. Some of these cases have been prosecuted against federal agencies; others have been
1 No party’s counsel authored any part of this brief. No party or party’s counsel contributed money intended to fund the preparation or submission of this brief. No person (other than amicus curiae, its members, or its counsel) contributed money to fund any aspect of this brief.
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litigated alongside the government. The administrative records in recordreview cases often span tens of thousands, or sometimes more than a million, pages.2 There are many reasons for this: The work of regulatory agencies is nuanced, complex, and serious. Rulemakings often last years. And an administrative record, at its best, discloses all the evidence and argument before the agency, the considerations the agency weighed, and the agency’s conclusions and reasoning.
These issues are, after all, the issues that a reviewing court must evaluate. See, e.g., Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962))). “To review less than the full administrative record might allow a party to withhold evidence unfavorable to its case,” which would impede a court’s ability “to review an agency’s action fairly.” Walter O. Boswell Mem’l
2 See, e.g., Georgia ex rel. Olens v. McCarthy, 833 F.3d 1317, 1320 (11th Cir. 2016); Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic & Atmospheric Admin., 99 F. Supp. 3d 1033, 1044 (N.D. Cal. 2015); Bonnichsen v. United States, 217 F. Supp. 2d 1116, 1120 n.2 (D. Or. 2002).
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Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984). And that risk would be magnified if agencies could exclude documents they deemed privileged as deliberative process without specifically asserting or justifying their claims.
Congress did not intend that result when it directed courts to review agency action on the “whole record.” 5 U.S.C. § 706. The deliberativeprocess privilege is a qualified, common-law protection intended “to protect the quality of agency decisions.” FTC v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). But there are competing interests, manifest in the Administrative Procedure Act, “in opening for scrutiny the government’s decision making process,” In re Franklin Nat’l Bank Sec. Litig., 478 F. Supp. 577, 582 (E.D.N.Y. 1979), and “ensuring the rationality and fairness” of that decision making. Nat. Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1048 (D.C. Cir. 1979). For these reasons, “[a] litigant may obtain deliberative materials if his or her need for the materials and the need for accurate fact-finding override the government’s interest in non-disclosure.” Warner Commc’ns, 742 F.2d at 1161.
If an agency wishes to assert the deliberative-process privilege to exclude documents from the record for judicial review, it must show why the agency’s interest in the secrecy of specific documents outweighs
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“society’s interest in the accuracy and integrity of factfinding, and the public’s interest in honest, effective government.” Texaco P.R., Inc. v. Dep’t of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995). Absent such a showing, judicial review on the “whole record” should proceed. 5 U.S.C. § 706.
ARGUMENT I. Judicial review under the Administrative Procedure Act requires
the litigants and the court to have access to the “whole” record of the agency’s proceedings The Administrative Procedure Act (APA) provides for judicial review of agency action on “the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. These words should be construed “with a view to their place in the overall statutory scheme.” Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1241 (9th Cir. 2001) (citation omitted). Under the APA’s arbitrary-or-capricious standard, see 5 U.S.C. § 706(2)(A), a court reviews the “whole record” to decide, among other things, whether the agency based its decision on the relevant factors, see Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1236; explained its decision in a way that “runs counter to the evidence before [it],” Motor Vehicle Mfrs., 463 U.S. at 43; or failed to offer a “rational connection between the facts found and the choice made,” id. While this inquiry is circumscribed, courts’ review
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must be “searching and careful.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).
A court that does not have the whole record cannot “carefully review[] the record and satisfy[] [itself] that the agency has made a reasoned decision based on [the agency’s] evaluation of the [evidence].” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989). A court cannot, for example, assess whether an agency decision “runs counter to the evidence,” Motor Vehicle Mfrs., 463 U.S. at 43, without all the evidence. And a court certainly cannot evaluate whether the agency based its decision on the “relevant factors,” Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1236—or on impermissible ones, see D.C. Fed’n of Civic Assocs. v. Volpe, 459 F.2d 1231, 1249 (D.C. Cir. 1971)—without knowing what factors the agency weighed.
To fairly decide these questions, the reviewing court should “have before it neither more nor less information than did the agency when it made its decision.” Walter O. Boswell Mem’l Hosp., 749 F.2d at 792. Anything “less than the full administrative record might allow a party to withhold evidence unfavorable to its case.” Id. The agency could “skew the ‘record’ for review in its favor by excluding from that ‘record’ information in its own files which has great pertinence to the proceeding in question.” Envtl.
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Def. Fund, Inc. v. Blum, 458 F. Supp. 650, 661 (D.D.C. 1978). As this Court has said, “[a]n incomplete record must be viewed as a ‘fictional account of the actual decisionmaking process.’” Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1538 (9th Cir. 1998) (citation omitted).
The whole record is thus “everything that was before the agency pertaining to the merits of its decision.” Id. at 1548 (citing Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555-56 (9th Cir. 1989)); see also Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993) (“The complete administrative record consists of all documents and materials directly or indirectly considered by the agency.”); Dopico v. Goldschmidt, 687 F.2d 644, 654 (2d Cir. 1982) (holding that the “whole administrative record” includes the agency’s “informational base” when it made its decision). This is what the Supreme Court referred to in Camp v. Pitts, when it stated that “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” 411 U.S. 138, 142 (1973) (per curiam). The record already in existence is “not necessarily those documents that the agency has compiled and submitted as ‘the’ administrative record.” Thompson, 885 F.2d at 556 (emphasis in original) (citation omitted).
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To the extent Defendants claim that the administrative record includes only materials directly considered “by the decisionmaker,” Pet. 3, they err. As this Court has explained, the “whole record” includes materials considered either “directly or indirectly” by the decisionmaker. Id. at 18 (quoting Thompson, 885 F.2d at 555). It is difficult to see what “indirect[] consider[ation]” could mean if it required that the ultimate decisionmaker actually review the documents.
Notwithstanding Defendants’ contrary suggestion, Thompson v. U.S. Department of Labor does not hold that the “record” of informal agency actions includes only materials transmitted to the ultimate decisionmaker. The Thompson court reviewed an agency adjudication conducted pursuant to the APA’s special procedural safeguards for formal proceedings.3 See 885 F.2d at 555. Those safeguards, which do not apply to informal rulemakings, include a prohibition on ex parte communications, 5 U.S.C. § 557(d)(1)(A); a right to call and cross-examine witnesses, id. § 556(d); and transcribed
3 The APA’s formal procedural safeguards applied because Thompson arose under a statute that required the agency to make its decision on the record after a hearing. 42 U.S.C. § 5851(b)(2)(A). This standard triggers the formal procedural safeguards set out in 5 U.S.C. §§ 556 & 557. See 5 U.S.C. §§ 553(a), 554.
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hearings, id. § 556(e). The APA specifies that the “record” for such formal proceedings includes only the transcript, exhibits, and materials “filed in the proceeding.” Id. None of these procedures apply to informal agency action. See id. § 553(c).
Outside the formal adjudicative context, however, the administrative record necessarily encompasses the review and analysis of agency staff who then digest the record and make recommendations to their leadership. The decisionmaker “indirectly” considers this information through agency staff. If courts could not consider the work those staff did—work that informs summaries and recommendations sent to decisionmakers—then much of the basis for agency decisions would be hidden from judicial view.
Informal agency proceedings, such as most rulemakings, may take months or years to complete. Vast administrative records are often collected, see supra note 2, potentially including public comments,4 communications among or concerns voiced by the agency’s own staff,5
4 See, e.g., Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1474 (9th Cir. 1994).
5 See, e.g., Bonnichsen, 217 F. Supp. 2d at 1130; Nat. Res. Def. Council v. Pritzker, 828 F.3d 1125, 1136 (9th Cir. 2016).
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sister agencies’ viewpoints,6 scientific evaluations,7 and economic studies. 8 The heads of federal agencies cannot practicably review and evaluate all this material themselves. Yet, under Defendants’ theory, all such material, unless provided directly to the final decisionmaker, would be properly excluded from the record for judicial review. That theory cannot be squared with the courts’ routine reliance on such material in their decisions.
Courts need “a full-scale administrative record” to “dispel any doubts about the true basis of [the agency’s] action.” D.C. Fed’n of Civic Assocs., 459 F.2d at 1249; accord Aera Energy LLC v. Salazar, 642 F.3d 212, 221 (D.C. Cir. 2011). A “contrary approach” would “render judicial review generally meaningless” and contravene “the demand that courts ensure that agency decisions are founded on a reasoned evaluation ‘of the relevant factors.’” Marsh, 490 U.S. at 378. Thus, if the record lodged by the agency in
6 See Pritzker, 828 F.3d at 1136-37 (referring to concern voiced by Marine Mammal Commission).
7 See, e.g., id. at 1136-40; W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 479, 497-98 (9th Cir. 2011).
8 See Nat. Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 801-02, 807 (9th Cir. 2005); Hughes River Watershed Conservancy v. U.S. Forest Serv., 81 F.3d 437, 446-47 (4th Cir. 1996).
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court does not include all that material, the court may order the record completed. See Pub. Power Council v. Johnson, 674 F.2d 791, 793-94 (9th Cir. 1982) (Kennedy, J.). II. If an agency wishes to exclude deliberative-process materials from
an administrative record, it must justify the claim of privilege Contrary to Defendants’ assertions, internal agency documents disclosing the agency’s deliberations are not automatically excluded from the administrative record. The deliberative-process privilege is a qualified, common-law privilege that must be justified on a document-by-document basis. It does not trump Congress’s requirement that judicial review of agency action proceed on the “whole record.” 5 U.S.C. § 706. To the contrary, judicial review under the APA almost invariably examines the agency’s deliberative process. The reviewing court is called to determine whether the agency “failed to consider an important aspect of the problem,” “offered an explanation for its decision that runs counter to the evidence before the agency,” or made no “rational connection between the facts found and the choice made.” Motor Vehicle Mfrs., 463 U.S. at 43-44. In answering these questions, this Court routinely considers internal agency documents that evaluate evidence, make recommendations, reveal
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disagreements among staff, and otherwise disclose candid agency
deliberations; a few examples of this Court’s reliance on such material are
cited in the margin.9 District courts routinely consider such material as
well.10 Candid, internal agency documents are a core part of the “whole
record,” 5 U.S.C. § 706, and often critical to a “searching and careful”
judicial inquiry. Citizens to Preserve Overton Park, 401 U.S. at 416.
9 See, e.g., Pritzker, 828 F.3d at 1136-40 (agency scientists’ analysis and recommendation); W. Watersheds Project, 632 F.3d at 479, 497 (agency scientists’ analyses); Earth Island Inst. v. Hogarth, 494 F.3d 757, 768-69 (9th Cir. 2007) (agency “internal memoranda,” “briefing packet,” and “talking points”); Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 862-63 & n.4 (9th Cir. 2005) (agency emails); City of Sausalito v. O’Neill, 386 F.3d 1186, 1218 (9th Cir. 2004) (internal agency memo); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1396 (9th Cir. 1995) (provisional draft).
10 See, e.g., Nat. Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322, 372 (E.D. Cal. 2007) (interagency emails); Wash. Toxics Coal. v. U.S. Dep’t of Interior, 457 F. Supp. 2d 1158, 1183-85 & n.19, 1190-93 & n.28 (W.D. Wash 2006) (agency staff emails, draft letters, meeting minutes, and notes); Defs. of Wildlife v. Kempthorne, No. 04-1230, 2006 WL 2844232, at *11 n.8 (D.D.C. Sept. 29, 2006) (agency staff email); Nat. Res. Def. Council v. Rodgers, 381 F. Supp. 2d 1212, 1236 n.41, 1239-40 & nn.47, 52, 1244-45 (E.D. Cal. 2005) (agency staff emails and similar internal correspondence); Ctr. for Biological Diversity v. Evans, No. C 04-04496, 2005 WL 1514102, at *5 (N.D. Cal. June 14, 2005) (agency memos and draft rule never released to public); Bonnichsen, 217 F. Supp. 2d at 1130 (internal agency communications and meeting minutes); see also Miami Nation of Indians v. Babbitt, 979 F. Supp. 771, 778 (N.D. Ind. 1996) (“draft reports,” “notes and logs,” and “guidelines, directives, and manuals”).
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Yet much of this internal material arguably falls within what an agency might deem deliberative-process privileged. See generally Assembly of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916, 920 (9th Cir. 1992) (discussing scope of deliberative-process privilege). Defendants’ theory that the administrative record does not include predecisional, deliberative material would thus require this Court to depart sharply from past practice and precedent. It would also require the Court to abandon its definition of the “whole record” as “everything that was before the agency pertaining to the merits of its decision.” Portland Audubon Soc’y, 984 F.2d at 1548.
Nothing in the APA suggests that Congress intended the enfeebled judicial review that would flow from Defendants’ approach. The deliberative-process privilege is a qualified privilege, and one created by the courts. Warner Commc’ns, 742 F.2d at 1161; accord Landry v. FDIC, 204 F.3d 1125, 1135 (D.C. Cir. 2000). The doctrine protects agency documents from discovery “so that the public will benefit from more effective government.” In re Franklin Nat’l Bank Sec. Litig., 478 F. Supp. at 582.
That justification is “attenuated,” however, when “the public’s interest in effective government would be furthered by disclosure,” id., such as where a court reviews the agency action for lawfulness. After all,
12

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Congress thought that the public interest would be best served by judicial review on the “whole” record, 5 U.S.C. § 706—that is, “neither more nor less information than . . . the agency [had] when it made its decision.” Walter O. Boswell Mem’l Hosp., 749 F.2d at 792. Thus, while the deliberativeprocess privilege has its place, the interests it serves do not outweigh a court’s need to consider materials “germane to the [agency] decision and not duplicated elsewhere in the record.” Suffolk Cty. v. Sec’y of Interior, 562 F.2d 1368, 1384 (2d Cir. 1977); see In re Grand Jury Subpoena Dated Aug. 9, 2000, 218 F. Supp. 2d 544, 553 (S.D.N.Y. 2002) (“The deliberative process privilege is qualified; it may be overcome by a showing of need . . . .”).
The divided decision in San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Commission, 789 F.2d 26 (D.C. Cir. 1986) (en banc), provides no persuasive argument to the contrary. That case arose from a formal Nuclear Regulatory Commission adjudication. See id. at 29 (citing 42 U.S.C. § 2239(a)). To protect the “frank deliberations of Commission members,” the court refused to supplement the record with a transcript of the Commissioners’ closed-door deliberations. 789 F.2d at 44; see also id. at 45-46 (Mikva, J., concurring). That refusal is best understood as a particularized determination that the deliberative-process concerns that
13

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would flow from disclosure of that transcript outweighed the need for disclosure in that case. The court did not address the contents of administrative records in informal agency proceedings, which do not afford similar procedural safeguards, see supra pp. 7-8, and which do not have the same constraints on the “record,” 5 U.S.C. § 556(e). Nor did the court hold that agencies may exclude deliberative-process materials from administrative records on their own say-so, without producing a privilege log and justifying the exclusion.
The possibility for mischief created by Defendants’ approach is disturbing. Federal agencies often do include deliberative materials in their agency records, at least when they believe the materials will help them. For example, in Epsilon Electronics, Inc. v. U.S. Department of the Treasury, the federal agency included in the record and relied in court on an internal, predecisional agency memo analyzing the evidence before the agency. 857 F.3d 913, 928 (D.C. Cir. 2017). And in American Bioscience, Inc. v. Thompson, the agency included in the administrative record a declaration of its decisionmaker intended to explain his otherwise inadequately explained decision. 269 F.3d 1077, 1082-83 (D.C. Cir. 2002). That is much like the sort of decisionmaker testimony that Defendants claim is impermissible in the
14

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present case. Allowing an agency to pick when deliberative materials are included or excluded from the record for judicial review would allow the agency to “withhold evidence unfavorable to its case,” Walter O. Boswell Mem’l Hosp., 749 F.2d at 792, rendering judicial review ineffective.
If an agency seeks to withhold a document (or part of a document11) as deliberative-process privileged, the court should require the agency to assert the privilege as to each document. Privilege determinations are not so selfevident that an agency, defending a lawsuit, should be trusted to make the determination on its own, without disclosing to the parties or the court what is being withheld and why. A privilege log is essential to let the opposing party and the court “determine whether specific items on the log are actually privileged.”12 EEOC v. BDO USA, L.L.P., 856 F.3d 356, 364 (5th Cir. 2017).
A privilege log alone is not enough, however. Since the deliberativeprocess privilege is qualified, the agency must also show, when it invokes
11 The deliberative-process privilege does not protect reasonably segregable factual information. See Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983).
12 Cases overruling agency deliberative-process privilege claims are common. See, e.g., Assembly of Cal., 968 F.2d at 920-23; Ocean Mammal Inst. v. Gates, No. Civ. 07-00254, 2008 WL 2185180, at *14-16 (D. Haw. May 27, 2008).
15

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the privilege, that “the consequences of disclosure of the information,” Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 405 n.11 (D.C. Cir. 1984), outweigh the public interest in searching and accurate judicial review. See Citizens to Preserve Overton Park, 401 U.S. at 416; Walter O. Boswell Mem’l Hosp., 749 F.2d at 792; see also United States v. Nixon, 418 U.S. 683, 706 (1974) (rejecting executive privilege claim based “solely on the broad, undifferentiated claim of public interest in the confidentiality of . . . conversations” between presidents and advisors).
The agency must make this showing through an affidavit of “the head of the department after actual personal consideration.” United States v. Rozet, 183 F.R.D. 662, 665 (N.D. Cal. 1998) (holding that staff attorneys may not invoke the privilege); see Northrop Corp., 751 F.2d at 405 n.11; United States v. Reynolds, 345 U.S. 1, 7-8 (1953). If an agency does not make that showing, its deliberative materials remain in the record, and must be produced to allow effective judicial review.13
13 Defendants’ protests about depositions of high-ranking officials, Pet. 16-17, 19-20, are not a basis to exclude deliberative-process materials from administrative records. Whether discovery is appropriate and what an administrative record includes are different questions, especially where the complaint alleges both record-review and non-record-review claims. Defendants’ suggestion, see id. at 19-20, that including deliberative-process
16

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CONCLUSION The “whole record,” 5 U.S.C § 706, for judicial review includes all material considered directly or indirectly by the agency decisionmaker, including material considered by subordinates. If an agency wishes to exclude a document from an administrative record as deliberative-process privileged, it must justify that assertion by producing a privilege log and showing, with respect to each document, that the interests the privilege serves outweigh the need for accurate and meaningful judicial review.

November 1, 2017

Respectfully submitted,
/s/ Michael E. Wall MICHAEL E. WALL Natural Resources Defense Council 111 Sutter Street, 21st Floor San Francisco, CA 94104 (415) 875-6100

materials in an administrative record could serve no purpose but to improperly “probe the mental processes” of the ultimate decisionmaker, United States v. Morgan, 313 U.S. 409, 422 (1941), also implicitly misrepresents the contours of the deliberative-process doctrine. The deliberative-process privilege may encompass an array of existing agency documents, written and compiled by staff, that constitute no more than a contemporaneous record of an agency doing its work. See Warner Commc’ns, 742 F.2d at 1161. Morgan, by contrast, involved an attempt to depose the Secretary of Agriculture. Id. These are not equivalents.
17

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CERTIFICATE OF COMPLIANCE This amicus brief complies with the type-volume limitation of Fed. R.

App. P. 29(a)(5), to the extent that rule applies in mandamus proceedings,

because the amicus brief contains 3660 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with

the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style

requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a

proportionally spaced typeface using Microsoft Office Word 2016 and 14-

point Book Antiqua font.

November 1, 2017

/s/ Michael E. Wall Michael E. Wall

18

Case: 17-72917, 11/01/2017, ID: 10640486, DktEntry: 26-1, Page 28 of 28

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk

of the Court for the United States Court of Appeals for the Ninth Circuit by

using the appellate CM/ECF system on November 1, 2017.

I certify that all participants in the case are registered CM/ECF users

and that service will be accomplished by the appellate CM/ECF system.

Dated: November 1, 2017

/s/ Michael E. Wall Michael E. Wall

19

Case: 17-72917, 11/01/2017, ID: 10640486, DktEntry: 26-2, Page 1 of 7
No. 17-72917 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
In re: UNITED STATES OF AMERICA, et al., Petitioners.
______________________ UNITED STATES OF AMERICA; DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; and ELAINE DUKE, Acting
Secretary of Homeland Security, Petitioners-Defendants,
v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent,
REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE
OF MARYLAND; STATE OF MINNESOTA; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; NORMA RAMIREZ; JIRAYUT LATTHIVONGSKORN; COUNTY OF SANTA
CLARA; and SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521, Real Parties in Interest-Plaintiffs.
MOTION OF NATURAL RESOURCES DEFENSE COUNCIL FOR LEAVE TO FILE BRIEF AMICUS CURIAE IN
SUPPORT OF REAL PARTIES IN INTEREST-PLAINTIFFS
MICHAEL E. WALL Natural Resources Defense Council 111 Sutter Street, 21st Floor San Francisco, CA 94104 (415) 875-6100

Case: 17-72917, 11/01/2017, ID: 10640486, DktEntry: 26-2, Page 2 of 7
CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, amicus curiae Natural Resources Defense Council, Inc., submits that it has no parent corporations and no publicly issued stock shares or securities. No publicly held corporation holds stock in amicus.
i

Case: 17-72917, 11/01/2017, ID: 10640486, DktEntry: 26-2, Page 3 of 7
Natural Resources Defense Council, Inc. (NRDC) respectfully moves for leave to file an amicus curiae brief in support of Real Parties in InterestPlaintiffs. Real Parties in Interest-Plaintiffs have consented to this motion. Counsel for Petitioners-Defendants has represented that her clients do not oppose this motion.1 I. NRDC’s Interests as Amicus
Founded in 1970, NRDC is a nonprofit environmental and health group with hundreds of thousands of members throughout the United States. NRDC’s staff of scientists, lawyers, and other professionals advance NRDC’s mission through analysis, public advocacy, and—when necessary—litigation to vindicate NRDC’s members’ rights, enforce the law, and advance its mission.
NRDC has litigated hundreds of cases involving claims against federal agencies. Much of this litigation arises under statutes that require judicial review to be conducted on an administrative record. See, e.g.,
1 No party’s counsel authored any part of the proposed amicus brief. No party or party’s counsel contributed money intended to fund the preparation or submission of the brief. No person (other than amicus curiae, its members, or its counsel) contributed money to fund any aspect of the brief.
1

Case: 17-72917, 11/01/2017, ID: 10640486, DktEntry: 26-2, Page 4 of 7
5 U.S.C. § 706. In some of that litigation, disputes have arisen about the proper scope of the administrative record. NRDC seeks leave to file this amicus brief because it wishes to ensure that the administrative records that agencies submit to the courts completely and accurately reflect agency proceedings. II. Reasons Why NRDC’s Amicus Brief Is Desirable and Relevant
NRDC’s proposed amicus brief draws on NRDC’s nearly fifty years of experience with record-review litigation against federal agencies in district and appellate courts to address two issues central to this mandamus proceeding: (1) Does the Administrative Procedure Act’s requirement that judicial review be based on the “whole record,” or the parts cited by the parties, 5 U.S.C. § 706, generally require agency administrative records to encompass all information directly and indirectly considered by the agency during the course of its proceeding? (2) When withholding materials from the administrative record based on an assertion of the qualified deliberative-process privilege, must the government identify the materials on a privilege log and justify its assertion of the qualified privilege through a declaration of the agency head showing that the agency’s interest in nondisclosure of specific
2

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documents or parts of documents outweighs the public interest in judicial review based on the whole record?
NRDC’s proposed amicus brief presents citations and analysis on both questions that are different from those in the parties’ briefs. NRDC therefore respectfully moves for leave to file its brief to assist the Court in reaching a just and accurate resolution.

November 1, 2017

Respectfully submitted,
/s/ Michael E. Wall MICHAEL E. WALL Natural Resources Defense Council 111 Sutter Street, 21st Floor San Francisco, CA 94104 (415) 875-6100

3

Case: 17-72917, 11/01/2017, ID: 10640486, DktEntry: 26-2, Page 6 of 7

CERTIFICATE OF COMPLIANCE This motion complies with the type-volume limitation of Fed. R.

App. P. 27(d)(2)(a) because it contains 429 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with

the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style

requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a

proportionally spaced typeface using Microsoft Office Word 2016 and 14-

point Book Antiqua font.

November 1, 2017

/s/ Michael E. Wall Michael E. Wall

4

Case: 17-72917, 11/01/2017, ID: 10640486, DktEntry: 26-2, Page 7 of 7

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk

of the Court for the United States Court of Appeals for the Ninth Circuit by

using the appellate CM/ECF system on November 1, 2017.

I certify that all participants in the case are registered CM/ECF users

and that service will be accomplished by the appellate CM/ECF system.

Dated: November 1, 2017

/s/ Michael E. Wall Michael E. Wall

5

 
 November 1, 2017
BY ELECTRONIC DELIVERY
Molly Dwyer, Clerk of Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939
Re: In re: USA, et al v. USDC-CAS, 17-72917
Dear Ms. Dwyer,
The organizations listed below join the amicus brief for United We Dream in support of the opposition to the petition for a writ of mandamus and motion for stay, filed on October 24, 2017. (Doc. No. 12-2.)
 Asian Pacific American Labor Alliance  Asian Americans Advancing Justice  National Center for Lesbian Rights  National Center for Transgender Equality  National Domestic Worker's Alliance  Planned Parenthood Federation of America  South Asian Americans Leading Together  UltraViolet  UndocuBlack Network
As required by Rules 26.1 and 29(c) of the Federal Rules of Appellate Procedure, each of these organizations states that it has no parent corporation and no publicly held corporation owns 10% or more of its stock.

A copy of this letter will be served on all counsel of record.
Respectfully yours,
/s/ Alvina Yeh Alvina Yeh Executive Director Asian Pacific American Labor Alliance (APALA), AFL-CIO
/s/ Megan Essaheb Megan Essaheb Director of Immigration Advocacy Asian Americans Advancing Justice
/s/ Tyrone Hanley, Esq. Tyrone Hanley, Esq. Policy Counsel National Center for Lesbian Rights
/s/ Harper Jean Tobin, Esq. Harper Jean Tobin, Esq. Director of Policy National Center for Transgender Equality
/s/ Anna Duncan Anna Duncan Campaign Organizer, We Belong Together National Domestic Workers Alliance
/s/ Bridgette Gomez Bridgette Gomez Director of Latinx Outreach and Engagement, Strategic Partnerships Planned Parenthood Federation of America

/s/ Lakshmi Sridaran Lakshmi Sridaran Director of National Policy and Advocacy South Asian Americans Leading Together
/s/ Audine Tayag Audine Tayag Campaign Director UltraViolet
/s/Patrice S. Lawrence Patrice S. Lawrence Policy & Advocacy UndocuBlack Network
cc: counsel of record (via ECF)

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on November 1, 2017. I certify that all parties in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Executed this 1st day of November, 2017.
/s/ Peter Karanjia Peter Karanjia

 
 Case 3:17-cv-05329-WHA Document 52 Filed 11/20/17 Page 1 of 2

United States District Court For the Northern District of California

1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9

10

11 THE REGENTS OF THE UNIVERSITY OF

12

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

13 University of California,

14

Plaintiffs,

15

v.

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA No. C 17-05813 WHA

16

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE

17

DUKE, in her official capacity as Acting Secretary of the Department of Homeland

18 Security,

ONE-MONTH CONTINUANCE OF DUE DATE FOR AUGMENTED ADMINISTRATIVE RECORD AND TEMPORARY STAY OF DISCOVERY

19

Defendants. /

20

21

After consideration of all briefing, the Court stands by its tentative order.

22

The previous schedule is hereby modified to allow the government an additional month

23 to compile and to file the augmented administrative record, which due date will now be

24 DECEMBER 22, 2017, AT NOON. Although the government need not file until that date, it must

25 promptly locate and compile the additional materials and be ready to file the fully augmented

26 record by December 22, this caution being necessary in order to have a realistic opportunity to

27 reach a final decision on the merits before the March 5 termination date. Additionally, all

28 discovery is hereby STAYED until DECEMBER 22, 2017, AT NOON.

Case 3:17-cv-05329-WHA Document 52 Filed 11/20/17 Page 2 of 2

United States District Court For the Northern District of California

1

Meanwhile, we will proceed with the motion to dismiss and competing motion for

2 provisional relief as scheduled. If the motion to dismiss is denied, then we will promptly set a

3 practical schedule to reach the merits with the benefit of the augmented record.

4

Except to the foregoing extent, both emergency motions for stay are DENIED.

5

6

7

IT IS SO ORDERED.

8

9 Dated: November 20, 2017.
10
11

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 
 Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-1, Page 1 of 18

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
NOV 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

In re: UNITED STATES OF AMERICA; DONALD J. TRUMP; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, ______________________________
UNITED STATES OF AMERICA; DONALD J. TRUMP; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity as Acting Secretary of the Department of Homeland Security,

No. 17-72917
D.C. Nos. 3:17-cv-05211-WHA 3:17-cv-05235-WHA 3:17-cv-05329-WHA 3:17-cv-05380-WHA 3:17-cv-05813-WHA
Northern District of California, San Francisco
ORDER

Petitioners,

v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO,

Respondent,

REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, In her official capacity as President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; VIRIDIANA CHABOLLA

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-1, Page 2 of 18
MENDOZA; NORMA RAMIREZ; COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521; JIRAYUT LATTHIVONGSKORN; SAUL JIMENEZ SUAREZ,
Real Parties in Interest. Petition for Writ of Mandamus
Argued and Submitted November 7, 2017 Pasadena, California
Before: WARDLAW, GOULD, and WATFORD, Circuit Judges. WARDLAW and GOULD, Circuit Judges:
On September 5, 2017, the Acting Secretary of the Department of Homeland Security (“DHS”), Elaine Duke, announced the end of DHS’s Deferred Action for Childhood Arrivals policy (“DACA”), effective March 5, 2018. Begun in 2012, DACA provided deferred action for certain individuals without lawful immigration status who had entered the United States as children. Several sets of plaintiffs sued to enjoin the rescission of DACA under the Administrative Procedure Act (“APA”) and under various constitutional theories not relevant here.
The merits of those claims are not before us today. The only issue is a procedural one, raised by the government’s petition for a writ of mandamus. The
2

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government asks us to permanently stay the district court’s order of October 17, 2017, which required it to complete the administrative record.1 See Order re Motion to Complete Administrative Record, Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. C 17-05211 WHA, 2017 WL 4642324 (October 17, 2017) (“Order”). We have jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651. Because the district court did not clearly err by ordering the completion of the administrative record, we hold that the government has not met the high bar required for mandamus relief.
One note at the outset: We are not unmindful of the separation-of-powers concerns raised by the government. However, the narrow question presented here simply does not implicate those concerns. We consider only whether DHS failed to comply with its obligation under the APA to provide a complete administrative record to the court—or, more precisely, whether the district court clearly erred in so holding. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“[R]eview is to be based on the full administrative record that was before the Secretary at the time he made his decision.”). This obligation is
1 Issues regarding supplementation—as opposed to completion—of the record and the propriety of discovery on the non-APA claims, including the propriety of depositions, are not properly before us at this time, and we do not address them here.
3

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imposed to ensure that agency action does not become effectively unreviewable, for “[i]f the record is not complete, then the requirement that the agency decision be supported by ‘the record’ becomes almost meaningless.” Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993). Assuring that DHS complies with this requirement—imposed by the APA on all agencies and embodied in decades of precedent—is undoubtedly a proper judicial function.
1. “The writ of mandamus is a drastic and extraordinary remedy reserved only for really extraordinary cases.” In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011) (quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947) (internal quotation marks omitted)). Indeed, “only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion will justify the invocation of this extraordinary remedy.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004) (internal quotation marks and citations omitted). Ultimately, the issuance of the writ is “in large measure . . . a matter of the court’s discretion.” Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1023 (9th Cir. 2014) (quoting United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978)).
Our discretion is guided by the five factors laid out in Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir. 1977). However, we need not consider four
4

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of those five factors here, because “the absence of factor three—clear error as a matter of law—will always defeat a petition for mandamus.” In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016) (quoting In re United States, 791 F.3d 945, 955 (9th Cir. 2015)). This factor—whether “[t]he district court’s order is clearly erroneous as a matter of law,” Bauman, 557 F.2d at 654–55—“is significantly deferential and is not met unless the reviewing court is left with a definite and firm conviction that a mistake has been committed.” In re Bundy, 840 F.3d at 1041 (quoting In re United States, 791 F.3d at 955).
2. The district court’s order is not clearly erroneous as a matter of law. APA § 706 provides that arbitrary and capricious review shall be based upon “the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. The whole record “includes everything that was before the agency pertaining to the merits of its decision.” Portland Audubon, 984 F.2d at 1548; see also, e.g., James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (“The administrative record includes all materials compiled by the agency that were before the agency at the time the decision was made.”) (internal quotation marks and citations omitted). More specifically, we have explained that the whole administrative record “consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency’s position.”
5

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Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (internal quotation marks omitted); see also Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993) (same). The record is thus not necessarily limited to “those documents that the agency has compiled and submitted as ‘the’ administrative record.” Thompson, 885 F.2d at 555 (internal quotation marks omitted).
At the initial case management conference before the district court, the government agreed to produce the complete administrative record on October 6, 2017. On that date, the government submitted as “the” administrative record fourteen documents comprising a mere 256 pages, all of which are publicly available on the internet. Indeed, all of the documents in the government’s proffered record had previously been included in filings in the district court in this case, and 192 of its 256 pages consist of the Supreme Court, Fifth Circuit, and district court opinions in the Texas v. United States litigation.2
Faced with this sparse record, and on the plaintiffs’ motion (opposed by the government), the district court ordered the government to complete the record to include, among other things, all DACA-related materials considered by
2 That lawsuit challenged a related but distinct deferred action policy, Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. See United States v. Texas, 136 S. Ct. 2271 (2016); Texas v. United States, 809 F.3d 134 (5th Cir. 2015); Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).
6

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subordinates or other government personnel who then provided written or verbal input directly to Acting Secretary Duke. The district court excluded from the record documents that it determined in camera are protected by privilege. Order at *8.
3. The administrative record submitted by the government is entitled to a presumption of completeness which may be rebutted by clear evidence to the contrary. Bar MK Ranches, 994 F.2d at 740; see also Thompson, 885 F.2d at 555 (noting that the administrative record “is not necessarily those documents that the agency has compiled and submitted as ‘the’ administrative record.”). The district court correctly stated this legal framework and concluded that the presumption of completeness had been rebutted here. Order at *5. This conclusion was not clear legal error: Put bluntly, the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people3
3 See U.S. Citizenship and Immigration Services, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012–2017 (June 30) (Sept. 20, 2017), goo.gl/UcGJww.
7

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based solely on 256 pages of publicly available documents is not credible, as the district court concluded.4
The district court identified several specific categories of materials that were likely considered by the Acting Secretary or those advising her, but which were not included in the government’s proffered record. For example, the record contains no materials from the Department of Justice or the White House—other than a onepage letter from Attorney General Jefferson B. Sessions—despite evidence that both bodies were involved in the decision to end DACA, including the President’s own press release taking credit for the decision.5 Nor does the proffered record include any documents from Acting Secretary Duke’s subordinates; we agree with the district court that “it strains credulity” to suggest that the Acting Secretary decided to terminate DACA “without consulting one advisor or subordinate within DHS.” Order at *4. And the proffered record contains no materials addressing the change of position between February 2017—when then-Secretary John Kelly affirmatively decided not to end DACA—and Acting Secretary Duke’s September
4 The dissent agrees that “a policy shift of that magnitude presumably would not have been made without extensive study and analysis beforehand.” Dissent at 1.
5 See Press Release, White House Office of the Press Secretary, President Donald J. Trump Restores Responsibility and the Rule of Law to Immigration (Sept. 5, 2017), https://www.whitehouse.gov/the-press-office/2017/09/05/ president-donald-j-trump-restores-responsibility-and-rule-law.
8

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-1, Page 9 of 18
2017 decision to do the exact opposite, despite the principle that reasoned agency decision-making “ordinarily demand[s] that [the agency] display awareness that it is changing position” and “show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
At oral argument, the government took the position that because the Acting Secretary’s stated justification for her decision was litigation risk, materials unrelated to litigation risk need not be included in the administrative record. Simply put, this is not what the law dictates. The administrative record consists of all materials “considered by agency decision-makers,” Thompson, 885 F.2d at 555 (emphasis added), not just those which support or form the basis for the agency’s ultimate decision. See also, e.g., Amfac Resorts, LLC v. U.S. Dep’t of Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001) (“[A] complete administrative record should include all materials that ‘might have influenced the agency’s decision,’ and not merely those on which the agency relied in its final decision.”) (quoting Bethlehem Steel v. EPA, 638 F.2d 994, 1000 (7th Cir. 1980)). And even if the record were properly limited to materials relating to litigation risk, the district court did not clearly err in concluding that it is implausible that the Acting Secretary would make a litigation-risk decision “without having generated any materials analyzing
9

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-1, Page 10 of 18
the lawsuit or other factors militating in favor of and against the switch in policy.” Order at *4.
It was therefore not clear error for the district court to conclude that the presumption of regularity that attaches to the government’s proffered record is rebutted, and that ordering completion of the record was necessary and appropriate.
4. Nor did the district court clearly err in identifying the materials that should have been included within the scope of the complete administrative record. The government challenges the decision to include materials considered by subordinates who then briefed the Acting Secretary, but this decision was not clear legal error. We have held that the record properly includes “all documents and materials directly or indirectly considered by agency decision-makers,” Thompson, 885 F.2d at 555, but have not yet clarified the exact scope of “indirectly considered.” District courts in this and other circuits, however, have interpreted that phrase to include materials relied on by subordinates who directly advised the ultimate decision-maker. See, e.g., Nat. Res. Def. Council v. Gutierrez, No. C 01-0421 JL, 2008 WL 11358008, at *6 (N.D. Cal. Jan. 14, 2008) (“To the extent [the government argues] that only those documents that reached [the agency’s] most senior administrators were in fact ‘considered,’ courts have rejected that view as contrary to the Ninth and other Circuits’ pronouncements . . . .”);
10

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-1, Page 11 of 18
GeorgiaCarry.org, Inc. v. U.S. Army Corps of Eng’rs, 212 F. Supp. 3d 1348, 1352 (N.D. Ga. 2016) (“Documents and materials indirectly considered by agency decision-makers are those that may not have literally passed before the eyes of the decision-makers, but were so heavily relied on in the recommendation that the decisionmaker constructively considered them.”); Amfac Resorts, 143 F. Supp. 2d at 12 (“[I]f the agency decisionmaker based his decision on the work and recommendations of subordinates, those materials should be included as well.”).6
Moreover, as noted in the district court’s October 17 order, a Department of Justice guidance document directs agencies compiling the administrative record to “[i]nclude all documents and materials prepared, reviewed, or received by agency personnel and used by or available to the decision-maker, even though the final decision-maker did not actually review or know about the documents and materials.” U.S. Dep’t of Justice, Env’t and Nat. Res. Div., Guidance to Federal Agencies on Compiling the Administrative Record 3 (Jan. 1999) (emphasis added). It further provides that the administrative record should include “communications
6 We also note that the government has conceded in other cases that documents relied on by subordinates are properly part of the administrative record. See Oceana, Inc. v. Pritzker, No. 16-cv-06784-LHK (SVK), 2017 WL 2670733, at *4 (N.D. Cal. June 21, 2017) (“Defendants acknowledge . . . that a decision-maker can be deemed to have ‘constructively considered’ materials that, for example, were relied on by subordinates . . . .”).
11

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-1, Page 12 of 18
the agency received from other agencies . . . documents and materials that support or oppose the challenged agency decision . . . minutes of meetings or transcripts thereof . . . [and] memorializations of telephone conversations and meetings, such as a memorandum or handwritten notes.” Id. at 3–4. The district court’s October 17 order complies with this Department of Justice guidance; the government’s proffered record does not.
We recognize that such guidance is not binding; we nevertheless find it persuasive as a statement by the Department of Justice as to what should be included in a complete administrative record. We also note that the guidance document DHS failed to comply with here was inexplicably rescinded the very same day that the government filed this petition for a writ of mandamus.
Given that the district court’s interpretation of Thompson is consistent with the rulings of other district courts, comports with the Department of Justice’s guidance on administrative records, and is not foreclosed by Ninth Circuit authority, we cannot say that the district court’s interpretation was clearly erroneous as a matter of law. See In re Swift Transp. Co., 830 F.3d 913, 916–17 (9th Cir. 2016) (“It is well established that ‘[t]he absence of controlling precedent
12

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-1, Page 13 of 18
weighs strongly against a finding of clear error [for mandamus purposes].’”) (quoting In re Van Dusen, 654 F.3d at 845).7
5. The district court’s order that the government complete the record with documents considered by former DHS Secretary John Kelly in the course of deciding not to terminate DACA in February 2017 also withstands mandamus scrutiny. This is not because of some freestanding requirement that all the materials underlying a previous decision on a similar subject are always part of the administrative record; rather, it simply recognizes that both decisions were part of an ongoing decision-making process regarding deferred action: In February 2017, Secretary Kelly ended other prioritization programs, but left DACA and DAPA in place; in June 2017, Secretary Kelly ended DAPA but left DACA intact; finally, in September 2017, Acting Secretary Duke ended DACA. The materials considered by Secretary Kelly in the course of deciding against ending DACA in February
7 There is tension within our decisions about whether controlling Ninth Circuit precedent is a necessary precondition to finding clear error as a matter of law. Compare In re Swift Transp. Co., 830 F.3d at 917 (“If ‘no prior Ninth Circuit authority prohibited the course taken by the district court, its ruling is not clearly erroneous.’”) (quoting In re Morgan, 506 F.3d 705, 713 (9th Cir. 2007)), with Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir. 2010) (“[T]he necessary clear error factor does not require that the issue be one as to which there is established precedent.”) (emphasis added). At a minimum, however, the lack of such authority “weighs strongly” against finding clear error. In re Swift Transp. Co., 830 F.3d at 916.
13

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-1, Page 14 of 18
2017 did not cease to be “before the agency” for purposes of the administrative record during that seven-month evolution in policy. Thompson, 885 F.2d at 555–56. The district court’s decision to order their inclusion in the record was therefore not clear legal error.
6. Finally, the government makes two categorical arguments with respect to privilege.8 First, it contends that Cheney v. U.S. District Court, 542 U.S. 367 (2004), bars the completion of the administrative record with any White House materials, because requiring White House officials to search for and assert privilege as to individual documents would be an unwarranted intrusion into executive decision-making. Cheney, of course, did not involve an administrative agency’s obligation under the APA to provide the court with the record underlying its decision-making. It instead involved civil discovery requests that the Supreme Court described variously as “overbroad” and as “ask[ing] for everything under the sky.” Id. at 383, 387. We do not read Cheney as imposing a categorical bar against requiring DHS to either include White House documents in a properly-
8 The government also appears to challenge the district court’s individual privilege determinations, but it has provided little in the way of argument regarding the specific documents ordered disclosed by the district court. We are unable to conclude that the government has met its burden of showing that the district court’s privilege analysis was clearly erroneous as a matter of law.
14

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-1, Page 15 of 18
defined administrative record or assert privilege individually as to those documents.
Moreover, the reasoning of Cheney appears to be based substantially on the fact that the Vice President himself was the subject of discovery. See id. at 381 (“Here, however, the Vice President and his comembers on the NEPDG are the subjects of the discovery orders.”), 382 (“These separation-of-powers considerations should inform a court of appeals’ evaluation of a mandamus petition involving the President or the Vice President.”). Here, although the government is of course correct that the President is named as a defendant in some of the underlying lawsuits, there is no indication that either his documents or those of the Vice President would fall within the completed administrative record as ordered by the district court. Cheney therefore does not render the district court’s order clearly erroneous.
Second, the government argues that it was clear legal error to require a privilege log and to evaluate documents allegedly protected by the deliberative process privilege on an individual basis, since “deliberative” materials are not properly within the administrative record at all. As noted above, the district court reviewed in camera each of the documents as to which the government asserted the deliberative process privilege, and ordered the inclusion of only those documents
15

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that met the balancing standard laid out in FTC v. Warner Commc’ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The court stated that it would similarly review in camera any additional documents as to which the government claims privilege in the future. Order at *8.
As the government acknowledges, we have not previously addressed whether assertedly deliberative documents must be logged and examined or whether the government may exclude them from the administrative record altogether. However, many district courts within this circuit have required a privilege log and in camera analysis of assertedly deliberative materials in APA cases. See, e.g., Ctr. for Food Safety v. Vilsack, No. 15-cv-01590, 2017 WL 1709318, at *5 (N.D. Cal. May 3, 2017); Inst. for Fisheries Res. v. Burwell, No. 16-cv-01574 VC, 2017 WL 89003, at *1 (N.D. Cal. Jan. 10, 2017); California ex rel. Lockyer v. U.S. Dep’t of Agric., No. C05-03508 EDL, 2006 WL 708914, at *4 (N.D. Cal. March 16, 2008). Again, “the absence of controlling precedent” and the practice of the district courts “weigh[] strongly against a finding of clear error” for purposes of mandamus. In re Swift Transp. Co., 830 F.3d at 916–17 (citation omitted).
We further note that the “deliberative” materials at issue in the main case cited by the government, San Luis Obispo Mothers for Peace v. U.S. Nuclear
16

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-1, Page 17 of 18
Regulatory Comm’n, 789 F.2d 26 (D.C. Cir. 1986) (en banc), were transcripts of literal deliberations among the members of a multi-member agency board. See id. at 44. Where—as in Mothers for Peace—an agency is headed by a multi-member board, the deliberations among those members are analogous to the internal mental processes of the sole head of an agency, and thus are generally not within the scope of the administrative record. Cf. Portland Audubon, 984 F.2d at 1549 (distinguishing Mothers for Peace as involving “the internal deliberative processes of the agency [and] the mental processes of individual agency members”) (emphases added). No such deliberations among a multi-member agency are at issue here. The district court’s decision to require a privilege log and evaluate claims of privilege on an individual basis before including documents in the record was not clearly erroneous as a matter of law.
* * * The district court’s October 17, 2017 order represents a reasonable approach to managing the conduct and exigencies of this important litigation—exigencies which were dictated by the government’s March 5, 2018 termination date for DACA. In order for the government to prevail in its request for the extraordinary remedy of mandamus, we must be “left with a definite and firm conviction that a mistake has been committed.” In re Bundy, 840 F.3d at 1041 (quoting In re United
17

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States, 791 F.3d at 955). We are left with no such conviction here, and mandamus relief is therefore not appropriate.
Accordingly, the stay of proceedings entered on October 24, 2017 is lifted. PETITION DENIED.
18

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In re United States of America, No. 17-72917 WATFORD, Circuit Judge, dissenting:

FILED
NOV 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

I understand why the district court ordered the Department of Homeland

Security (DHS) to provide a more fulsome administrative record. The agency’s

decision to rescind DACA will profoundly disrupt the lives of hundreds of

thousands of people, and a policy shift of that magnitude presumably would not

have been made without extensive study and analysis beforehand. But the desire

for greater insight into how DHS arrived at its decision is not a legitimate basis for

ordering the agency to expand the administrative record, unless the plaintiffs make

a threshold factual showing justifying such action. They have not done so here.

As a result, I think the district court’s order constitutes “a clear abuse of

discretion,” and the burden imposed by the order is exceptional enough to warrant

the extraordinary remedy of mandamus. Cheney v. United States District Court for

the District of Columbia, 542 U.S. 367, 380 (2004).

The district court’s order violates two well-settled principles governing

judicial review of agency action under the Administrative Procedure Act. The first

is that a court ordinarily conducts its review “based on the record the agency

presents to the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S.

729, 743–44 (1985); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (per

curiam). If the record compiled by the agency is inadequate to support the

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-2, Page 2 of 6
Page 2 of 6 challenged action, the reviewing court will usually be required to vacate the agency’s action and remand for additional investigation or explanation. Florida Power, 470 U.S. at 744. So in most cases the agency bears the risk associated with filing an incomplete record, not the challengers.
The second principle is that documents reflecting an agency’s internal deliberative processes are ordinarily not part of the administrative record. See In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 156 F.3d 1279, 1279–80 (D.C. Cir. 1998); Kansas State Network, Inc. v. FCC, 720 F.2d 185, 191 (D.C. Cir. 1983). An agency generally has no obligation to include documents that were prepared to assist the decision-maker in arriving at her decision, such as memos or emails containing opinions, recommendations, or advice. These pre-decisional materials are not deemed part of the administrative record because they are irrelevant to the reviewing court’s task. The court’s function is to assess the lawfulness of the agency’s action based on the reasons offered by the agency, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 50 (1983), not to “probe the mental processes” of agency decision-makers in reaching their conclusions. Morgan v. United States, 304 U.S. 1, 18 (1938). Requiring routine disclosure of deliberative process materials would also chill the frank

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-2, Page 3 of 6
Page 3 of 6 discussions and debates that are necessary to craft well-considered policy. See Assembly of the State of California v. Department of Commerce, 968 F.2d 916, 920 (9th Cir. 1992); San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 789 F.2d 26, 45 (D.C. Cir. 1986) (en banc) (plurality opinion).
There are exceptions to these general rules. First, expansion of the record may be required when the agency fails to make formal findings and thus leaves the reviewing court unable to discern the agency’s reasons for taking the action that it did. See Public Power Council v. Johnson, 674 F.2d 791, 793–94 (9th Cir. 1982). (This exception doesn’t apply here because the memo issued by the Acting Secretary explicitly states her asserted reason for rescinding DACA: concern that the program would be invalidated in threatened litigation.) Second, the record may be expanded if there is evidence that the agency cherry-picked the materials it included by omitting factual information undermining the conclusions it reached. See Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534, 1548 (9th Cir. 1993). And third, documents reflecting an agency’s internal deliberations may on occasion be made part of the record, but only if the challengers make “a strong showing of bad faith or improper behavior” on the part of agency decision-makers. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds by Califano v. Sanders, 430

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U.S. 99 (1977); In re Subpoena Duces Tecum, 156 F.3d at 1279–80.

Page 4 of 6

The plaintiffs have not made the showing necessary to trigger either of the

latter two exceptions. They have not shown any likelihood that factual information

considered by the Acting Secretary and relevant to her decision has been omitted

from the record. Indeed, it would be implausible to think that any such material

exists, given the nature of the reason asserted by the Acting Secretary for

rescinding DACA. Concern over the program’s vulnerability to legal challenge

would rest not on factual information but on the legal analysis of lawyers.

Documents analyzing DACA’s potential legal infirmities, prepared to assist the

Acting Secretary in assessing the gravity of the litigation risk involved, fall

squarely within the category of deliberative process materials mentioned above.

They are presumptively outside the scope of what must be included in the

administrative record (and may be privileged in any event).

Nor have the plaintiffs attempted at this stage of the case to show bad faith

or improper behavior on the part of the Acting Secretary. To be sure, they assert in

their brief that they suspect her stated reason for rescinding DACA is pretextual.

But bare assertions of that sort fall far short of the showing needed to overcome the

presumption that agency decision-makers have acted for the reasons they’ve given.

Because the plaintiffs have failed to establish that any of these exceptions

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-2, Page 5 of 6
Page 5 of 6 apply, I don’t think the district court’s order can stand. The court directed DHS to include in the administrative record all DACA-related “emails, letters, memoranda, notes, media items, opinions, and other materials” considered by the Acting Secretary, and all such materials considered by any other government official—including officials from the Department of Justice and the White House—who provided the Acting Secretary with written or verbal input on the decision to rescind DACA. The court further expanded the record to include “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.”
In my view, the district court exceeded the scope of its lawful authority to expand the administrative record. The order sweeps far beyond materials related to the sole reason given for rescinding DACA—its supposed unlawfulness and vulnerability to legal challenge. The order requires the inclusion of all documents mentioning DACA-related issues of any sort, and is overbroad for that reason alone. But even if the order had been limited to documents analyzing the risk that DACA might be invalidated, those materials are deliberative in character and thus could not be made part of the administrative record absent a showing of bad faith or improper behavior. And to the extent the order will compel the production of

Case: 17-72917, 11/16/2017, ID: 10657551, DktEntry: 35-2, Page 6 of 6
Page 6 of 6 communications between the Acting Secretary and high-level officials in the White House—including, potentially, the President himself—the order raises the same sensitive separation-of-powers concerns that made mandamus relief appropriate in Cheney. See 542 U.S. at 389–90.
These departures from settled principles are enough to establish that the district court’s order is “clearly erroneous as a matter of law,” which is the most important of the factors we consider when deciding whether to grant mandamus relief. In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016). The other factors weigh in favor of granting relief as well. The order isn’t immediately appealable, and if relief is denied the harm inflicted will be immediate and irreparable. As the declarations submitted by the government attest, the search for documents responsive to the court’s order will be burdensome and intrusive, given the large number of government officials who may have provided written or verbal input to the Acting Secretary. And the damage caused by public disclosure of otherwise privileged materials can’t be undone following an appeal from the final judgment.
This strikes me as a classic case in which mandamus relief is warranted, and I would therefore grant the writ.

 
 No. 17-72917
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
In re UNITED STATES OF AMERICA, et al., Petitioners.
UNITED STATES OF AMERICA; DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; and ELAINE DUKE, Acting Secretary of Homeland Security, Petitioners-Defendants,
v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent,
REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF
MARYLAND; STATE OF MINNESOTA; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; NORMA RAMIREZ; JIRAYUT LATTHIVONGSKORN; COUNTY OF SANTA CLARA; and
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521, Real Parties in Interest-Plaintiffs.
EMERGENCY MOTION FOR STAY
CHAD A. READLER Principal Deputy Assistant Attorney General
BRIAN STRETCH United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

CIRCUIT RULE 27-3 CERTIFICATE
Counsel for Defendants:
Mark B. Stern (Mark.Stern@usdoj.gov) Abby C. Wright (Abby.Wright@usdoj.gov) Thomas Pulham (Thomas.Pulham@usdoj.gov) U.S. Department of Justice 950 Pennsylvania Ave. NW Washington, D.C. 20530 Telephone: (202) 514-2000 Fax: (202) 514-8151
Counsel for Plaintiffs:
Regents of the University of California et al.:
Jeffrey M. Davidson Covington & Burling LLP One Front Street, 35th Floor San Francisco, CA 94111-5356 Telephone: (415) 591-6000 Facsimile: (415) 591-6091 Email: jdavidson@cov.com
Lanny A. Breuer Mark H. Lynch Alexander A. Berengaut Megan A. Crowley One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 Telephone: (202) 662-6000 Facsimile: (202) 662-6291 Email: lbreuer@cov.com, mlynch@cov.com, aberengaut@cov.com, mcrowley@cov.com

Mónica Ramírez Almadani 1999 Avenue of the Stars Los Angeles, CA 90067-4643 Telephone: (424) 332-4800 Facsimile: (424) 332-4749 Email: mralmadani@cov.com
Charles F. Robinson Margaret Wu University of California Office of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: (510) 987-9800 Facsimile: (510) 987-9757 Email: charles.robinson@ucop.edu
States of California, Maine, Maryland, and Minnesota: Michael J. Mongan Deputy Solicitor General California Department of Justice 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102-3660 (415) 703-2548 Email: michael.mongan@doj.ca.gov
Julianna F. Passe Assistant Attorney General State of Minnesota 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 Telephone: (651) 757-1136 Email: julianna.passe@ag.state.mn.us
Susan P. Herman Deputy Attorney General 6 State House Station Augusta, Maine 04333 Telephone: (207) 626-8814 Email: susan.herman@maine.gov

Steven M. Sullivan Solicitor General 200 Saint Paul Place, 20th Floor Baltimore, Maryland 21202 Telephone: (410) 576-6325 Email: ssullivan@oag.state.md.us
City of San Jose: Nancy L. Fineman nfineman@cpmlegal.com Brian Danitz bdanitz@cpmlegal.com Tamarah P. Prevost tprevost@cpmlegal.com COTCHETT, PITRE & MCCARTHY, LLP San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
Richard Doyle Nora Frimann Office of the City Attorney 200 East Santa Clara Street, 16th Floor San José, California 95113 Telephone: (408) 535-1900 Facsimile: (408) 998-3131 Email: cao.main@sanJoséca.gov

Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and Jirayut Latthivongskorn:
Theodore J. Boutrous, Jr. tboutrous@gibsondunn.com Kirsten Galler kgaller@gibsondunn.com Jesse S. Gabriel jgabriel@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520
Ethan D. Dettmer edettmer@gibsondunn.com 555 Mission Street San Francisco, CA 94105 Telephone: (415) 393-8200 Facsimile: (415) 393-8306
Mark D. Rosenbaum mrosenbaum@publiccounsel.org Judy London jlondon@publiccounsel.org PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089
Luis Cortes Romero lcortes@barreralegal.com BARRERA LEGAL GROUP, PLLC 19309 68th Avenue South, Suite R102 Kent, WA 98032 Telephone: (253) 872-4730 Facsimile: (253) 237-1591

Laurence H. Tribe larry@tribelaw.com Harvard Law School* 1575 Massachusetts Avenue Cambridge, MA 02138 Telephone: (617) 495-1767
Erwin Chemerinsky echemerinsky@law.berkeley.edu University of California, Berkeley School of Law 215 Boalt Hall Berkeley, CA 94720-7200 Telephone: (510) 642-6483
Leah M. Litman llitman@law.uci.edu University of California, Irvine School of Law 401 East Peltason Drive Irvine, CA 92697 Telephone: (949) 824-7722
County of Santa Clara and Service Employees International Union Local 521:
James R. Williams, County Counsel Greta S. Hansen Laura S. Trice laura.trice@cco.sccgov.org Marcelo Quiñones marcelo.quinones@cco.sccgov.org Office of the County Counsel County of Santa Clara 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110-1770 Telephone: (408) 299-5900 Facsimile: (408) 292-7240

Jonathan Weissglass jweissglass@altber.com Stacey M. Leyton sleyton@altber.com Eric P. Brown ebrown@altber.com ALTSHULER BERZON LLP 177 Post St., Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
Defendants request urgent relief on this matter because this Court has denied their mandamus petition, and the district court has ordered the defendants to file a new administrative record that contains privileged material by November 22. The government asks the Court to stay its order pending the Supreme Court’s resolution of its forthcoming application and ensuing petition.
Counsel for plaintiffs were notified of this motion on November 17, 2017, and plaintiffs—Real Parties in Interest—take no position at this time, but will review the motion when it is filed. Service will be accomplished via the Appellate CM/ECF system.

No. 17-72917
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
In re UNITED STATES OF AMERICA, et al., Petitioners.
UNITED STATES OF AMERICA; DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; and ELAINE DUKE, Acting Secretary of Homeland Security, Petitioners-Defendants,
v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent,
REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF
MARYLAND; STATE OF MINNESOTA; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; NORMA RAMIREZ; JIRAYUT LATTHIVONGSKORN; COUNTY OF SANTA CLARA; and
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521, Real Parties in Interest-Plaintiffs.
EMERGENCY MOTION FOR STAY
CHAD A. READLER Principal Deputy Assistant Attorney General
BRIAN STRETCH United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

This Court’s November 16, 2017, order denied the government’s mandamus petition and vacated the stay of discovery and record expansion that had been entered. Following this Court’s order, the district court ordered the government to file an augmented administrative record by November 22, at noon. The government will file an application seeking a further stay of all discovery and record expansion pending a petition for mandamus or a writ of certiorari from the Supreme Court no later than November 20, 2017.
In accordance with Supreme Court Rule 23.3, the government respectfully requests that this Court stay its order pending the Supreme Court’s resolution of its forthcoming application and ensuing petition. In the alternative, we request that this Court enter a stay pending the Supreme Court’s disposition of the application, or at a minimum an administrative stay until the end of the day on November 27th in order to allow the Supreme Court to orderly determine whether it wishes to grant an administrative stay while it considers our application.
We will provide this Court with a copy of our Supreme Court filing and advise it promptly of any developments.
Plaintiffs—Real Parties in Interest—take no position at this time, but will review the motion when it is filed.
2

NOVEMBER 2017

Respectfully submitted,
CHAD A. READLER Principal Deputy Assistant Attorney General
BRIAN STRETCH United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

3

CERTIFICATE OF COMPLIANCE I hereby certify that this motion complies with the word limit of Federal Rule of Appellate Procedure 21(d)(1) because the motion contains 257 words, excluding the parts of the motion exempted by Federal Rule of Appellate Procedure 32(f). I further certify that this motion complies with the typeface and type-style requirements of Federal Rules of Appellate Procedure 27(d)(1)(E), 32(a)(5), and 32(a)(6) because it has been prepared using Microsoft Word 2013 in a proportionally spaced typeface, 14-point Garamond font.
s/ Mark B. Stern MARK B. STERN

CERTIFICATE OF SERVICE I hereby certify that on November 17, 2017, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. Service will be accomplished through that system. The district court has been provided with a copy of this reply.
s/ Mark B. Stern MARK B. STERN

 
 Case: 17-72917, 11/18/2017, ID: 10659828, DktEntry: 37, Page 1 of 2

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
NOV 18 2017
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

In re: UNITED STATES OF AMERICA; DONALD J. TRUMP; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE. ______________________________
UNITED STATES OF AMERICA; DONALD J. TRUMP; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity as Acting Secretary of the Department of Homeland Security,

No. 17-72917
D.C. Nos. 3:17-cv-05211-WHA 3:17-cv-05235-WHA 3:17-cv-05329-WHA 3:17-cv-05380-WHA 3:17-cv-05813-WHA
Northern District of California, San Francisco
ORDER

Petitioners, v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO,

Respondent,

REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, In her official capacity as President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; VIRIDIANA CHABOLLA MENDOZA; NORMA RAMIREZ; COUNTY OF SANTA CLARA;

SMR/MOATT

Case: 17-72917, 11/18/2017, ID: 10659828, DktEntry: 37, Page 2 of 2
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521; JIRAYUT LATTHIVONGSKORN; SAUL JIMENEZ SUAREZ,
Real Parties in Interest.
Before: WARDLAW, GOULD, and WATFORD, Circuit Judges. The court has received the government’s November 17, 2017 emergency
stay motion. The response to the motion is due Monday, November 20, 2017, at 12:00 p.m. PST, and the optional reply is due Monday, November 20, 2017, at 5:00 p.m. PST.
In addition to all other issues the parties wish to raise in the response and reply, the parties shall address whether this court has jurisdiction to grant a stay of proceedings, or whether the motion for a stay should instead be filed in the district court. See Ellis v. U.S. Dist. Court, 360 F.3d 1022 (9th Cir. 2004) (en banc).

SMR/MOATT

2

 
 No. 17-72917

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
____________________
IN RE UNITED STATES OF AMERICA, ET AL., Petitioners.
____________________
UNITED STATES OF AMERICA; DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; and ELAINE C. DUKE, Acting Secretary of Homeland Security, Petitioners-Defendants. v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent,

REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MARYLAND; STATE OF
MINNESOTA; CITY OF SAN JOSÉ; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; NORMA RAMIREZ; and JIRAYUT LATTHIVONGSKORN;
COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521, Real Parties in Interest-Plaintiffs,
____________________
OPPOSITION TO EMERGENCY MOTION FOR STAY
____________________

XAVIER BECERRA Attorney General of California Edward C. DuMont Solicitor General Michael J. Mongan Deputy Solicitor General California Department of Justice 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102-3660 (415) 703-2548 michael.mongan@doj.ca.gov Attorneys for Plaintiff State of California

COVINGTON & BURLING LLP Jeffrey M. Davidson One Front Street, 35th Floor San Francisco, CA 94111-5356 Attorneys for Plaintiffs The Regents of the University of California, et al.
COTCHETT, PITRE & MCCARTHY, LLP Joseph W. Cotchett 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Attorneys for Plaintiff City of San José

GIBSON, DUNN & CRUTCHER LLP Theodore J. Boutrous, Jr. Ethan D. Dettmer 333 South Grand Avenue Los Angeles, CA 90071-3197 Attorneys for Plaintiffs Dulce Garcia, et al.

ALTSHULER BERZON LLP Jonathan Weissglass 177 Post Street, Suite 300 San Francisco, CA 94108 Attorneys for Plaintiff County of Santa Clara & Service Employees Int’l Union Local 521

November 20, 2017

(Additional counsel listed on signature page)

On November 16, 2017, this Court denied defendants’ petition for a writ of mandamus, and correspondingly lifted a stay of certain proceedings in the district court that this Court had entered while it considered defendants’ petition. On the same day, the district court entered an order requiring defendants to promptly file and serve a completed administrative record consistent with the requirements laid out in the district court’s October 17 order that formed the basis for the original mandamus petition. See D.Ct. Dkt. No. 188.1 On November 17, defendants filed an emergency motion asking “this Court to stay its order pending the Supreme Court’s resolution of” a stay application and petition that defendants have indicated they expect to file in that Court. Dkt. No. 36 at 2. In its November 18 order setting a deadline for response to defendants’ motion, this Court directed the parties to “address whether this court has jurisdiction to grant a stay of proceedings, or whether the motion for a stay should instead be filed in the district court. See Ellis v. U.S. Dist. Court, 360 F.3d 1022 (9th Cir. 2004) (en banc).” Dkt. No. 37.
As this Court’s November 18 order suggests, defendants’ motion is misdirected. Although defendants style their motion as one seeking a stay of this Court’s order denying the mandamus petition, that order does not compel anyone to do anything—it merely denies extraordinary mandamus relief and immediately restores the status quo ante in the district court. There is no mandate from this
1 “D.Ct. Dkt.” refers to the docket in case No. 17-cv-5211-WHA.
1

Court to stay, nor any proceeding pending in this Court as to which a stay might operate in aid of this Court’s jurisdiction. See Ellis, 360 F.3d at 1022-1023; 28 U.S.C. § 1651.
It appears that what defendants are actually seeking is a stay of the district court’s November 16 order, directing them to proceed promptly to file and serve a completed administrative record. See D.Ct. Dkt. No. 188. But that type of stay would ordinarily be sought first from the district court itself. See Fed. R. App. P. 8(a)(1)(A) (“A party must ordinarily move first in the district court for . . . a stay of the judgment or order of a district court pending appeal”); cf. Sup. Ct. R. 23.3 (“Except in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.”) Indeed, defendants belatedly filed a motion for a stay in the district court yesterday. See D.Ct. Dkt. No. 191.
As it happens, the plaintiffs here agree that it would be sensible at this particular juncture for the district court to temporarily stay its orders requiring completion and filing of the administrative record by November 22, although not in exactly the manner sought by defendants. Plaintiffs’ motion for a preliminary injunction and defendants’ motion to dismiss are now pending in the district court, and will be fully briefed and argued by December 20. A temporary stay until after the district court rules on those motions would allow the parties to focus on the
2

most immediate issue of whether defendants’ decision to rescind DACA should be enjoined from taking effect while this litigation proceeds. The district court’s ruling on those motions could also either moot or clarify some of the arguments proffered by defendants in support of the extraordinary interlocutory relief that defendants sought from this Court and have now indicated they otherwise intend to pursue immediately in the Supreme Court. A temporary stay would perhaps also obviate any perceived need for defendants to further multiply proceedings in this case.
For all these reasons, on November 19 plaintiffs themselves filed a motion in the district court seeking a stay tailored to the circumstances of this case. See D.Ct. Dkt. No. 190. This morning, the district court issued a tentative order that would delay defendants’ obligation to file the augmented administrative record and stay discovery until December 22, two days after the scheduled hearing on plaintiffs’ motion for preliminary injunction and defendants’ motion to dismiss. See D.Ct. Dkt. 193. The district court invited the parties to respond to that tentative order by noon today. See ibid. The parties’ filings in the district court, and the district court’s tentative order, make clear that issues relating to the details and timing of proceedings in this complex and rapidly evolving litigation are best managed by the district court.
3

Finally, even if this Court thought it appropriate to entertain defendants’ current stay motion, defendants have failed to carry their burden of establishing any entitlement to a stay from this Court. Their stay motion is perfunctory: it contains just 257 words and no argument or explanation concerning why the present circumstances satisfy the factors governing issuance of a stay. See, e.g., Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). Defendants do not discuss the balance of hardships or the public interest, and they fail to explain why their arguments for extraordinary relief are likely to succeed before the Supreme Court after having failed before this Court.
4

CONCLUSION This Court should deny defendants’ emergency motion for a stay.

Respectfully submitted,

Dated: November 20, 2017
COVINGTON & BURLING LLP
Jeffrey M. Davidson One Front Street, 35th Floor San Francisco, CA 94111-5356 Telephone: (415) 591-6000 Facsimile: (415) 591-6091 Email: jdavidson@cov.com
Lanny A. Breuer Mark H. Lynch Alexander A. Berengaut Megan A. Crowley One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 Telephone: (202) 662-6000 Facsimile: (202) 662-6291 Email: lbreuer@cov.com, mlynch@cov.com, aberengaut@cov.com, mcrowley@cov.com Attorneys for Real Parties in InterestPlaintiffs The Regents of the University of California, et al.

XAVIER BECERRA Attorney General of California Edward C. DuMont Solicitor General Janill L. Richards Principal Deputy Solicitor General s/ Michael J. Mongan
Michael J. Mongan Deputy Solicitor General Michael L. Newman Supervising Deputy Attorney General Max Carter-Oberstone Geoffrey H. Wright Associate Deputy Solicitors General James F. Zahradka II Christine Chuang Rebekah A. Fretz Ronald H. Lee Kathleen Vermazen Radez Shubhara Shivpuri Deputy Attorneys General California Department of Justice 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102-3660 (415) 703-2548 Email: michael.mongan@doj.ca.gov Attorneys for Plaintiff State of California

5

LORI SWANSON Attorney General Julianna F. Passe Assistant Attorney General State of Minnesota 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 Telephone: (651) 757-1136 Email: julianna.passe@ag.state.mn.us Attorneys for Plaintiff State of Minnesota
JANET T. MILLS Attorney General of Maine Susan P. Herman Deputy Attorney General 6 State House Station Augusta, Maine 04333 Telephone: (207) 626-8814 Email: susan.herman@maine.gov Attorneys for Plaintiff State of Maine

Mónica Ramírez Almadani 1999 Avenue of the Stars Los Angeles, CA 90067-4643 Telephone: (424) 332-4800 Facsimile: (424) 332-4749 Email: mralmadani@cov.com
Charles F. Robinson Margaret Wu University of California Office of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Telephone: (510) 987-9800 Facsimile: (510) 987-9757 Email: charles.robinson@ucop.edu Attorneys for Plaintiffs The Regents of the University of California and Janet Napolitano, in her official capacity as President of the University of California

BRIAN E. FROSH Attorney General of Maryland Steven M. Sullivan Solicitor General 200 Saint Paul Place, 20th Floor Baltimore, Maryland 21202 Telephone: (410) 576-6325 Email: ssullivan@oag.state.md.us Attorneys for Plaintiff State of Maryland

6

COTCHETT, PITRE & MCCARTHY, LLP Justin Berger jberger@cpmlegal.com Brian Danitz bdanitz@cpmlegal.com Tamarah P. Prevost tprevost@cpmlegal.com San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
Richard Doyle Nora Frimann Office of the City Attorney 200 East Santa Clara Street, 16th Floor San José, California 95113 Telephone: (408) 535-1900 Facsimile: (408) 998-3131 Email: cao.main@sanJoséca.gov
Attorneys for Plaintiff City of San José

GIBSON, DUNN & CRUTCHER LLP Theodore J. Boutrous, Jr. tboutrous@gibsondunn.com Kirsten Galler kgaller@gibsondunn.com Jesse S. Gabriel jgabriel@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520
Ethan D. Dettmer edettmer@gibsondunn.com 555 Mission Street San Francisco, CA 94105 Telephone: (415) 393-8200 Facsimile: (415) 393-8306 Attorneys for Plaintiffs Dulce Garcia, et al.
PUBLIC COUNSEL Mark D. Rosenbaum mrosenbaum@publiccounsel.org Judy London jlondon@publiccounsel.org 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089

BARRERA LEGAL GROUP, PLLC Luis Cortes Romero lcortes@barreralegal.com 19309 68th Avenue South, Suite R102 Kent, WA 98032 Telephone: (253) 872-4730 Facsimile: (253) 237-1591

7

James R. Williams, County Counsel Greta S. Hansen Laura S. Trice laura.trice@cco.sccgov.org Marcelo Quiñones marcelo.quinones@cco.sccgov.org Office of the County Counsel County of Santa Clara 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110-1770 Telephone: (408) 299-5900 Facsimile: (408) 292-7240 Attorneys for County of Santa Clara
ALTSHULER BERZON LLP Jonathan Weissglass jweissglass@altber.com Stacey M. Leyton sleyton@altber.com Eric P. Brown ebrown@altber.com 177 Post St., Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 Attorneys for County of Santa Clara and SEIU Local 521

Laurence H. Tribe larry@tribelaw.com Harvard Law School* 1575 Massachusetts Avenue Cambridge, MA 02138 Telephone: (617) 495-1767
Erwin Chemerinsky echemerinsky@law.berkeley.edu University of California, Berkeley School of Law* 215 Boalt Hall Berkeley, CA 94720-7200 Telephone: (510) 642-6483
Leah M. Litman llitman@law.uci.edu University of California, Irvine School of Law* 401 East Peltason Drive Irvine, CA 92697 Telephone: (949) 824-7722
Attorneys for Plaintiffs Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and Jirayut Latthivongskorn
*Affiliation for identification purposes only

8

CERTIFICATE OF COMPLIANCE I certify that this opposition complies with the requirements of Federal Rules of Appellate Procedure 27(d), 32(a)(5), and 32(a)(6), because it has been prepared in a proportionately spaced serif font, has a typeface of 14 points, and contains 878 words.

Dated: November 20, 2017

s/ Michael J. Mongan

CERTIFICATE OF SERVICE I certify that on November 20, 2017, I electronically filed the foregoing document with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: November 20, 2017

s/ Michael J. Mongan

 
 No. 17-72917
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
In re UNITED STATES OF AMERICA, et al., Petitioners.
UNITED STATES OF AMERICA; DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; and ELAINE DUKE, Acting Secretary of Homeland Security, Petitioners-Defendants,
v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent,
REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF
MARYLAND; STATE OF MINNESOTA; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; NORMA RAMIREZ; JIRAYUT LATTHIVONGSKORN; COUNTY OF SANTA CLARA; and
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521, Real Parties in Interest-Plaintiffs.
REPLY IN SUPPORT OF EMERGENCY MOTION FOR STAY
CHAD A. READLER Principal Deputy Assistant Attorney General
BRIAN STRETCH United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

As set out below, a ruling of the district court on November 20, 2017 and ongoing discussions between the parties have obviated the need for immediate action by this Court on the pending motion for a stay. We will therefore not be filing a request for review in the Supreme Court today, and we ask that the Court defer ruling on the motion. We will advise the Court immediately of relevant developments.
1. Citing its decision in Ellis v. U.S. Dist. Court, 360 F.3d 1022 (9th Cir. 2004) (en banc), this Court has inquired as to its jurisdiction to issue a stay pending Supreme Court review. Ellis does not foreclose the exercise of this Court’s jurisdiction to continue the stay of proceedings that were the subject of the government’s mandamus petition. The Court in Ellis granted a writ of mandamus. Responding to a request to recall the mandate, the Court explained that there was no mandate to recall because, in a mandamus proceeding, there is no mandate separate from the issuance of the writ. That case has no bearing on the jurisdictional question presented here: whether, having exercised its mandamus jurisdiction and having denied the requested relief, the Court retains authority under the All Writs Act to continue a previously granted stay of discovery and record expansion. See Daimler-Benz Aktiengesellschaft v. U.S. Dist. Court for Western Dist. of Oklahoma, 805 F.2d 340 (10th Cir. 1985) (recognizing that mandamus petition would be unsuccessful under court of appeals’ view of the law, but staying district court order pending Supreme Court review).
2. The government has consistently urged that discovery and expansion of the administrative record are neither necessary nor proper. Although plaintiffs have

strenuously urged to the contrary, they moved on November 19 for a stay of discovery and “record completion” in the district court pending a ruling on plaintiffs’ request for a preliminary injunction and the government’s motion to dismiss. Also on November 19, the government sought a stay in the district court pending possible Supreme Court review.
In response, the district court on November 20 issued an order extending the time for the government to file its administrative record until December 22, staying discovery until that date, and denying the government’s emergency motion for stay.
As the government explained to the district court, this relief is insufficient: the government will be required during the pendency of the stay to create an expanded “administrative record” that it continues to believe is legally improper for the reasons expressed in its briefing to this Court and to produce that record a mere two days after the hearing on the government’s motion to dismiss and the plaintiffs’ motion for provisional relief.
The parties are currently engaged in negotiations to address the government’s concerns. In light of these developments, the government will not be seeking Supreme Court relief today, and, depending on the outcome of these discussions and subsequent rulings of the district court, it may be unnecessary for this Court to act on our pending motion. Accordingly, we request that this Court delay resolution of this motion pending further developments in the district court.
2

NOVEMBER 2017

Respectfully submitted,
CHAD A. READLER Principal Deputy Assistant Attorney General
BRIAN STRETCH United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

3

CERTIFICATE OF COMPLIANCE I hereby certify that this motion complies with the word limit of Federal Rule of Appellate Procedure 21(d)(1) because the motion contains 522 words, excluding the parts of the motion exempted by Federal Rule of Appellate Procedure 32(f). I further certify that this motion complies with the typeface and type-style requirements of Federal Rules of Appellate Procedure 27(d)(1)(E), 32(a)(5), and 32(a)(6) because it has been prepared using Microsoft Word 2013 in a proportionally spaced typeface, 14-point Garamond font.
s/ Mark B. Stern MARK B. STERN

CERTIFICATE OF SERVICE I hereby certify that on November 20, 2017, by 5pm PST, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. Service will be accomplished through that system. The district court has been provided with a copy of this reply.
s/ Mark B. Stern MARK B. STERN

 
 CCasaese3::17-c7v2-901573,2192-W/20H/A201D7o, cIDu:m1e0n6t9683399F,ileDdkt1E2n/t2r1y:/1474, Page 1 of 4

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 challenge a determination adopted by the Acting Secretary of the Department 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 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 potentially 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 matter now 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 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

CCasaese3::17-c7v2-901573,2192-W/20H/A201D7o, cIDu:m1e0n6t9683399F,ileDdkt1E2n/t2r1y:/1474, Page 2 of 4

2

IN RE UNITED STATES

Per Curiam
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 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 Order). The details of that order are recounted further below. 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 administrative 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 Government 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 Government to turn over all “emails, letters, memoranda, notes, media items, opinions and other materials” that fall

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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 connection with the potential or actual decision to rescind DACA . . . , (2) all DACA-related materials considered by persons (anywhere in the government) who thereafter provided 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 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 directly or indirectly considered by former Secretary of DHS John Kelly leading to his February 2017 memorandum 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 Government’s threshold 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 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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4

IN RE UNITED STATES

Per Curiam
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 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 Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

 
 Case 3:17-cv-05329-WHA Document 66 Filed 01/09/18 Page 1 of 49

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

14

v.

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and KIRSTJEN

16

NIELSEN, in her official capacity as Secretary of the Department of Homeland Security,

17

Defendants.

18

/

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA No. C 17-05813 WHA
ORDER DENYING FRCP 12(b)(1) DISMISSAL AND GRANTING PROVISIONAL RELIEF

19

INTRODUCTION

20

In these challenges to the government’s rescission of the Deferred Action for Childhood

21 Arrivals program, plaintiffs move for provisional relief while the government moves to dismiss

22 for lack of jurisdiction. For the reasons below, dismissal is DENIED and some provisional relief

23 is GRANTED.

24

STATEMENT

25

In 2012, the United States Department of Homeland Security adopted a program to

26 postpone deportation of undocumented immigrants brought to America as children and, pending

27 action in their cases, to assign them work permits allowing them to obtain social security

28 numbers, pay taxes, and become part of the mainstream economy. This program received the

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1 title “Deferred Action for Childhood Arrivals” — DACA for short. In 2017, however, after the

2 national election and change in administrations, the agency eventually reversed itself and began

3 a phase-out of DACA. All agree that a new administration is entitled to replace old policies

4 with new policies so long as they comply with the law. One question presented in these related

5 actions is whether the new administration terminated DACA based on a mistake of law rather

6 than in compliance with the law.

7

1.

HISTORY OF DEFERRED ACTION.

8

At the core of these cases is an administrative practice known as “deferred action.”

9 A primary question presented concerns the extent to which the Department of Homeland

10 Security could lawfully use deferred action to implement DACA, and so it is important to review

11 the history of deferred action as well as of other features of the DACA program.

12

Congress has the constitutional power to “establish an uniform Rule of Naturalization.”

13 Art. I, § 8, cl. 4. Pursuant thereto, Congress has established a comprehensive scheme governing

14 immigration and naturalization through the Immigration and Nationality Act. 8 U.S.C. §§ 1101,

15 et seq. The Secretary of Homeland Security is “charged with the administration and enforcement

16 of [the INA] and all other laws relating to the immigration and naturalization of aliens.”

17 8 U.S.C. § 1103(a)(1). The Secretary is further charged with “establishing national immigration

18 enforcement policies and priorities.” 6 U.S.C. § 202(5).

19

One of the key enforcement tools under the INA is removal, i.e., deportation. In turn,

20 “[a] principal feature of the removal system is the broad discretion exercised by immigration

21 officials.” Arizona v. United States, 567 U.S. 387, 396 (2012). As an initial matter, in any given

22 case, immigration officials “must decide whether it makes sense to pursue removal at all.” Ibid.

23 At each stage of the removal process, they have “discretion to abandon the endeavor.” Reno v.

24 Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999) (“AADC”).

25

Beginning as early as 1975, one way to exercise this discretion became “deferred action.”

26 By deferred action, immigration officials could postpone, seemingly indefinitely, the removal of

27 individuals unlawfully present in the United States “for humanitarian reasons or simply for [the

28

2

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1 Executive’s] own convenience.” Id. at 483–84. Immigration officials could also grant parole,

2 temporary protected status, deferred enforced departure, or extended voluntary departure.

3

Some of these discretionary powers have flowed from statute. Parole, for example,

4 has allowed otherwise inadmissible aliens to temporarily enter the United States “for urgent

5 humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Temporary

6 protected status, also created by statute, has been available to nationals of designated foreign

7 states affected by armed conflicts, environmental disasters, and other extraordinary conditions.

8 8 U.S.C. § 1254a.

9

Some of these discretionary powers, however, have flowed from nonstatutory powers.

10 Deferred enforced departure had no statutory basis but, instead, grew out of “the President’s

11 constitutional powers to conduct foreign relations.” USCIS, Adjudicator’s Field Manual

12 § 38.2(a) (2014). Nor has extended voluntary departure been anchored in any statute. Rather,

13 it has been recognized as part of the discretion of the Attorney General. Hotel & Restaurant

14 Employees Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc).

15

Deferred action, originally known as “nonpriority” status, also began “without express

16 statutory authorization” but has since been recognized by the Supreme Court as a “regular

17 practice.” AADC, 525 U.S. at 484. Congress has also acknowledged deferred action by explicit

18 reference to it in the INA (8 U.S.C. § 1227(d)(2)):

19

The denial of a request for an administrative stay of removal under

this subsection shall not preclude the alien from applying for a stay

20

of removal, deferred action, or a continuance or abeyance of

removal proceedings under any other provision of the immigration

21

laws of the United States.

22

Another federal statute, the REAL ID Act, also acknowledged deferred action. REAL ID

23 Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231. This law provided that states could issue

24 a temporary driver’s license or identification card to persons who can demonstrate an

25 “authorized stay in the United States.” Id. §§ 202(c)(2)(C)(i)–(ii). Persons with “approved

26 deferred action status” were expressly identified as being present in the United States during a

27 “period of authorized stay,” for the purpose of issuing state identification cards. Id. §§

28 202(c)(2)(B)(viii), (C)(ii).

3

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1

Congress has also given the Executive Branch broad discretion to determine when

2 noncitizens may work in the United States. Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053,

3 1062 (9th Cir. 2014) (“Brewer I”); see 8 U.S.C. § 1324a(h)(3) (defining an “unauthorized alien”

4 not entitled to work in the United States as an alien who is neither a legal permanent resident

5 nor “authorized to be . . . employed by [the INA] or by the [Secretary of Homeland Security]”).

6 Pursuant to this statutory authority, regulations promulgated in the 1980s allowed recipients of

7 deferred action to apply for work authorization if they could demonstrate an “economic necessity

8 for employment.” 8 C.F.R. § 274a.12(c)(14).

9

The George W. Bush Administration began to use deferred action to mitigate a harsh

10 statutory provision involving “unlawful presence.” The Illegal Immigration Reform and

11 Immigrant Responsibility Act of 1996 created three- and ten-year bars on the admission of

12 aliens who departed or were removed from the United States after periods of “unlawful

13 presence” of between 180 days and one year, or more than one year, respectively. 8 U.S.C.

14 § 1182(a)(9)(B)(i). It also imposed a permanent bar on the admission of any alien who,

15 without being admitted, entered or attempted to reenter the United States after having been

16 unlawfully present for an aggregate period of more than one year. 8 U.S.C. § 1182(a)(9)(C)(i).

17 Beginning in 2007, however, DHS regulations and policy guidance provided that deferred action

18 recipients did not accrue “unlawful presence” for purposes of the INA’s bars on re-entry.

19 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); Memorandum for Field Leadership,

20 from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS,

21 Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections

22 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42 (May 6, 2009). DHS excluded recipients

23 of deferred action from being “unlawfully present” because their deferred action is a period of

24 stay authorized by the government. Brewer I, 757 F.3d at 1059 (citing 8 U.S.C.

25 § 1182(a)(9)(B)(ii)). This nonaccrual practice arose well before DACA.1

26

27
1 Undocumented aliens do not begin to accrue “unlawful presence” for purposes of
28 Section 1182(a)(9)(B)(i) until they reach the age of eighteen. 8 U.S.C. § 1182(a)(9)(B)(iii).

4

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1

DACA grew out of a long agency history of discretionary relief programs. In 1956, the

2 Eisenhower Administration paroled roughly one thousand foreign-born orphans who had been

3 adopted by American citizens but were precluded from entering the United States because of

4 statutory quotas. That same administration later granted parole to tens of thousands of

5 Hungarian refugees after the unsuccessful Hungarian revolution. Both programs flowed from

6 presidential statements, and the programs later ended (in 1959 and 1958, respectively) when

7 Congress passed laws enabling the paroled individuals to become lawful permanent residents

8 (App. 1602–03, 1948–57; AR 33).2

9

In 1987, President Ronald Reagan instituted the Family Fairness Program, a non-

10 statutory program that provided extended voluntary departure to children whose parents were in

11 the process of legalizing their immigration status under the Immigration Reform and Control Act

12 of 1986. President George H.W. Bush extended the non-statutory program in 1990 to cover

13 spouses of such legalized aliens, and the program ultimately provided immigration relief to

14 approximately 1.5 million people. The need for the program ended with the passage of the

15 Immigration Act of 1990 (App. 1607, 1612–13, 1703).

16

On at least four occasions prior to the creation of DACA, immigration officials have

17 extended deferred action programs to certain classes of aliens, none of which programs was

18 expressly authorized by statute:

19

•

In 1997, INS established a deferred action program for individuals

20

self-petitioning for relief under the Violence Against Women Act of

21

1994. This program is still in place today. As originally enacted, the

22

Act did not mention deferred action, but instead provided a pathway

23

to lawful permanent residency. Deferred action allowed applicants

24

to remain in the country pending a decision on their applications.

25

26

2 “App.” refers to the appendix submitted in support of plaintiffs’ motion for provisional relief (Dkt.

Nos. 113, 117–19, 121, 124). In connection with their motion for provisional relief, plaintiffs seek judicial
27 notice of thirty-nine exhibits submitted with the appendix (Dkt. No. 111-2). The request is unopposed.

These exhibits consist of congressional testimony and government publications, memoranda, and press releases.
28 Plaintiffs’ request for judicial notice is GRANTED.

5

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1

Congress later expanded the deferred action program in the 2000

2

VAWA reauthorization legislation (App. at 1640–46).

3

•

In 2002 and 2003, INS issued memoranda instructing officers to make

4

deferred action assessments for T visa applicants (victims of human

5

trafficking) and U visa applicants (victims of crimes such as domestic

6

violence) (App. 1650–58). These programs have since been codified in

7

regulations promulgated by INS and DHS. 8 C.F.R. §§ 214.11(k)(1),

8

(k)(4), (m)(2); 8 C.F.R. § 214.14(d)(2).

9

•

After Hurricane Katrina in 2005, USCIS announced a deferred action

10

program for certain foreign students (F-1 visa holders) who, because of

11

the hurricane, could not satisfy the requirements of their student visas.

12

In announcing the program, USCIS stated that “[t]he interim relief

13

[would] remain in effect until February 1, 2006” (App. 1661–62).

14

•

In 2009, to fill a gap under the law, USCIS established a deferred

15

action program for widowed spouses who had been married to United

16

States citizens for less than two years. Congress later eliminated the

17

statutory requirement that an alien be married to a United States citizen

18

for at least two years at the time of the citizen’s death to retain

19

eligibility for lawful immigration status, and USCIS accordingly

20

withdrew the deferred action program as “obsolete” (App. 1664–82).

21

In sum, by the time DACA arrived in 2012, deferred action programs had become a

22 well-accepted feature of the executive’s enforcement of our immigration laws, recognized as

23 such by Congress and the Supreme Court.

24

2. DACA.

25

On June 15, 2012, Secretary of Homeland Security Janet Napolitano issued a

26 memorandum establishing Deferred Action for Childhood Arrivals. Under DACA, immigrants

27 brought to the United States as children could apply for deferred action for a two-year period,

28 subject to renewal. To qualify for DACA, an individual must: (1) have come to the United

6

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1 States before the age of sixteen and been under the age of thirty-one on June 15, 2012;

2 (2) have been present in the United States on June 15, 2012; (3) have been continuously residing

3 in the United States for at least the prior five years; (4) have been enrolled in school, graduated

4 from high school, obtained a GED, or been honorably discharged from the United States military

5 or Coast Guard; and (5) not pose a threat to national security or public safety (AR 1).

6

The 2012 DACA memo described the program as an exercise of “prosecutorial

7 discretion.” Secretary Napolitano found leniency “especially justified” for the DACA-eligible,

8 whom she described as “productive young people” who “have already contributed to our country

9 in significant ways.” The memo further stated that these individuals “lacked the intent to violate

10 the law” and were low priority cases for deportation (AR 1–2).

11

DACA applicants had to pass a DHS background check and applications had to be

12 “decided on a case by case basis.” To apply for DACA, eligible individuals completed USCIS

13 Form I-821D. The application called for substantial personal information, such as biographical

14 information, date of entry into the United States, immigration status or lack thereof, educational

15 history, and all prior residential addresses since entering the United States.

16

Form I-821D also required substantial documentary support, including proof of identity

17 and proof of continuous residence in the United States through rent receipts, utility bills,

18 employment documents, or similar records. Applicants also appeared at a USCIS field office

19 to provide fingerprints, photographs, and signatures. The form’s instructions stated (App. 1820):

20

Information provided in this request is protected from disclosure

to ICE and U.S. Customs and Border Protection (CBP) for the

21

purpose of immigration enforcement proceedings unless the

requestor meets the criteria for the issuance of a Notice To Appear

22

or a referral to ICE under the criteria set forth in USCIS’ Notice to

Appear guidance (www.uscis.gov/NTA). The information may be

23

shared with national security and law enforcement agencies,

including ICE and CBP, for purposes other than removal,

24

including for assistance in the consideration of deferred action for

childhood arrivals request itself, to identify or prevent fraudulent

25

claims, for national security purposes, or for the investigation or

prosecution of a criminal offense. The above information sharing

26

clause covers family members and guardians, in addition to the

requestor.

27

28

7

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1

The form’s instructions also stated (App. 1808):

2

Individuals who receive deferred action will not be placed into

removal proceedings or removed from the United States for a

3

specified period of time, unless the Department of Homeland

Security (DHS) chooses to terminate the deferral.

4

DACA applicants also submitted a Form I-765, Application for Employment

5

Authorization, a Form I-765WS, Worksheet, and the accompanying fees. To determine an

6

applicant’s eligibility for work authorization, USCIS reviewed the applicant’s current annual

7

income, current annual expenses, and the total current value of his or her assets (App. 1762,

8

1801–21, 2067–87).

9

If approved, the recipient received a Form I-797, Notice of Action, stating (App. 585):

10

USCIS, in the exercise of its prosecutorial discretion, has decided

11

to defer action in your case. Deferred action is an exercise of

prosecutorial discretion by USCIS not to pursue the removal of an

12

individual from the United States for a specific period. Deferred

action does not confer or alter any immigration status.

13

Significantly, DHS could terminate a recipient’s deferred action at any time, at the

14

agency’s discretion, and DACA paved no pathway to lawful permanent residency, much less

15

citizenship (App. 1774, 1808). Secretary Napolitano concluded her DACA memorandum

16

(AR 1–3):

17

This memorandum confers no substantive right, immigration status

18

or pathway to citizenship. Only the Congress, acting through its

legislative authority, can confer these rights. It remains for the

19

executive branch, however, to set forth policy for the exercise of

discretion within the framework of the existing law. I have done

20

so here.

21

But DACA did provide important benefits. First, under pre-existing regulations, DACA

22 recipients became eligible to receive employment authorization for the period of deferred action,

23 thereby allowing them to obtain social security numbers and to become legitimate taxpayers and

24 contributing members of our open economy. 8 C.F.R. § 274a.12(c)(14). Second, deferred action

25 provided a measure of safety for a period of two years from detention and removal, albeit always

26 subject to termination at any time in any individual case. Third, DACA recipients could apply

27 for “advance parole” to obtain permission to travel overseas and be paroled back into the United

28 States. 8 C.F.R. § 212.5(f). Fourth, also pursuant to pre-existing regulations, DACA recipients

8

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1 avoided accrual of time for “unlawful presence” under the INA’s bar on re-entry. 8 U.S.C.

2 § 1182(a)(9)(B)–(C) (establishing three-year, ten-year, and permanent bars on the admission

3 of aliens after specified periods of “unlawful presence”).

4

USCIS “strongly encourage[d]” DACA recipients to submit renewal requests between

5 120 and 150 days before the expiration date-stamped on the recipient’s Form I-797. According

6 to the “Frequently Asked Questions” posted on the agency’s website, recipients were eligible for

7 renewal under DACA so long as they: (1) did not depart the United States on or after August 15,

8 2012, without advance parole; (2) continuously resided in the United States since submitting

9 their most recent DACA request; and (3) had not received criminal convictions (with minor

10 exceptions). Renewal requests did not require additional documentary support (App. 1756–57).

11

The agency adopted DACA without any notice or opportunity for public comment.

12

According to data published by USCIS, 793,026 applicants received deferred action

13 under DACA since its inception. As of September 2017, there remained approximately 689,800

14 active DACA recipients. Their average age was 23.8. Based on a survey completed by

15 Associate Professor Tom K. Wong in August 2017, 91 percent of DACA recipients had jobs,

16 and 45 percent of DACA recipients were enrolled in school (App. 1494–1522, 1533–52).

17

3. THE DAPA LITIGATION.

18

In 2014, DHS announced a different deferred action program for parents of United States

19 citizens or lawful permanent residents, titled “Deferred Action for Parents of Americans and

20 Lawful Permanent Residents” — shortened to the confusingly-similar acronym DAPA.

21

For our purposes, DAPA is important because the United States Court of Appeals for

22 the Fifth Circuit promptly held that DAPA exceeded the statutory authority of DHS, a holding

23 that eventually moved Attorney General Jeff Sessions to rule that DACA too had exceeded the

24 agency’s authority. Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

25

The 2014 DAPA memo directed USCIS “to establish a process, similar to DACA, for

26 exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,”

27 for aliens who had a son or daughter who was a United States citizen or lawful permanent

28 resident and: (1) were not an enforcement priority under DHS policy; (2) had continuously

9

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1 resided in the United States since before January 1, 2010; (3) had been physically present in the

2 United States both when DHS announced DAPA and at the time of application to the program;

3 and (4) presented “no other factors that, in the exercise of discretion, [made] the grant of

4 deferred action inappropriate” (AR 37–41).

5

That same 2014 announcement also expanded DACA in three minor ways: (1) allowing

6 otherwise eligible immigrants to apply for DACA even if they were older than 31 on the day

7 DACA was earlier announced; (2) extending DACA renewals and work authorizations from

8 two- to three-year periods; and (3) adjusting DACA’s date-of-entry requirement from June 15,

9 2007, to January 1, 2010 (AR 37–41).

10

DAPA was also adopted without notice or opportunity for public comment.

11

A coalition of twenty-six states immediately filed suit in the United States District Court

12 for the Southern District of Texas to challenge DAPA. The district court preliminarily enjoined

13 its implementation on the ground that DHS had failed to comply with the APA’s

14 notice-and-comment requirements. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

15 The district court’s order stated that “with three minor exceptions,” the case did not involve

16 DACA (id. at 606):

17

The Complaint in this matter does not include the actions taken by

Secretary Napolitano, which have to date formalized the status of

18

approximately 700,000 teenagers and young adults. Therefore,

those actions are not before the Court and will not be addressed

19

by this opinion. Having said that, DACA will necessarily be

discussed in this opinion as it is relevant to many legal issues in

20

the present case. For example, the States maintain that the DAPA

applications will undergo a process identical to that used for

21

DACA applications and, therefore, DACA’s policies and

procedures will be instructive for the Court as to DAPA’s

22

implementation.

23

In holding that DAPA violated notice-and-comment procedures, the district court held

24 that it constituted “a new rule that substantially change[d] both the status and employability of

25 millions” and inflicted “major costs on both states and federal government.” It therefore should

26 have been issued, the district court held, after notice and opportunity for public comment. Id. at

27 671. Though the order focused on DAPA, it also preliminarily enjoined everything in the 2014

28

10

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1 memorandum, including the three minor ways in which DACA had been modified (but left alone

2 the 2012 DACA program).

3

The Fifth Circuit affirmed in a split decision but added a further ground for affirmance.

4 Texas, 809 F.3d at 178. Over a dissent, the appellate panel added the ground that DAPA was

5 substantively foreclosed by statute because the INA contained “an intricate process for illegal

6 aliens to derive a lawful immigration classification from their children’s immigration status,”

7 and that DAPA, by providing “the benefits of lawful presence” to undocumented immigrants

8 “solely on account of their children’s immigration status,” was inconsistent with this statutory

9 scheme, which provided its own pathway for lawful presence to parents of children lawfully

10 in the United States. Id. at 179–80, 186. The Fifth Circuit’s holding was also based on its

11 observation that “the INA does not grant the Secretary discretion to grant deferred action and

12 lawful presence on a class-wide basis to 4.3 million otherwise removable aliens.” Id. at 186

13 n.202. The decision was later affirmed without opinion by an equally divided Supreme Court.

14 United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).3

15

In February 2017, DHS Secretary John Kelly issued guidance regarding the Trump

16 Administration’s immigration enforcement priorities. Although the guidance rescinded “all

17 existing conflicting directives, memoranda, or field guidance regarding the enforcement of our

18 immigration laws and priorities for removal,” the 2012 DACA memo and 2014 DAPA memo

19 were explicitly left in place. The guidance also said that the 2014 DAPA memo would “be

20 addressed in future guidance” (AR 229–34).

21

In June 2017, Secretary Kelly rescinded the 2014 DAPA memo, which rescission

22 included the 2014 expansions of DACA. He explained:

23

I have considered a number of factors, including the preliminary

injunction in this matter, the ongoing litigation, the fact that DAPA

24

never took effect, and our new immigration enforcement priorities.

After consulting with the Attorney General, and in the exercise of

25

my discretion in establishing national immigration enforcement

policies and priorities, I hereby rescind the November 20, 2014,

26

memorandum.

27

28

3 Such an affirmance has no precedential value. Neil v. Biggers, 409 U.S. 188, 192 (1972).

11

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1 Again, however, Secretary Kelly declared that the 2012 DACA memo would remain in effect

2 (AR 235–37).

3

4. RESCISSION OF DACA.

4

Also in June 2017, ten of the twenty-six plaintiffs from the DAPA litigation wrote to

5 Attorney General Jeff Sessions to demand rescission of the 2012 DACA memo. Their letter

6 stated that if DACA was rescinded by September 5, they would dismiss the still-pending DAPA

7 litigation. Otherwise, the letter threatened to try to amend their complaint to additionally

8 challenge the legality of DACA (AR 238–40).

9

A day before the deadline, the Attorney General advised Acting Secretary of Homeland

10 Security Elaine Duke via a short letter that the Obama Administration had created DACA

11 “without proper statutory authority and with no established end-date, after Congress’ repeated

12 rejection of proposed legislation that would have accomplished a similar result,” and that

13 therefore the program was an “unconstitutional exercise of authority by the Executive Branch.”

14 The Attorney General’s letter also referenced the preliminary injunction against DAPA, then

15 stated that “[b]ecause the DACA policy has the same legal and constitutional defects that the

16 courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar

17 results with respect to DACA” (AR 251).

18

The following day, without prior notice, the Acting Secretary rescinded DACA.

19 The rescission was not based on any policy criticism. Instead, it was based on the legal

20 determination by the Attorney General. The Acting Secretary explained that after “[t]aking into

21 consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and

22 the September 4, 2017, letter from the Attorney General, it is clear that the June 15, 2012,

23 DACA program should be terminated.” She said that “[r]ecognizing the complexities associated

24 with winding down the program,” DHS would “provide a limited window” in which it would

25 adjudicate certain requests, but that new DACA requests and applications for employment

26 authorization would be rejected starting immediately. DHS would adjudicate, on a case-by-case

27 basis, DACA renewal requests received within thirty days from beneficiaries whose DACA

28 status would expire before March 5, 2018. She also instructed DHS to immediately stop

12

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1 approving new applications for advance parole. The rescission left in place all extant grants of

2 deferred action and work authorizations for the remainder of their validity periods (AR 252–56).

3 Consequently, starting in March 2018, the DACA population will, over two years, dwindle down

4 to zero.

5

On the night of the rescission, President Trump called upon Congress specifically to

6 enact DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama

7 Administration was unable to do). If they can’t, I will revisit this issue!” During an interview

8 earlier in 2017, President Trump had stated “we are not after the dreamers, we are after the

9 criminals” and that “the dreamers should rest easy” (App. 1852–53, 1958).

10

In sum, the new administration didn’t terminate DACA on policy grounds. It terminated

11 DACA over a point of law, a pithy conclusion that the agency had exceeded its statutory and

12 constitutional authority. An important question now presented is whether that conclusion was a

13 mistake of law.

14

5.

THE INSTANT LITIGATION.

15

Plaintiffs herein filed five related non-class lawsuits in this district, all now before the

16 undersigned judge. The first commenced on September 8, brought by The Regents of the

17 University of California, on its own behalf and on behalf of its students, and Janet Napolitano,

18 in her official capacity as President of the University. UC Plaintiffs allege they have invested

19 considerable resources in recruiting students and staff who are DACA recipients, and that these

20 individuals make important contributions to the University. As DACA recipients lose their work

21 authorizations, UC Plaintiffs allege that the University will lose significant intellectual capital

22 and productivity. They further allege that students who lose DACA protections will be unable

23 “to plan for the future, apply for and obtain internships and certain financial aid and

24 scholarships, study abroad, or work to pay their tuition and other expenses,” and as a result may

25 withdraw from the University altogether (UC Compl. ¶¶ 4–6, 34–37, 48–49).4

26

27

4 Two additional DACA lawsuits proceed in the Eastern District of New York before Judge Nicholas

Garaufis, State of New York v. Trump, Case No. 17-cv-05228 NGG, and Vidal v. Baran, Case No. 16-cv-04756
28 NGG.

13

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1

On September 11, the States of California, Maine, Maryland, and Minnesota filed suit.

2 Plaintiff States allege that they are home to more than 238,000 DACA recipients, and that the

3 loss of their residents’ DACA status and work authorizations will injure their public colleges

4 and universities, upset the States’ workforces, disrupt the States’ statutory and regulatory

5 interests, cause harm to hundreds of thousands of their residents, damage their economies,

6 and hurt companies based in Plaintiff States (States Compl. ¶¶ 1–10).

7

The City of San Jose, on its own behalf and on behalf of its employees who are DACA

8 recipients, filed its action on September 14. San Jose alleges that it has hired DACA recipients

9 into vital City jobs, that substantial resources were invested in training these employees, and that

10 the City will be harmed when these employees are forced to leave the workforce (when they lose

11 their work authorizations). San Jose further alleges that it will continue to lose tax revenue as

12 DACA recipients lose work authorizations and can no longer contribute to the City’s tax base

13 (San Jose Compl. ¶¶ 10, 28, 49–51).

14

On September 18, Individual DACA recipients Dulce Garcia, Miriam Gonzalez Avila,

15 Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and Jirayut

16 Latthivongskorn brought suit to challenge the termination of DACA. Individual Plaintiffs work

17 and study in the fields of law, medicine, education, and psychology. They allege that the loss of

18 DACA will frustrate their professional goals and accomplishments. They further allege that as a

19 result of the rescission, they will lose access to numerous federal and state benefits, and may not

20 be able to reside in the United States with their families. They applied for DACA in reliance on

21 the government’s representations that information provided under the program would not be

22 used for purposes of immigration enforcement (Garcia Compl. ¶¶ 4–9, 55, 59, 72, 78, 85, 95,

23 128).

24

Finally, the County of Santa Clara and the Service Employees International Union Local

25 521 filed their complaint on October 10. The County alleges that it employs DACA recipients,

26 including union members, in key positions, such as in its In-Home Supportive Services Program

27 and New Americans Fellowship Program. The County alleges that it has expended time and

28 money in training these employees, and that it relies on them to provide important services.

14

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1 As DACA recipients leave the workforce, the County will lose important employees, will incur

2 harm to its economy and suffer decreased tax revenue, and will incur the costs of increased

3 dependency on subsidized health care and other County services. Local 521 sues as an

4 associational plaintiff on behalf of its members who are DACA recipients, and alleges that the

5 Union’s organizational mission is to organize, represent, and empower employees, as well as

6 mobilize immigration reform (Santa Clara Compl. ¶¶ 1, 15–20, 32, 37, 43–52).

7

Collectively, plaintiffs assert the following claims:

8

•

The rescission violated the Administrative Procedure Act because it

9

was arbitrary, capricious, an abuse of discretion, and otherwise not in

10

accordance with law (UC Compl. ¶¶ 50–58; State Compl. ¶¶ 152–55;

11

Garcia Compl. ¶¶ 165–84; Santa Clara Compl. ¶¶ 67–73).

12

•

The rescission violated the APA because it was a substantive rule that

13

did not comply with the APA’s notice-and-comment requirements or

14

the Regulatory Flexibility Act’s mandate under 5 U.S.C. § 604 that

15

an agency publish analysis of a rule’s impact on small businesses

16

(UC Compl. ¶¶ 59–66; State Compl. ¶¶ 146–63; San Jose Compl.

17

¶¶ 59–63; Garcia Compl. ¶¶ 177–84).

18

•

The rescission deprived DACA recipients of constitutionally-protected

19

property and liberty interests without due process of law. Plaintiffs also

20

allege that the rescission violated due process because the government

21

changed its policy regarding agency use of DACA-related information

22

(UC Compl. ¶¶ 67–73; State Compl. ¶¶ 141–45; Garcia Compl.

23

¶¶ 133–47; Santa Clara Compl. ¶¶ 59–66).

24

•

The rescission violates equal protection of the law because it was

25

motivated by discriminatory animus and because it deprived DACA

26

grantees of their substantial interests in supporting themselves and

27

furthering their education (State Compl. ¶¶ 172–77; San Jose Compl.

28

¶¶ 52–58; Garcia Compl. ¶¶ 148–59; Santa Clara Compl. ¶¶ 74–78).

15

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1

•

The rescission violates equitable estoppel. DACA recipients provided

2

detailed personal information to the government and rearranged their

3

lives based on the government’s representations, but now face the

4

possibility of removal. Plaintiffs argue that the government should

5

therefore be equitably estopped from terminating DACA or from using

6

their DACA information for immigration enforcement purposes (State

7

Compl. ¶¶ 164–71; Garcia Compl. ¶¶ 192–99; Santa Clara Compl.

8

¶¶ 79–86).

9

•

Plaintiffs seek a declaration that the rescission was unlawful and an

10

order restoring DACA (UC Compl. at 16, State Compl. at 35–36;

11

San Jose Compl. at 15–16; Garcia Compl. at 43; Santa Clara Compl.

12

at 26–27).

13

On September 21, an initial case management conference occurred for all DACA actions

14 in our district. At the conference, all counsel, including government counsel, presented a joint

15 proposal whereby the government would file the administrative record by October 13.

16 Significantly, although the government argued that discovery would be premature, it agreed to

17 submit the administrative record without any condition that it be done before any decision on its

18 threshold jurisdictional motion (presumably because it knew its jurisdictional motion would be

19 premised on the administrative record) (see Dkt. No. 114 at 16; Tr. at 17:3, 22:2). The Court

20 made only slight revisions to the joint proposal, all in aid of a stated goal of providing a full

21 record and final decision for our court of appeals prior to the March 5 expiration date. Pursuant

22 to FRCP 26, a case management order then set a October 6 deadline for the government to file

23 the administrative record, set a briefing schedule for the parties’ motions to dismiss, for

24 provisional relief, or for summary judgment, and permitted the parties to proceed with

25 reasonable, limited, and narrowly-directed discovery (Dkt. No. 49).

26

The government filed an administrative record on October 6. It was merely, however,

27 fourteen documents comprising 256 pages of which 187 consisted of published opinions from

28 the DAPA litigation, and all of which already resided in the public domain. All non-public

16

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1 materials, some eighty-four documents, actually reviewed by the Acting Secretary remained

2 withheld as privileged (Dkt. No. 71). In other words, of the ninety-eight DACA-related

3 documents personally considered by the decisionmaker, all but the fourteen already known to

4 the public were withheld as privileged. Although government counsel further indicated, upon

5 inquiry by the district judge, that the decisionmaker had also likely received verbal input,

6 nothing was included in the administrative record to capture this input. Nor were there any

7 materials regarding the agency’s earlier, recent decisions to leave DACA in place.

8

On October 9, plaintiffs moved to require the government to complete the administrative

9 record, seeking all materials considered directly or indirectly by the Acting Secretary in

10 reaching her decision to rescind DACA, which motion was granted in part and denied in part.

11 The government, having earlier consented to filing the administrative record, was ordered to

12 keep its word and to file a complete administrative record (Dkt. Nos. 65, 79–80).

13

Instead, the government filed a petition for writ of mandamus with our court of appeals,

14 seeking relief from having to complete the administrative record until after its jurisdictional

15 arguments were determined, a turnabout from its earlier voluntary proposal and stipulation to

16 file the administrative record as part of an agreed-upon schedule. After full briefing and oral

17 argument, our court of appeals denied the government’s mandamus petition and vacated the

18 stay (over one dissent).5

19

The government was again ordered to complete the administrative record, this time by

20 November 22, later extended to December 22 to accommodate the government’s claim of

21 burden. On December 1, however, the government filed a petition for writ of mandamus and

22 application for a stay in the United States Supreme Court. Ultimately, the Supreme Court did

23 not reach the merits of the government’s petition but required that defendants’ jurisdictional

24 defenses be adjudicated prior to consideration of discovery or completing the administrative

25
5 Recently, the United States Court of Appeals for the Second Circuit denied the government’s petition
26 for a writ of mandamus to stay an order to supplement the same administrative record. The court of appeals
found that there was “a strong suggestion that the record before the District Court was not complete” and, noting
27 that nearly 200 pages of the record consisted of published opinions from various federal courts, “[i]t is difficult
to imagine that a decision as important as whether to repeal DACA would be made based upon a factual record
28 of little more than 56 pages, even accepting that litigation risk was the reason for repeal.” In Re: Kirstjen M.
Nielsen, No. 17-3345 (2d. Cir. Dec. 27, 2017).

17

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1 record (Dkt. Nos. 86, 188, 197, 214, 224), a decision the district judge himself might have made

2 at the outset save for the government’s own proposal and agreement to file the administrative

3 record in October.

4

Consequently, this action has proceeded on the incomplete administrative record

5 initially filed by the government. Plaintiffs have been forced to draw on other materials.

6 Ironically, even the government in these motions relies on material outside of the administrative

7 record to defend the agency decision (Dkt. No. 204 at 10, 12, 19–20). The parties have now

8 fully briefed motions to dismiss and a motion for provisional relief, all argued on December 20

9 (Dkt. Nos. 111, 114). This order now follows.

10

ANALYSIS

11

1.

MOTION TO DISMISS.

12

Defendants raise three jurisdictional arguments under FRCP 12(b)(1). First, they argue

13 that the decision to rescind DACA was a discretionary act barred from judicial review under

14 the APA. Second, they contend that the INA bars judicial review. Third, although defendants

15 concede that Individual Plaintiffs have standing, they contend that no others do. Each is

16 now addressed in turn. A separate order will consider defendants’ motion to dismiss under

17 FRCP 12(b)(6).

18

A. The DACA Rescission Was Not Committed

To Agency Discretion by Law.

19

Congress has instructed our district courts to review and set aside agency action found

20

to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

21

5 U.S.C. § 706(2)(A). Under the APA, however, our district courts lack subject-matter

22

jurisdiction to review agency action that is “committed to agency discretion by law.” 5 U.S.C.

23

§ 701(a)(2).

24

In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), the

25

Supreme Court explained that the jurisdictional bar of Section 701(a)(2) is “very narrow” and

26

“applicable in those rare instances where statutes are drawn in such broad terms that in a given

27

case there is no law to apply.” The Supreme Court held that because the statute there at issue

28

contained “clear and specific directives” guiding the agency’s decision, there was “‘law to

18

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1 apply,’ so the exemption for action ‘committed to agency discretion’ [was] inapplicable.” Id. at

2 411–13 (quotations and citations omitted).

3

When it next revisited the exception in Heckler v. Chaney, 470 U.S. 821, 830 (1985),

4 the Supreme Court reiterated that the exception applies only where “the statute is drawn so

5 that a court would have no meaningful standard against which to judge the agency’s exercise

6 of discretion.” There, condemned inmates asked the FDA to bring an enforcement action to

7 prevent purported violations of the Federal Food, Drug, and Cosmetic Act through the

8 administration of death-penalty drugs. The FDA Commissioner, however, refused to do so on

9 the ground that the FDA lacked jurisdiction and otherwise should not interfere with the state

10 criminal justice system. Skipping over the agency jurisdiction issue, the Supreme Court held

11 that such decisions not to prosecute or initiate enforcement actions are generally not reviewable

12 as they are “committed to an agency’s absolute discretion.” Id. at 824–25, 831.

13

Chaney identified several characteristics of non-enforcement decisions as key to

14 its holding. First, non-enforcement decisions require a complicated balancing of factors

15 “peculiarly within [the agency’s] expertise,” including whether “resources are best spent on

16 this violation or another, whether the agency is likely to succeed if it acts, whether the particular

17 enforcement action requested best fits the agency’s overall policies, and . . . whether the agency

18 has enough resources to undertake the action at all.” Id. at 831. Second, in refusing to act,

19 an agency “does not exercise its coercive power over an individual’s liberty” and accordingly

20 “does not infringe upon areas that courts often are called upon to protect.” Id. at 832. When an

21 agency does act to enforce, however, that action itself provides a focus for judicial review,

22 inasmuch as the agency must have exercised its power in some manner. Third, a refusal to

23 institute enforcement proceedings is similar to a prosecutor’s decision not to indict, which

24 decision “has long been regarded as the special province of the Executive Branch.” Ibid.

25

Our case is different from Chaney. There, the agency simply refused to initiate an

26 enforcement proceeding. Here, by contrast, the agency has ended a program which has existed

27 for five years affecting 689,800 enrollees. Importantly, major policy decisions are “quite

28 different from day-to-day agency nonenforcement decisions.” National Treasury Employees

19

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1 Union v. Horner, 854 F.2d 490, 496 (D.C. Cir. 1988). Rather, broad enforcement policies “are

2 more likely to be direct interpretations of the commands of the substantive statute rather than

3 the sort of mingled assessments of fact, policy, and law that drive an individual enforcement

4 decision.” Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 677 (D.C. Cir. 1994).

5 Even defendants concede that where “the agency’s interpretation of a statute is embedded in a

6 non-reviewable enforcement policy, the former may be reviewable as such” (Dkt. No. 218 at 3

7 n.4). Although they contend that the rescission memorandum “does not contain an embedded

8 interpretation of the INA,” that assertion is incompatible with the Acting Secretary’s explicit

9 references to the INA and the Attorney General’s determination that DACA was effectuated

10 without “statutory authority.” The first and third Chaney factors, accordingly, do not apply to

11 the instant case.6

12

Chaney is also distinguishable because, unlike there, here the government reversed

13 course after five years of inviting DACA recipients out of the shadows. In contrast to

14 nonenforcement decisions, “rescissions of commitments, whether or not they technically

15 implicate liberty and property interests as defined under the fifth and fourteenth amendments,

16 exert much more direct influence on the individuals or entities to whom the repudiated

17 commitments were made.” Robbins v. Reagan, 780 F.2d 37, 47 (D.C. Cir. 1985). Through

18 DACA, the government has invited undocumented aliens who meet threshold criteria to step

19 forward, disclose substantial personal information, pay a hefty fee, and comply with ongoing

20 conditions, all in expectation of (though not a right to) continued deferred action. DACA

21 allows enrollees to better plan their careers and lives with a reduced fear of removal. DACA

22 work authorizations, for example, allow recipients to join in the mainstream economy (and pay

23 taxes). DACA covers a class of immigrants whose presence, seemingly all agree, pose the least,

24 if any, threat and allows them to sign up for honest labor on the condition of continued good

25 behavior. This has become an important program for DACA recipients and their families, for

26
6 Contrary to defendants, Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir. 1990), is distinguishable
27 on its facts. There, the Fifth Circuit addressed a class action stemming from the Immigration and Naturalization
Service’s failure to adjudicate requests for voluntary departure. The court of appeals determined that the district
28 court had improperly issued an injunction directing INS to consider particular grounds in deciding individual
requests for voluntary departure and employment authorization. Id. at 1046.

20

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1 the employers who hire them, for our tax treasuries, and for our economy. An agency action to

2 terminate it bears no resemblance to an agency decision not to regulate something never before

3 regulated.

4

Finally, there is law to apply. The main, if not exclusive, rationale for ending DACA

5 was its supposed illegality. But determining illegality is a quintessential role of the courts.7

6

B. The INA Does Not Bar Review.

7

The principle that courts owe substantial deference to the immigration determinations of

8 the political branches is important and undisputed. Washington v. Trump, 847 F.3d 1151, 1162

9 (9th Cir. 2017). That deference, however, does not remove the decision to rescind DACA from

10 the ambit of judicial review. Rather, the Supreme Court has applied the “strong presumption

11 in favor of judicial review of administration action” in the immigration context. See INS v.

12 St. Cyr, 533 U.S. 289, 298–99 (2001).

13

In this connection, defendants raise two arguments. First, they contend that review

14 of discretionary enforcement decisions results in the inappropriate delay of removal, and

15 accordingly prolongs violations of our immigration laws. This argument, however, again

16 ignores that plaintiffs do not challenge any particular removal but, rather, challenge the abrupt

17 end to a nationwide deferred-action and work-authorization program. In any individual case,

18 DACA allows DHS to revoke deferred status and to deport. Second, defendants assert that

19 review of such decisions may involve disclosure of law enforcement priorities and

20 foreign-policy objectives. Neither concern is implicated here, as defendants’ stated reasons

21 for the rescission all relate to the across-the-board cancellation of DACA based on supposed

22 illegality, not to the facts particular to any proposed removal.

23

24

25

26
7 Defendants are correct, of course, that a presumptively unreviewable agency action does not become
27 reviewable simply because “the agency gives a reviewable reason for otherwise unreviewable action.” ICC v.
Bhd. of Locomotive Eng’s, 482 U.S. 270, 283 (1987). As discussed above, however, the rescission of DACA
28 was not such an unreviewable decision.

21

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1

Nor does Section 1252(g) bar judicial review of the agency action in question. 8 U.S.C.

2 § 1252(g) provides:

3

Except as provided in this section and notwithstanding any other

provision of law (statutory or nonstatutory) . . . no court shall have

4

jurisdiction to hear any cause or claim by or on behalf of any alien

arising from the decision or action by the Attorney General to

5

commence proceedings, adjudicate cases, or execute removal

orders against any alien under this chapter.

6

As explained by the Supreme Court, this provision applies only to the three discrete

7

decisions or actions named in Section 1252(g). AADC, 525 U.S. at 482. Plaintiffs’ claims do

8

not involve such decisions, but rather the challenge here is to the across-the-board cancellation

9

of a nationwide program.8

10

Defendants recognize that these actions were brought prior to the commencement of

11

any removal proceedings. Nevertheless, they argue that Section 1252(g) precludes review of

12

plaintiffs’ claims because the decision to discontinue deferred action is “an ingredient to the

13

commencement of enforcement proceedings.” It is true that eliminating DACA draws its

14

enrollees one step closer to deportation, but the Supreme Court rejected the argument that

15

Section 1252(g) somehow precludes review of the “many other decisions or actions that may be

16

part of the deportation process.” As AADC emphasized, “[i]t is implausible that the mention of

17

three discrete events along the road to deportation was a shorthand way of referring to all claims

18

arising from deportation proceedings.” Ibid.

19

Defendants cite two decisions. Importantly, however, both stemmed from already-

20

commenced deportation or removal proceedings. See Botezatu v. I.N.S., 195 F.3d 311, 312

21

(7th Cir. 1999) (declining to review a decision to deny deferred action after plaintiff had been

22

found deportable); Vasquez v. Aviles, 639 F. App’x 898, 899–900 (3d Cir. 2016) (district court

23

lacked jurisdiction to hear habeas corpus petition that claimed plaintiff was improperly denied

24

DACA relief).

25

By comparison, our court of appeals has held, following AADC, that Section 1252(g)

26

does not bar review of actions that occur “prior to any decision to ‘commence proceedings.’”

27

28

8 The district court in Batalla Vidal also concluded that Section 1252(g) did not bar judicial review of

challenges to the DACA rescission. Batalla Vidal v. Duke, 2017 WL 5201116, at *13.

22

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1 Kwai Fun Wong v. United States, 373 F.3d 952, 965 (9th Cir. 2004). The claims in Kwai Fun

2 Wong challenged the revocation of the plaintiff’s parole without first deciding her application

3 for immigration relief, conduct which “resulted in the INS’s decision to commence removal

4 proceedings and ultimately to remove” the plaintiff from the United States. Id. at 959, 964.

5 Contrary to defendants, it is immaterial that Kwai Fun Wong did not involve deferred action,

6 as both the revocation of parole and the revocation of deferred action are “an ingredient” to the

7 commencement of enforcement proceedings. The jurisdictional limits of Section 1252(g) were

8 instead “directed at the deconstruction, fragmentation, and hence prolongation of removal

9 proceedings.” AADC, 525 U.S. at 482.

10

C. Most Plaintiffs Have Standing.

11

To establish standing, Article III of the United States Constitution requires plaintiffs

12 to show “(1) they suffered an injury in fact, (2) that is fairly traceable to the challenged conduct

13 of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,

14 Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

15 560–61 (1992)). The standing inquiry is focused on whether the plaintiff has a sufficient

16 personal stake in the outcome of the controversy to ensure that the parties will be truly adverse

17 and their legal presentations sharpened. Massachusetts v. EPA, 549 U.S. 497 (2007). Standing

18 must be assessed on a claim-by-claim basis. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352

19 (2006).

20

Defendants do not dispute that the Individual Plaintiffs have standing. Rather, they argue

21 in brief that the entity plaintiffs (the state and local governments, UC Plaintiffs, and SEIU Local

22 521) lack Article III standing because the rescission does not regulate or restrict them in any

23 way. Defendants therefore posit that the entity plaintiffs’ claimed injuries are due only to

24 “incidental effects” of the rescission, which defendants contend are insufficient to establish

25 injury-in-fact. As set forth below, these arguments lack merit.

26

First, California, Maryland, the City of San Jose, and the County of Santa Clara each

27 employ DACA recipients, in connection with whom they have invested substantial resources

28 in hiring and training. Plaintiffs allege that they will not only lose these employees as work

23

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1 authorizations expire, but that they will also need to expend additional resources to hire and train

2 replacements. San Jose further alleges that as a result of the rescission, the City has had

3 decreased productivity, and that it has had to expend time and resources to deal with decreased

4 employee morale (States Compl. ¶¶ 26–27, 32, 53; San Jose Compl. ¶¶ 49–50; Santa Clara

5 Compl. ¶¶ 32–37; App. 11, 95–97, 706–07, 798, 1575–76).

6

Second, Plaintiff States, including Maine and Maryland, stand to lose significant tax

7 revenue as a result of the rescission (States Compl. ¶¶ 28–30, 37, 49–50, 70–71). Although

8 general allegations of injury to a state’s economy and the associated decline in general tax

9 revenues may not be sufficient to establish standing, here, Plaintiff States sufficiently allege a

10 “direct injury in the form of a loss of specific tax revenues.” Wyoming v. Oklahoma, 502 U.S.

11 437, 448 (1992). They allege, for example, that Maine stands to lose $96,000 in annual state

12 and local taxes as DACA recipients leave the workforce (States Compl. ¶¶ 30, 38). Evidence

13 submitted by plaintiffs supports these allegations, and demonstrates that DACA’s rescission

14 would reduce state and local tax contributions by DACA-eligible individuals by at least half

15 (App. 68–74, 218–30).

16

Third, the University of California has also established that it will suffer injury to its

17 proprietary interests. As declarations submitted by the University demonstrate, the rescission

18 has harmed the University in multiple ways. Because DACA recipients can no longer seek

19 advance parole, these students are unable to travel outside of the United States for research and

20 educational conferences. DACA recipients have also decided to cancel their enrollment in the

21 University, and additional recipients are at risk of dropping out, because they would not be able

22 to pay the cost of attendance without work authorizations. The University has also invested

23 resources in recruiting and retaining DACA recipients as employees in various roles, including

24 as teaching assistants and health care providers. Such investments would be lost should these

25 employees lose their ability to work in the United States.

26

California, Maryland, and Minnesota also allege injury to their public universities

27 through harm to their educational missions and the loss of students and teachers. According to

28 the declarations filed by plaintiffs, the rescission, and the resulting loss of work authorization

24

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1 and potential for deportation, will adversely impact the diversity of the talent pool of potential

2 students, which will make it more difficult for the universities to fulfill their missions of

3 increasing diversity (States Compl. ¶¶ 27, 55, 64–66; App. 12–16, 496–514, 884–90). Our court

4 of appeals recently affirmed the standing of two state governments to challenge an immigration

5 policy that similarly harmed the plaintiffs’ public universities. Washington v. Trump, 847 F.3d

6 1151, 1160–01 (9th Cir. 2017). These injuries accordingly give the University of California and

7 the States of California, Maryland, and Minnesota Article III standing. Ibid. (citing Singleton v.

8 Wulff, 428 U.S. 106, 114–16 (1976)).9

9

Fourth, State Plaintiffs Maryland and Minnesota further allege that the rescission will

10 negatively impact their public health programs. In particular, Maryland and Minnesota allege

11 that rescinding DACA will cause many DACA grantees to lose their employer-based health

12 insurance, imposing higher healthcare costs on the state (State Compl. ¶¶ 51, 62). These injuries

13 are also sufficient to confer Article III standing.10

14

Finally, SEIU Local 521 has associational standing to bring its claims on behalf of its

15 members who are DACA recipients. An association has standing to bring suit on behalf of its

16 members when: (1) its members would otherwise have standing to sue in their own right;

17 (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the

18 claim asserted nor the relief requested requires the participation of individual members in the

19 lawsuit. Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock,

20

21

9 The public universities of California, Maryland, and Minnesota are branches of the states under state

law. Campbell v. Regents of Univ. of California, 35 Cal. 4th 311, 321 (2005); Hanauer v. Elkins, 217 Md. 213,
22 219, 141 A.2d 903, 906 (Md. 1958); Univ. of Minn. v. Raygor, 620 N.W.2d 680, 683 (Minn. 2001).

23

10 Although not discussed by the parties, the District of Columbia Circuit held that Joe Arpaio, Sheriff

of Maricopa County, Arizona, lacked Article III standing to challenge DACA. Arpaio v. Obama, 797 F.3d 11
24 (D.C. Cir. 2015). While the court of appeals found that the plaintiff’s alleged harm — increased spending on

criminal investigation, apprehension, and incarceration — was sufficiently concrete, his theory that DACA 25 would lead to an increased number of undocumented immigrants committing crimes in his jurisdiction was too

speculative. Id. at 19–20. Here, by contrast, plaintiffs allege that the rescission will cause DACA recipients to
26 lose their work authorizations, and that plaintiffs will lose employees and students, suffer decreased tax revenue,

and otherwise incur increased costs as a direct result. This case is also different from Crane v. Johnson,
27 783 F.3d 244, 252 (5th Cir. 2015), where the Fifth Circuit held that Mississippi lacked standing to challenge

DACA because it failed to submit evidence that DACA eligible immigrants resided in the state. Defendants do
28 not dispute State Plaintiffs’ allegations that hundreds of thousands of DACA recipients live in Plaintiff States.

25

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1 477 U.S. 274, 282 (1986) (quoting Hunt v. Washington State Apple Advertising Comm’n,

2 432 U.S. 333, 343 (1977)). SEIU has established all three elements here. SEIU has members

3 who are DACA recipients. Its constitution states that part of its mission is to provide its

4 members with a voice in the larger community, and that its members should be treated equally

5 with dignity regardless of immigration status or national origin. SEIU has also formed a

6 Committee on Comprehensive Immigration Reform, a member-based committee that engages in

7 organizing, advocacy, and education to help undocumented workers. Its members’ interests in

8 these actions are therefore germane to SEIU’s stated purpose (App. 801–09). Furthermore, this

9 action does not require the participation of SEIU’s individual members.

10

Defendants, in arguing that the entity plaintiffs lack standing, rely solely on Linda R.S. v.

11 Richard D., 410 U.S. 614, 619 (1973). There, the plaintiff lacked standing to challenge a Texas

12 state court’s interpretation of a child support statute. Ibid. The Supreme Court held that,

13 although the plaintiff had alleged an injury, she had not shown “a direct nexus between the

14 vindication of her interest and the enforcement of the State’s criminal laws” because the

15 relationship between the state’s decision not to prosecute and the father’s decision not to pay

16 under the statute could “at best, be termed only speculative.” Id. at 618–19. Linda R.S. has no

17 application here. As explained above, the entity plaintiffs have alleged harm to their proprietary

18 interests as a direct result of defendants’ decision to terminate the DACA program, most notably

19 through its termination of work authorizations. Accordingly, the entity plaintiffs have

20 sufficiently alleged injury-in-fact traceable to the termination of DACA, and have demonstrated

21 that these harms are redressable by their requested relief.11

22

Turning to prudential standing under the APA, a plaintiff must show that it has suffered

23 or will suffer sufficient injury-in-fact, and that “the interest[s] sought to be protected by the

24 complainant [are] arguably within the zone of interests to be protected or regulated by the

25 statute . . . in question.” Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S.

26 479, 488 (1998).

27
11 Because defendants’ conduct imposes direct injury on the State Plaintiffs’ proprietary interests, this
28 order need not reach defendants’ argument that the State Plaintiffs lack standing as parens patriae.

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1

A plaintiff that is not itself the subject of the contested regulatory action lacks prudential

2 standing only where its interests “are so marginally related to or inconsistent with the purposes

3 implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the

4 suit.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987). This test is “not meant to be

5 especially demanding,” and must be applied “in keeping with Congress’s evident intent when

6 enacting the APA to make agency action presumably reviewable.” Match-E-Be-Nash-She-Wish

7 Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quotations and citations

8 omitted).

9

The parties’ briefs include only a cursory discussion of plaintiffs’ prudential standing

10 under the APA. Again, defendants do not dispute that the Individual Plaintiffs also have

11 statutory standing. SEIU, which asserts the rights of its members who are DACA recipients,

12 likewise seeks the protection of interests regulated by the INA. Not all of the entity plaintiffs,

13 however, have established prudential standing to proceed on their APA claims.

14

Plaintiffs primarily rely on our court of appeals’ recent decision in Hawaii v. Trump,

15 859 F.3d 741, 765 (9th Cir. 2017), as well as on various provisions of the INA which provide for

16 student- and employment-related immigrant visas. Plaintiffs do not contend, however, that their

17 DACA-recipient students or employees qualify for such visas. Nor do plaintiffs point to

18 any provisions of the INA which indicate a protected interest in enrolling students with deferred

19 action in their schools or universities. Plaintiffs are also unable to point to any provision of the

20 INA indicating that Congress intend to protected Plaintiff States’ interests in maintaining income

21 tax revenue or avoiding increased healthcare costs.

22

By contrast, local and state governments San Jose, Santa Clara, California, and

23 Maryland, as well as the University of California, have all identified injuries resulting from their

24 status as employers, and allege harm caused by their employees’ future loss of deferred action

25 and associated work authorization. The INA gives the Executive Branch broad discretion to

26 determine when noncitizens may work in the United States, 8 U.S.C. § 1324a(h)(3), and

27 regulations promulgated pursuant to this authority allow recipients of deferred action to apply

28 for work authorization if they can demonstrate an “economic necessity for employment.”

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1 8 C.F.R. § 274a.12(c)(14). Moreover, the INA contains detailed provisions which subject

2 employers to criminal and civil liability for knowingly hiring unauthorized aliens, see 8 U.S.C.

3 § 1324a(a)(1)(A), and for “continu[ing] to employ the alien in the United States knowing

4 the alien is (or has become) an unauthorized alien with respect to such employment,” id.

5 § 1324a(a)(2). The work authorization document that the agency issues to DACA recipients

6 is one of the documents that is acceptable for Form I-9, Employment Eligibility Verification,

7 which employers must complete and retain for each individual they hire for employment in the

8 United States (App. 2061–62). Plaintiffs’ interest in their employees’ continued authorization

9 to work in the United States is therefore “arguably within the zone of interests” that the INA

10 protects. Hawaii, 859 F.3d at 765; Nat’l Credit Union Admin., 522 U.S. at 488.12

11

Accordingly, even though the zone of interests inquiry is not demanding, this order

12 concludes that Maine and Minnesota’s interests are “so marginally related” to the purposes

13 implicit in the INA that it cannot reasonably be assumed that Congress intended to permit the

14 suit. Maine and Minnesota’s APA claims are accordingly DISMISSED WITH LEAVE TO AMEND.

15 The remaining entity plaintiffs, however, have established that their interests that support

16 Article III standing also satisfy the APA’s zone of interests test.

17

*

*

*

18

Apart from the holding that Maine and Minnesota do not have statutory standing, the

19 foregoing rejects all of the government’s jurisdictional arguments to dismiss plaintiffs’

20 challenges under the Administrative Procedure Act.

21

2.

PROVISIONAL RELIEF.

22

Plaintiffs seek a preliminary injunction to restore DACA. To support a preliminary

23 injunction, plaintiffs must establish four elements: (1) likelihood of success on the merits;

24 (2) irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in

25

26

12 Defendants’ sole argument against the entity plaintiffs’ prudential standing is that no provision

of the INA protects the entity plaintiffs from “bearing the incidental effects” of a denial of deferred action.
27 The case on which defendants rely, however, dealt with a private anti-immigration organization whose members

were not impacted by the immigration policy at issue. See Fed’n for Am. Immigration Reform, Inc. v. Reno,
28 93 F.3d 897, 899 (D.C. Cir. 1996).

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1 their favor; and (4) that the injunction is in the public interest. Winter v. Natural Resources

2 Defense Council Inc., 555 U.S. 7, 20 (2008). As now explained, the record warrants most of the

3 provisional relief requested.

4

A. Likelihood of Success on the Merits.

5

Plaintiffs have shown a likelihood of success on their claim that the rescission

6 was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.

7 Specifically, plaintiffs are likely to succeed on their claims that: (1) the agency’s decision to

8 rescind DACA was based on a flawed legal premise; and (2) government counsel’s supposed

9 “litigation risk” rationale is a post hoc rationalization and would be, in any event, arbitrary and

10 capricious.

11

(1) The Rescission was Based on a Flawed Legal Premise.

12

The agency action was “not in accordance with law” because it was based on the flawed

13 legal premise that the agency lacked authority to implement DACA. When agency action is

14 based on a flawed legal premise, it may be set as aside as “arbitrary, capricious, an abuse of

15 discretion, or otherwise not in accordance with law.” See Massachusetts, 549 U.S. at 532

16 (setting aside the EPA’s denial of a petition for rulemaking under the Clean Air Act for

17 supposed lack of authority); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007).

18 This order holds that DACA fell within the agency’s enforcement authority. The contrary

19 conclusion was flawed and should be set aside.

20

The administrative record includes the 2014 determination of the Office of Legal Counsel

21 of the United States Department of Justice that programmatic deferred action is a permissible

22 exercise of DHS’s enforcement discretion. OLC noted that deferred action programs such as

23 DACA are permissible so long as immigration officials retain discretion to evaluate each

24 application on an individualized basis and so long as the concerns animating the program were

25 consistent with the types of concerns that have customarily guided the exercise of immigration

26 enforcement discretion. OLC recognized that the “practice of granting deferred action date[d]

27 back several decades,” and that “Congress has long been aware of the practice of granting

28 deferred action, including in its categorical variety, and of its salient features; and it has never

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1 acted to disapprove or limit the practice.” Indeed, not only has Congress not limited the practice,

2 but it has “enacted several pieces of legislation that have either assumed that deferred action

3 would be available in certain circumstances, or expressly directed that deferred action be

4 extended to certain categories of aliens” (AR 15–27).

5

As explained in OLC’s opinion, each feature of the DACA program is anchored in

6 authority granted or recognized by Congress or the Supreme Court. Because this is the heart

7 of the problem, and with apology for some repetition, this order will now examine each feature

8 in turn.

9

The Secretary of Homeland Security is responsible under the INA for “establishing

10 national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). The Secretary is

11 also charged with the administration and enforcement of the INA. 8 U.S.C. § 1103. In making

12 immigration enforcement decisions, the executive “considers a variety of factors such as the

13 danger posed to the United States of an individual’s unlawful presence, the impact of removal

14 on the nation’s international relations, and the ‘human concerns’ of whether the individual ‘has

15 children born in the United States, long ties to the community, or a record of distinguished

16 military service.’” Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015) (citing Arizona v. United

17 States, 132 S. Ct. 2492, 2499 (2012)). In instituting DACA, Secretary Napolitano explained that

18 the program was “necessary to ensure that [DHS’s] enforcement resources are not expended on

19 [] low priority cases but are instead appropriately focused on people who meet our enforcement

20 priorities” (AR 1).13

21

As set forth above, deferred action originated without any statutory basis apart from the

22 discretion vested by Congress in connection with the agency’s enforcement of the immigration

23 laws. Over the decades, however, deferred action became such a fixture that Congress referred

24 to it by name in several INA amendments. See, e.g., 8 U.S.C. § 1227(d)(2) (stating that U visa

25 and T visa applicants who were denied an administrative stay of removal were not precluded

26 from applying for “deferred action”); 8 U.S.C. § 1154(a)(1)(D)(i)(II) (stating that eligible

27
13 The United States Court of Appeals for the District of Columbia Circuit did not reach the merits of
28 Sheriff Joe Arpaio’s challenges to DACA and DAPA but instead dismissed the case for lack of Article III
standing. Arpaio, 797 F.3d at 15.

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1 derivatives of VAWA petitioners were eligible for “deferred action” and work authorization); 8

2 U.S.C. § 1151 note (stating that certain immediate family members of certain United States

3 citizens “shall be eligible for deferred action”). Congress has also acknowledged deferred action

4 in enactments outside of the INA. See, e.g., 49 U.S.C. § 30301 note (specifying that evidence of

5 lawful status includes proof of “deferred action status”); USA PATRIOT Act of 2001, Pub. L.

6 No. 107-56, § 423(b), 115 Stat. 272, 361 (stating that immediate family members of legal

7 permanent residents killed on September 11, 2001 “may be eligible for deferred action”).

8 Congress has been free to constrain DHS’s discretion with respect to granting deferred action,

9 but it has yet to do so.

10

The Supreme Court has recognized the authority of DHS to grant relief from removal,

11 Arizona, 567 U.S. at 396, and has specifically recognized deferred action as a way to exercise

12 that discretion — “for humanitarian reasons or simply for [the Executive’s] own convenience.”

13 AADC, 525 U.S. at 484. Notably, our court of appeals has said that “the exercise of

14 prosecutorial discretion in deferred action flows from the authority conferred on the Secretary by

15 the INA.” Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 968 (9th Cir. 2017) (“Brewer

16 II”).14

17

In extending programmatic deferred action to DACA enrollees, the agency acted within

18 the scope of this long and recognized practice. In the exercise of its enforcement discretion and

19 policy-making, the agency simply found that DACA enrollees represented low priority cases

20 for removal and instituted DACA to manage that population while it redirected its resources

21 elsewhere. Even for enrollees approved under the program, DHS expressly retained the

22 authority to terminate their deferred action at any time, in the agency’s discretion. DACA

23 provided no guarantee against removal.

24

Nevertheless, DACA has provided recipients with a major benefit, namely work

25 authorizations for the period of deferral upon a demonstration of economic need. This has

26

27

14 In Brewer II, our court of appeals denied a petition for rehearing en banc. Circuit Judge Kozinski,

joined by five other Circuit Judges, filed a dissent to the denial of the petition, expressing the view that DACA
28 did not preempt Arizona’s law refusing to issue drivers’ licenses to DACA recipients. 855 F.3d at 958–62.

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1 allowed DACA recipients to become part of the mainstream workforce and contribute openly

2 to our economy. Significantly, Section 1324a(h)(3) defines an “unauthorized alien” not entitled

3 to work in the United States as an alien who is neither a legal permanent resident nor “authorized

4 to be . . . employed by [the INA] or by the [Secretary of Homeland Security].” In turn, the

5 Secretary of Homeland Security has allowed work authorizations in cases of deferred action

6 under 8 C.F.R. § 274a.12(c)(14). As our court of appeals has stated, “the Executive Branch has

7 determined that deferred action recipients — including DACA recipients — are ordinarily

8 authorized to work in the United States.” See Brewer I, 757 F.3d at 1062.

9

It is also within the lawful authority of the agency to determine that DACA recipients

10 do not accrue “unlawful presence” for purposes of the INA’s bars on re-entry. Pursuant to

11 pre-existent DHS regulations and policy guidance, deferred action recipients already avoided

12 accrual of “unlawful presence.” 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2);

13 Memorandum for Field Leadership, from Donald Neufeld, Acting Associate Director, Domestic

14 Operations Directorate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence

15 for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42 (May 6, 2009).

16 Importantly, DHS excludes recipients of deferred action from being “unlawfully present”

17 because their deferred action is considered a period of stay authorized by the government. See 8

18 U.S.C. § 1182(a)(9)(B)(ii) (an alien is deemed to be unlawfully present if the alien is present “in

19 the United States after the expiration of the period of stay authorized by the Attorney General

20 [and now the Secretary of Homeland Security]”); Brewer I, 757 F.3d at 1059.

21

Allowing DACA recipients to apply for and obtain advance parole to travel overseas and

22 return to the United States is also in accord with pre-existing regulations. 8 C.F.R. § 212.5(f);

23 8 U.S.C. § 1182(d)(5)(A) (the Attorney General [and now the Secretary of Homeland Security]

24 may “in his discretion parole into the United States temporarily under such conditions as he

25 may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public

26 benefit”).

27

In short, what exactly is the part of DACA that oversteps the authority of the agency?

28 Is it the granting of deferred action itself? No, deferred action has been blessed by both the

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1 Supreme Court and Congress as a means to exercise enforcement discretion. Is it the granting

2 of deferred action via a program (as apposed to ad hoc individual grants)? No, programmatic

3 deferred action has been in use since at least 1997, and other forms of programmatic

4 discretionary relief date back to at least 1956. Is it granting work authorizations coextensive

5 with the two-year period of deferred action? No, aliens receiving deferred action have been able

6 to apply for work authorization for decades. Is it granting relief from accruing “unlawful

7 presence” for purposes of the INA’s bars on reentry? No, such relief dates back to the George

8 W. Bush Administration for those receiving deferred action. Is it allowing recipients to apply for

9 and obtain advance parole? No, once again, granting advance parole has all been in accord

10 with pre-existing law. Is it combining all these elements into a program? No, if each step is

11 within the authority of the agency, then how can combining them in one program be outside its

12 authority, so long as the agency vets each applicant and exercises its discretion on a case-by-case

13 basis?

14

Significantly, the government makes no effort in its briefs to challenge any of the

15 foregoing reasons why DACA was and remains within the authority of the agency. Nor does the

16 government challenge any of the statutes and regulations under which deferred action recipients

17 obtain the foregoing benefits.

18

Instead, the administrative record shows that the Attorney General told the Acting

19 Secretary that DACA was illegal. First, the Attorney General said that DACA had been

20 improperly adopted by the Obama Administration after “Congress’ repeated rejection of

21 proposed legislation that would have accomplished a similar result.” But the proposals rejected

22 by Congress markedly differ from DACA. Importantly, while the proposed legislation would

23 have offered Dreamers the ability to become lawful permanent residents, no comparable

24 pathway was offered by DACA. Our court of appeals recognized this distinction, noting that “the

25 DREAM Act and the DACA program are not interchangeable policies because they provided

26 different forms of relief.” Brewer II, 855 F.3d at 976 n.10. In fact, the 2012 DACA memo

27 made explicit that DACA offered no pathway to lawful permanent residency, much less

28 citizenship. Secretary Napolitano concluded her memo by stating that DACA “confer[ed] no

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1 substantive right, immigration status or pathway to citizenship.” To claim that DACA was

2 rejected by Congress, therefore, is unfair.15

3

Second, another criticism of DACA was that applications received mechanical, routine

4 approval without individualized consideration. In her rescission memorandum, the Acting

5 Secretary indicated that “[United States Citizenship and Immigration Services] has not been

6 able to identify specific denial cases where an applicant appeared to satisfy the programmatic

7 categorical criteria as outlined in the [original DACA] memorandum, but still had his or her

8 application denied based solely upon discretion.” The simple answer to this, if true, would be

9 for the agency to instruct its adjudicators to exercise discretion, on a individualized basis, to

10 make sure applicants do not pose a threat to national security or public safety and are otherwise

11 deserving of deferred action.

12

It appears, moreover, that the Acting Secretary was in error when she said that USCIS

13 has been unable to identify discretionary denials of DACA applications. She cited no evidence

14 for this fact, and none is found in the administrative record. Possibly, the Acting Secretary relied

15 on findings made in the DAPA litigation. There, the majority panel noted that USCIS could not

16 produce any applications that satisfied the guidelines of the original DACA memorandum but

17 were nonetheless refused through an exercise of discretion. Texas, 809 F.3d at 172. As the

18 dissent pointed out, however, the district court may have conflated rejections of DACA

19 applications with denials, and as a result suggested that most denials were made for mechanical,

20 administrative reasons. Id. at 210 (King, J., dissenting). A declaration submitted in that case by

21 Donald Neufeld, then-Associate Director for Service Center Operations for USCIS, pointed to

22 several instances of discretionary denials. Id. at 175. That same declaration explained that while

23 a DACA application was rejected when it was “determined upon intake that the application [had]

24 a fatal flaw,” an application was denied when a USCIS adjudicator, on a case-by-case basis,

25 determined that the requestor either had not demonstrated that they satisfied the guidelines for

26
15 See, e.g., S. 1291, 107th Congress (2001); S. 1545, 108th Congress (2003); S. 2075, 109th Congress
27 (2005); H.R. 5131, 109th Congress (2006); H.R. 1275, 110th Congress (2007); S. 2205, 110th Congress (2007);
H.R. 1751, 111th Congress (2009); S. 3827, 111th Congress (2010); S. 3962, 111th Congress (2010); S. 3992,
28 111th Congress (2010); H.R. 6497, 111th Congress (2010); S. 952, 112th Congress (2011).

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1 DACA or when an adjudicator determined that deferred action should be denied even though

2 the threshold guidelines were met. Id. at 210–11 (dissent). The United States District Court

3 for the District of Columbia, in addressing nearly identical statistics, recognized the distinction.

4 The district court noted that as of December 2014, 36,860 requests for deferred action under

5 DACA were denied and another 42,632 applicants were rejected as not eligible, and concluded

6 that such statistics “reflect that [] case-by-case review is in operation.” Arpaio, 27 F. Supp. 3d

7 at 209 n.13. The administrative record tendered in our case completely fails to explain this

8 apparent discrepancy.

9

Third, the main ground given by the Attorney General for illegality was the Fifth

10 Circuit’s decision in the DAPA litigation. DACA, the Attorney General said, suffered from the

11 same “legal and constitutional defects” leveled against DAPA in Texas v. United States, 809

12 F.3d 134 (5th Cir. 2015). Upon consideration of the full history of that case, however, this was

13 an overstatement.

14

In the DAPA litigation, the district court held that DAPA violated the APA’s notice-and-

15 comment procedures because it constituted “a new rule that substantially change[d] both the

16 status and employability of millions” and inflicted “major costs on both states and federal

17 government.” The district court found that the discretionary aspects of DAPA were “merely

18 pretext,” based on its finding that DACA had been implemented in such a mechanical way

19 as to prevent the exercise of discretion on a case-by-case basis, and DAPA would therefore be

20 implemented in the same manner. Notice and opportunity for public comment, it held, should

21 have accordingly been given. Texas, 86 F. Supp. 3d at 671.

22

Although the Fifth Circuit recognized that “there was conflicting evidence on the degree

23 to which DACA allowed discretion,” because the government had failed to produce any

24 applications that satisfied all of the criteria but were refused deferred action by an exercise of

25 discretion, it was “not error — clear or otherwise —” for the district court to have concluded that

26 DHS had only issued denials under mechanical formulae. The appellate court also pointed to

27 DACA’s Operating Procedures, which contained “nearly 150 pages of specific instructions for

28

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1 granting or denying deferred action,” as supporting the conclusion that DACA did not leave the

2 agency free to exercise discretion.

3

It cautioned, however, that “[f]or a number of reasons, any extrapolation from DACA

4 must be done carefully.” Texas, 809 F.3d at 173 (emphasis added). In particular, the appellate

5 court recognized that DACA involved self-selecting applicants, and those who expected to be

6 denied relief were unlikely to apply. Id. at 174. The court also recognized that “DACA and

7 DAPA are not identical” and that because eligibility for DACA was restricted to a younger and

8 less numerous population, DACA applicants were less likely to have backgrounds that would

9 warrant a discretionary denial. Ibid.

10

In addition to affirming the notice-and-comment holding (over one dissent), two of the

11 judges on the Fifth Circuit panel went a large step further and held that DAPA conflicted with

12 the INA. The majority pointed out that the INA already had a specific provision through which

13 aliens could derive lawful status from their children’s immigration status. Id. at 180 n.167

14 (citing 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255). DAPA, the majority

15 said, circumvented this statutory pathway.

16

The Fifth Circuit also pointed out that the INA had specific provisions through which

17 aliens could be classified as “lawfully present,” could obtain discretionary relief from removal,

18 or could obtain eligibility for work authorization. Because DAPA could make 4.3 million

19 removable aliens eligible for lawful presence, employment authorization, and associated

20 benefits, the Fifth Circuit concluded that DAPA implicated “questions of deep ‘economic and

21 political significance’ that are central to [the INA’s] statutory scheme,” and therefore had

22 Congress wished to assign that decision to an agency, “it surely would have done so expressly.”

23

The Fifth Circuit rejected the argument that various provisions of the INA, such as the

24 broad grant of authority to the agency in 6 U.S.C. § 202(5) (providing that the Secretary “shall

25 be responsible for establishing national immigration enforcement policies and priorities”),

26 provided the authority to implement DAPA. Rather, it found that such grants of authority could

27 not reasonably be construed as assigning the agency decisions of such massive “economic and

28 political significance.” Such an interpretation, the majority said, would allow the agency to

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1 grant lawful presence and work authorization to any illegal alien in the United States. It

2 concluded that “even with ‘special deference’ to the Secretary,” the INA did not permit the

3 reclassification of 4.3 million aliens as “lawfully present,” thereby making them newly eligible

4 for a host of federal and state benefits, including work authorization.

5

The majority also rejected the argument that DAPA was moored in historical practice,

6 finding that such historical practice “does not, by itself, create power,” and that in any event,

7 previous deferred-action programs were not analogous to DAPA because most discretionary

8 deferrals had been done on a country-specific basis, usually in response to war, civil unrest, or

9 natural disasters, or had been bridges from one legal status to another. It found that “[n]othing

10 like DAPA, which alters the status of more than four million aliens, has ever been contemplated

11 absent direct statutory authorization.”

12

The majority concluded that Congress had “directly addressed the precise question

13 at issue” in DAPA because the INA “prescribes how parents may derive an immigration

14 classification on the basis of their child’s status and which classes of aliens can achieve deferred

15 action and eligibility for work authorization.” Texas, 809 F.3d at 186. Because it found that

16 DAPA was foreclosed by Congress’s “careful plan,” the majority held that the program was

17 “manifestly contrary to the statute.”

18

While at least some of the majority’s reasons for holding DAPA illegal would apply to

19 DACA, fairness requires saying that DACA and DAPA were different, as the panel opinion

20 stated. An important criticism against DAPA would not apply against DACA, namely the fact

21 that Congress had already established a pathway to lawful presence for alien parents of citizens

22 (so that DAPA simply constituted a more lenient substitute route). DACA, by contrast, has no

23 such analogue in the INA. And, there is a difference between 4.3 million and 689,800. Finally,

24 the criticism that DACA had been mechanically administered without the exercise of discretion

25 in individual cases, if true, could be fixed by simply insisting on exercise of discretion. In sum,

26 the DAPA litigation was not a death knell for DACA.

27

This order holds that, in light of our own court of appeals’ reasoning in Brewer I and

28 Brewer II, in light of the analysis of the Office of Legal Counsel of the United States Department

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1 of Justice, and the reasoning set forth above, our court of appeals will likely hold that DACA

2 was and remains a lawful exercise of authority by DHS. Plaintiffs are therefore likely to succeed

3 on the merits of their claim that the rescission was based on a flawed legal premise and must be

4 set aside as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

5 law.” Massachusetts, 549 U.S. at 528; Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 94

6 (1943); Safe Air for Everyone, 488 F.3d at 1101.16

7

(2) Government Counsel’s Alternative Rationale

Is Post Hoc and, in Any Event, Arbitrary,

8

Capricious, and an Abuse of Discretion.

9

Government counsel now advances an alternative rationale for the Secretary’s decision to

10 rescind DACA. Counsel contends that DHS acted within its discretion in managing its litigation

11 exposure in the Fifth Circuit, weighing its options, and deciding on an orderly wind down of the

12 program so as to avoid a potentially disastrous injunction in the Fifth Circuit. This, they say,

13 constituted a reasonable judgment call involving management of litigation risk and agency

14 resources.

15

Courts, of course, may not accept post hoc rationalizations for agency action, see

16 Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962), nor may they “supply a

17 reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp.,

18 Inc. v. Ark.-Best Freight Sys., 419 U.S. 281, 285–86 (1974); see also Cal. Pub. Util. Comm’n v.

19 Fed. Energy Regulatory Comm’n, No. 16-70481 at 15 (9th Cir. Jan. 8, 2018). Rather, “an

20 agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor

21 Vehicle Mfrs. Ass’n. of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50

22 (1983).

23

24
16 Defendants argue that if the Acting Secretary had relied on DACA’s purported illegality in
25 terminating the program, that reliance should be presumed to be a “reasonable policy judgment that immigration
decisions of this magnitude should be left to Congress.” This argument finds no support in the administrative
26 record. In Syracuse Peace Council v. F.C.C., upon which defendants rely, the agency explicitly based its
decision on the independent grounds that a policy was both unconstitutional and contrary to the public interest.
27 867 F.2d 654, 656 (D.C. Cir. 1989). Although the court of appeals elected to review only the agency’s policy
determination under the APA, it noted that “if the Commission had written its opinion in purely constitutional
28 terms, we would have no choice but to address the constitutional issue.” Id. at 659.

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1

The reason actually given in the administrative record for the rescission was DACA’s

2 purported illegality. The Attorney General’s letter and the Acting Secretary’s memorandum can

3 only be reasonably read as stating DACA was illegal and that, given that DACA must, therefore,

4 be ended, the best course was “an orderly and efficient wind-down process,” rather than a

5 potentially harsh shutdown in the Fifth Circuit. Nowhere in the administrative record did

6 the Attorney General or the agency consider whether defending the program in court would

7 (or would not) be worth the litigation risk. The new spin by government counsel is a classic

8 post hoc rationalization. That alone is dispositive of the new “litigation risk” rationale.

9

Significantly, the INA itself makes clear that once the Attorney General had determined

10 that DACA was illegal, the Acting Secretary had to accept his ruling as “controlling.” Section

11 1103(a)(1) of Title 8, a provision that allocates immigration power and duties among the

12 Secretary of Homeland Security, the Secretary of State, and the Attorney General, provides that

13 “determinations and rulings by the Attorney General with respect to all questions of law shall be

14 controlling.” Therefore, once the Attorney General advised the Acting Secretary that DACA

15 was illegal, that ruling became “controlling” upon her. She had no choice other than to end

16 DACA. She had no room to push back with arguments for the program, to weigh litigation risks,

17 or to consider whether DACA recipients warranted fighting for. The ruling of law by the

18 Attorney General, controlling upon her, made all such considerations moot. Therefore, the new

19 spin by government counsel that the decisionmaker here indulged in a litigation risk assessment

20 and, out of caution, chose not to fight for the program in favor of an orderly wind-down is

21 foreclosed by the INA itself. Her wind-down references plainly presuppose that DACA had to

22 end and the only question was how.

23

Nevertheless, this order now indulges government counsel’s new explanation and

24 addresses whether it holds up even if taken as authentic. In that event, two major criticisms can

25 and should be made of the “litigation risk management” rationale.

26

First, even as to the risk in the Fifth Circuit, the administrative record mentions only

27 similarities between DAPA and DACA (and even then only in an exceedingly conclusory way).

28 No mention appears concerning the differences between DAPA and DACA that might have led

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1 to a different result. In addition to the distinctions made above, one powerful consideration

2 should have been the doctrine of laches. Unlike the DAPA challenge filed immediately after

3 DAPA was announced, the threatened DACA challenge by ten states would have come five

4 years after the program began and after hundreds of thousands of young adults had enrolled and

5 entered the workforce. See Abbott Labs., Inc. v. Gardner, 387 U.S. 136, 155 (1967) (adopting

6 laches in APA context); see also Arpaio v. Obama, 27 F. Supp. 3d 185, 210 (D.D.C. 2014),

7 aff’d, 797 F.3d 11 (D.C. Cir. 2015) (noting that even if plaintiff did have standing he could not

8 demonstrate irreparable harm since he waited two years to challenge DACA). Another

9 difference was that DACA was precisely the kind of interstitial program of deferred action

10 seemingly approved even by the Fifth Circuit, Texas, 809 F.3d at 185, given that both sides of

11 the aisle and our two most recent presidents have called for Dreamer legislation. Nor was there

12 any mention of our own circuit’s more recent decision in Brewer II that favored DACA, or of

13 recognition by the district court in the District of Columbia that DACA had, contrary to the

14 Fifth Circuit, involved discretionary denials of DACA relief.

15

Second, if we are to indulge the spin that the decision to end DACA rested on a

16 litigation-management assessment (rather than on a ruling of illegality), then the Acting

17 Secretary committed a serious error. Against the litigation risk the Acting Secretary should

18 have — but did not — weigh DACA’s programmatic objectives as well as the reliance interests

19 of DACA recipients. Encino Motorcars, LLC v. Navarro, — U.S. —, 136 S. Ct. 2117, 2126–27

20 (2016). This responsibility lay with the Acting Secretary, not the Attorney General. That is,

21 once the Acting Secretary was informed of the supposed litigation risk, it remained her

22 responsibility to balance it against competing policy considerations. It remained her

23 responsibility to recognize the litigation risk, yet still ask whether the program was worth

24 fighting for. The administrative record is utterly silent in this regard.

25

The agency reversed over five years of DHS policy, did so only one day after the

26 Attorney General’s letter, and did so just three months after Secretary Kelly had continued the

27 program (despite the Fifth Circuit’s decision and affirmance). The Acting Secretary failed to

28 provide a “reasoned explanation” as to why she was “disregarding facts and circumstances

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1 which underlay or were engendered by the prior policy.” See F.C.C. v. Fox Television Stations,

2 Inc., 556 U.S. 502, 516 (2009).

3

Encino Motorcars seems very close on point. There, the Supreme Court addressed the

4 Department of Labor’s reversal of an interpretive regulation construing the Fair Labor Standard

5 Act’s minimum wage and overtime provisions for car dealership employees. Our court of

6 appeals gave Chevron deference to the new interpretation. The Supreme Court reversed.

7 In determining whether the regulation was “procedurally defective” — and accordingly whether

8 the agency’s regulation warranted Chevron deference — the Supreme Court evaluated whether

9 the agency had given adequate reasons for its decision to reverse course. Encino Motorcars,

10 136 S. Ct. at 2125 (citing Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43). The Supreme Court

11 explained (at page 2126) that while agencies are free to change their existing policies, they must

12 provide a reasoned explanation for a change (quotes and citations omitted):

13

In explaining its changed position, an agency must also be

cognizant that longstanding policies may have engendered serious

14

reliance interests that must be taken into account. In such cases

it is not that further justification is demanded by the mere fact

15

of policy change; but that a reasoned explanation is needed for

disregarding facts and circumstances that underlay or were

16

engendered by the prior policy. It follows that an unexplained

inconsistency in agency policy is a reason for holding an

17

interpretation to be an arbitrary and capricious change from agency

practice.

18

Because the agency “gave almost no reason at all” for its change in position, the Supreme Court

19

concluded that the agency had failed to provide the sort of reasoned explanation required in light

20

of the “significant reliance issues involved.” Id. at 2126–27.

21

So too here.

22

As there, the agency here reversed its interpretation of its statutory authority. As there,

23

the administrative record here includes no analysis of the “significant reliance issues involved.”

24

The parallel is striking. In terminating DACA, the administrative record failed to address the

25

689,800 young people who had come to rely on DACA to live and to work in this country.

26

These individuals had submitted substantial personal identifying information to the government,

27

paid hefty fees, and planned their lives according to the dictates of DACA. The administrative

28

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1 record includes no consideration to the disruption a rescission would have on the lives of DACA

2 recipients, let alone their families, employers and employees, schools and communities.17

3

Ironically, government counsel now cite material outside of the administrative record in

4 an attempt to show the Acting Secretary considered the plight of DACA recipients (Dkt. 204 at

5 10, 12, 19–20). This press release came after the fact and was not part of the administrative

6 record, and therefore cannot now rescue the agency. In that respect, Cal. Pub. Util. Comm’n,

7 No. 16-70481 at 17 n.4 is analogous. There, our court appeals refused to consider an agency’s

8 position which was not advanced in connection with the decision under review but, rather, was

9 offered for the first time afterwards.

10

Defendants next argue that because no statute here dictated the factors for an agency to

11 consider in granting or rescinding deferred action, the agency need not have given weight to the

12 benefits of the DACA program or the harm that would be caused to its recipients upon its

13 rescission. The Supreme Court has recognized, however, that “[c]onsideration of cost reflects

14 the understanding that reasonable regulation ordinarily requires paying attention to the

15 advantages and the disadvantages of agency decision.” Michigan v. EPA, — U.S. —, 135 S. Ct.

16 2699, 2707 (2015). While defendants attempt to distinguish Michigan on the ground that the

17 text of the statute required regulation there to be “appropriate and necessary,” they ignore that a

18 change in agency policy requires the agency to have “good reasons for it.” Fox TV Stations,

19 Inc., 556 U.S. at 515.

20

Defendants, of course, are correct that when an agency reverses policy it “need not

21 demonstrate to a court’s satisfaction that the reasons for the new policy are better than the

22 reasons for the old one.” Ibid. Where, however, an agency abruptly changes course and

23 terminates a program on which so many people rely, the APA requires “a more detailed

24 justification.” Ibid. Indeed, “[i]t would be arbitrary and capricious to ignore such matters.”

25 Ibid. In such cases, “it is not that further justification is demanded by the mere fact of policy

26 change; but that a reasoned explanation is needed for disregarding facts and circumstances that

27
17 Here, perhaps in light of Encino Motors, the government does not argue that Chevron deference
28 should be afforded to the Attorney General’s legal conclusion that DACA exceeded the agency’s authority.

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1 underlay or were engendered by the prior policy.” Id. at 515–16. Defendants’ attempt to portray

2 DACA as a program that did not generate reliance interests is unconvincing. As plaintiffs’

3 evidence shows, DACA recipients, their employers, their colleges, and their communities all

4 developed expectations based on the possibility that DACA recipients could renew their deferred

5 action and work authorizations for additional two-year periods.

6

In sum, government counsel’s alternative spin on the administrative record is just a post

7 hoc rationalization. But, even if it had been the actual rationale, it was arbitrary, capricious, and

8 an abuse of discretion under Encino Motors.

9

*

*

*

10

Accordingly, plaintiffs have shown that they are likely to succeed on the merits of their

11 claim that the rescission was arbitrary and capricious and must be set aside under the APA.

12

B. Irreparable Harm.

13

Plaintiffs have clearly demonstrated that they are likely to suffer serious irreparable harm

14 absent an injunction. Before DACA, Individual Plaintiffs, brought to America as children, faced

15 a tough set of life and career choices turning on the comparative probabilities of being deported

16 versus remaining here. DACA gave them a more tolerable set of choices, including joining the

17 mainstream workforce. Now, absent an injunction, they will slide back to the pre-DACA era and

18 associated hardship.

19

The University of California and other entity plaintiffs have also demonstrated that they

20 face irreparable harm as they begin to lose valuable students and employees in whom they have

21 invested, and that loss of DACA recipients from the workforce will have a detrimental impact on

22 their organization interests, economic output, public health, and safety.

23

Our court of appeals recently confirmed that “prolonged separation from family

24 members” and “constraints to recruiting and retaining faculty members to foster diversity and

25 quality within the University community” are harms which are not compensable with monetary

26 damages and therefore weigh in favor of finding irreparable harm. Hawaii v. Trump,

27 No. 17-17168, 2017 WL 6554184, at *22 (9th Cir. Dec. 22, 2017). These showings accordingly

28

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1 demonstrate that preliminary relief is appropriate. Ibid.; see also Valle del Sol Inc. v. Whiting,

2 732 F.3d 1006, 1029 (9th Cir. 2013).

3

Defendants do not dispute that plaintiffs are likely to suffer such harms. Rather, they

4 argue that these harms will not happen before the phase-out begins on March 5, 2018, the date

5 by which the undersigned judge had wanted to present a final record and final decision for

6 appellate review.

7

Delays in this case, however, have made it impossible to send a final judgment to our

8 court of appeals by March 5. To take only one example, it would be unfair to reach a conclusion

9 without giving plaintiffs an opportunity to examine the complete administrative record.

10 Government counsel, however, succeeded in obtaining an order from the Supreme Court

11 postponing proceedings on completing the administrative record until after ruling on its

12 FRCP 12(b)(1) motion to dismiss. As a result, we have yet to receive a complete administrative

13 record. Although plaintiffs are likely to prevail on even the truncated administrative record, as

14 set forth above, our appellate court might disagree with that conclusion or the agency might seek

15 to cure the flaws in its process via a fresh agency action. Plaintiffs are entitled to learn of all

16 flaws, if any more there be, lurking in the whole record. One such possibility suggested by

17 plaintiffs is that the rescission was contrived to give the administration a bargaining chip to

18 demand funding for a border wall in exchange for reviving DACA. A presidential tweet after

19 our hearing gives credence to this claim. Another possibility raised by plaintiffs is racial animus.

20 These theories deserve the benefit of the full administrative record. It will be impossible to

21 litigate this case to a fair and final conclusion before March 5.18

22

23

24

25
18 On December 29, 2017, President Trump tweeted: “The Democrats have been told, and fully
26 understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an
END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our
27 Country at all cost!” (Dkt. No. 227-2). Plaintiffs separately request judicial notice of this tweet. Defendants
object to judicial notice on various relevancy grounds, but do not argue that it is not properly subject to judicial
28 notice under FRE 201 (Dkt. Nos. 227, 230). Plaintiffs’ request is accordingly GRANTED.

44

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1

C. Balance of Equities and Public Interest.

2

On provisional relief motions, district judges must consider whether (or not) such relief

3 would be in the public interest. On this point, we seem to be in the unusual position wherein the

4 ultimate authority over the agency, the Chief Executive, publicly favors the very program the

5 agency has ended. In September, President Trump stated his support for DACA, tweeting:

6 “Does anybody really want to throw out good, educated and accomplished young people who

7 have jobs, some serving in the military? Really! . . . .” He has also called upon Congress to

8 ratify DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama

9 Administration was unable to do). If they can’t, I will revisit this issue!” (App. 1958).

10

For the reasons DACA was instituted, and for the reasons tweeted by President Trump,

11 this order finds that the public interest will be served by DACA’s continuation (on the conditions

12 and exceptions set out below). Beginning March 5, absent an injunction, one thousand

13 individuals per day, on average, will lose their DACA protection. The rescission will result in

14 hundreds of thousands of individuals losing their work authorizations and deferred action status.

15 This would tear authorized workers from our nation’s economy and would prejudice their being

16 able to support themselves and their families, not to mention paying taxes to support our nation.

17 Too, authorized workers will lose the benefit of their employer-provided healthcare plans and

18 thus place a greater burden on emergency healthcare services.

19

On provisional relief motions, district judges must also weigh the balance of hardships

20 flowing from a grant versus denial of provisional relief. The hardship to plaintiffs need not be

21 repeated. The only hardship raised by defendants is interference with the agency’s judgment on

22 how best to allocate its resources in keeping our homeland secure, as well as its judgment in

23 phasing out DACA. Significantly, however, the agency’s judgment here was not based on a

24 policy change. It was based on a mistake of law. If the instant order is correct that DACA fell

25 within the statutory and constitutional powers of the Executive Branch, then a policy supported

26

27

28

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1 as high up as our Chief Executive has been the victim of a colossal blunder. A preliminary

2 injunction will set that right without imposing any policy unwanted by the Executive Branch.19

3

D. Scope of Provisional Relief.

4

For the foregoing reasons, defendants ARE HEREBY ORDERED AND ENJOINED, pending

5 final judgment herein or other order, to maintain the DACA program on a nationwide basis on

6 the same terms and conditions as were in effect before the rescission on September 5, 2017,

7 including allowing DACA enrollees to renew their enrollments, with the exceptions (1) that new

8 applications from applicants who have never before received deferred action need not be

9 processed; (2) that the advance parole feature need not be continued for the time being for

10 anyone; and (3) that defendants may take administrative steps to make sure fair discretion is

11 exercised on an individualized basis for each renewal application.

12

Nothing in this order prohibits the agency from proceeding to remove any individual,

13 including any DACA enrollee, who it determines poses a risk to national security or public

14 safety, or otherwise deserves, in its judgment, to be removed. Nor does this order bar the agency

15 from granting advance parole in individual cases it finds deserving, or from granting deferred

16 action to new individuals on an ad hoc basis.

17

The agency shall post reasonable public notice that it will resume receiving DACA

18 renewal applications and prescribe a process consistent with this order. The agency shall keep

19 records of its actions on all DACA-related applications and provide summary reports to the

20 Court (and counsel) on the first business day of each quarter.20

21

22

19 If a likelihood of irreparable injury is shown and an injunction is in the public interest, a preliminary

injunction is also appropriate when a plaintiff demonstrates that serious questions going to the merits are raised
23 and the balance of hardships tips sharply in the plaintiff’s favor. Alliance for the Wild Rockies v. Cottrell,

632 F.3d 1127, 1134–35 (9th Cir. 2011). Because plaintiffs have clearly demonstrated a likelihood of
24 irreparable injury and that the balance of hardships tips sharply in plaintiffs’ favor, preliminary relief would also

be appropriate under this alternative standard of review.
25

20 A mandatory injunction orders a responsible party to take action, while “[a] prohibitory injunction
26 prohibits a party from taking action and preserves the status quo pending a determination of the action on the

merits.” Brewer I, 757 F.3d at 1060. The relevant status quo is the legally relevant relationship between the
27 parties before the controversy arose. Id. at 1061. Here, plaintiffs contest the validity of defendants’ rescission

of DACA, the status quo before which was that DACA was fully implemented. Accordingly, plaintiffs’
28 requested preliminary injunction is not mandatory. But even if it were, plaintiffs have demonstrated that

sufficiently serious irreparable harm would result to warrant even a mandatory injunction.

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1

By way of explanation, while plaintiffs have demonstrated that DACA recipients,

2 as well as their families, schools, employers, and communities, are likely to suffer substantial,

3 irreparable harm as a result of the rescission, they have not made a comparable showing as to

4 individuals who have never applied for or obtained DACA.

5

This order will not require advance parole. Unlike the widespread harm to plaintiffs and

6 our economy that would result were the 689,800 DACA enrollees to lose their ability to work in

7 this country, plaintiffs have not demonstrated that comparable harm will occur as a result of

8 DACA recipients’ inability to travel abroad. True, Individual Plaintiffs Jirayut Latthivongskorn

9 and Norma Ramirez describe professional disadvantages that may result if they are unable to

10 travel internationally. These, however, do not amount to hardships justifying a provisional

11 injunction requiring DHS to resume accepting applications for advance parole. However, as

12 stated, nothing in this order would bar individuals from asking for such agency relief or bar the

13 agency from granting it in deserving cases.

14

With respect to geographical scope, this order finds a nationwide injunction is

15 appropriate. Our country has a strong interest in the uniform application of immigration law

16 and policy. Plaintiffs have established injury that reaches beyond the geographical bounds

17 of the Northern District of California. The problem affects every state and territory of the

18 United States.

19

In February 2017, our court of appeals considered this very issue in Washington v.

20 Trump, 847 F.3d 1151, 1167 (9th Cir. 2017), and upheld a nationwide injunction imposed by a

21 single district court, observing that limiting the geographic scope of an injunction on an

22 immigration enforcement policy “would run afoul of the constitutional and statutory

23 requirements for uniform immigration law and policy” and that, as here, “the government ha[d]

24 not proposed a workable alternative.” Indeed, the Fifth Circuit reached the same conclusion in

25 determining the appropriate scope of an injunction over DAPA, Texas, 809 F.3d at 187–88,

26

27

28

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1 holding that uniform application of the immigration laws justified a nationwide injunction. So

2 too here.21

3

Limiting relief to the States in suit or the Individual Plaintiffs would result in

4 administrative confusion and simply provoke many thousands of individual lawsuits all over the

5 country. The most practical relief is to maintain DACA in the same manner to which the agency

6 and recipients are accustomed, subject to the exceptions above noted.

7

CONCLUSION

8

Defendants’ motion to dismiss under FRCP 12(b)(1) is GRANTED IN PART only to the

9 limited extent stated above and is otherwise DENIED. Maine and Minnesota’s APA claims are

10 hereby DISMISSED. Maine or Minnesota may seek leave to amend and will have 21 CALENDAR

11 DAYS from the date of this order to file a motion, noticed on the normal 35-day track, for leave to

12 file an amended complaint. A proposed amended complaint must be appended to the motion and

13 plaintiffs must plead their best case. Any such motion should clearly explain how the

14 amendments to the complaint cure the deficiencies identified herein. To the extent stated above,

15 plaintiffs’ motion for provisional relief is GRANTED. A separate order will address defendants’

16 motion to dismiss pursuant to FRCP 12(b)(6).

17

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

18

Pursuant to our court of appeals’ order dated December 21, 2017, the district court

19 hereby certifies for interlocutory appeal the issues decided herein (i) whether (or not) the

20 rescission of DACA is unreviewable as committed to agency discretion or by reason of 8 U.S.C.

21 § 1252(g), (ii) whether (or not) plaintiffs have standing, and (iii) all other questions interposed

22 by the government in its motion to dismiss under FRCP 12(b)(1). This order finds that these are

23 controlling questions of law as to which there is substantial ground for difference of opinion and

24

25

21 Oddly, the government’s contrary authority is Bresgal v. Brock, 843 F.2d 1163, 1169–70 (9th Cir.

1987), a decision in which our court of appeals upheld a nationwide injunction and held, “[t]here is no general
26 requirement that an injunction affect only the parties in the suit,” and “nationwide relief in federal district or

circuit court [is permitted] when it is appropriate.” Bresgal merely observed that “[w]here relief can be
27 structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown.” Id. at 1170.

Here, it cannot be so structured. Nor are any of the government’s other authorities, which restate the general
28 proposition that a remedy should match the injury alleged, see, e.g., Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645, 1650 (2017), to the contrary.

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1 that their resolution by the court of appeals will materially advance the litigation. This order

2 realizes that the same issues are reviewable upon appeal of this injunction. Nevertheless, out of

3 caution and to avoid any problem concerning scope of review, the district court so certifies.

4

5

IT IS SO ORDERED.

6

7 Dated: January 9, 2018. 8

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

9

10

11

12

13

14

15

16

17

18

19

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22

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27

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1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

14

v.

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA No. C 17-05813 WHA

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and KIRSTJEN

16

NIELSEN, in her official capacity as Secretary of the Department of Homeland

17 Security,

ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6)

18

Defendants.

/

19

20

INTRODUCTION

21

In these challenges to the government’s rescission of the Deferred Action for Childhood

22 Arrivals program, the government moves to dismiss plaintiffs’ complaints for failure to state a

23 claim. For the reasons discussed below, the motion is GRANTED IN PART and DENIED IN PART.

24

STATEMENT

25

This order incorporates the statement set forth in the order dated January 9, 2018,

26 largely denying dismissal under FRCP 12(b)(1) and largely granting plaintiffs’ motion for

27 provisional relief (Dkt. No. 234). This order, however, addresses a separate motion by the

28 government to dismiss all claims for failure to state a claim for relief under FRCP 12(b)(6).

This order sustains three claims for relief but finds that the rest fall short.

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1

ANALYSIS

2

1. APA CLAIMS UNDER 5 U.S.C. § 706(2)(A).

3

For the same reasons that plaintiffs are likely to succeed on their claim that the

4 rescission of DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in

5 accordance with law” in violation of the Administrative Procedure Act, as explained in the

6 January 9 order, the government’s motion to dismiss plaintiffs’ APA claims under 5 U.S.C. §

7 706(2)(A) is DENIED.

8

2. APA CLAIMS UNDER 5 U.S.C. § 706(2)(D).

9

The original DACA program began in 2012 without any notice or opportunity for public

10 comment. Likewise, the rescission in question ended DACA without notice or opportunity for

11 public comment. One issue now presented is whether the rescission is invalid for having been

12 carried out without notice-and-comment procedures.

13

Under the APA, an agency action must be set aside if it was done “without observance

14 of procedure required by law.” 5 U.S.C. § 706(2)(D). An agency is required to follow

15 prescribed notice-and-comment procedures before promulgating certain rules. 5 U.S.C. § 553.

16 The Regulatory Flexibility Act further requires that notice-and-comment rulemaking include

17 an assessment of the impact on small entities. 5 U.S.C. § 604(a). These requirements do not

18 apply, however, to general statements of policy. 5 U.S.C. § 553(b)(A).

19

A general statement of policy “advis[es] the public prospectively of the manner in which

20 the agency proposes to exercise a discretionary power.” Mada-Luna v. Fitzpatrick, 813 F.2d

21 1006, 1012–13 (9th Cir. 1987). Such policies also “serve to educate and provide direction to

22 the agency’s personnel in the field, who are required to implement its policies and exercise its

23 discretionary power in specific cases.” Id. at 1013 (quotes and citations omitted). “The critical

24 factor” in determining whether a directive constitutes a general statement of policy is “the

25 extent to which the challenged [directive] leaves the agency, or its implementing official, free to

26 exercise discretion to follow, or not to follow, the [announced] policy in an individual case.”

27 Ibid. Thus, to qualify as a statement of policy two requirements must be satisfied: (1) the

28 policy operates only prospectively, and (2) the policy does “not establish a binding norm,” and

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1 is not “finally determinative of the issues or rights to which [it] address[es],” but instead leaves

2 officials “free to consider the individual facts in the various cases that arise.” Id. at 1014

3 (quotes and citations omitted). Under this standard, the rescission memorandum is a general

4 statement of policy.

5

This order rejects plaintiffs’ contention that the rescission could only be done through

6 notice and comment. For the same reasons that the promulgation of DACA needed no notice

7 and comment, its rescission needed no notice and comment.

8

Almost this exact problem was addressed in Mada-Luna. There, our court of appeals

9 held that the repeal of an INS policy under which applicants could seek deferred action was not

10 subject to notice and comment. It rejected the argument that the repeal could not constitute a

11 general statement of policy because it diminished the likelihood of receiving deferred action for

12 a class of individuals. Id. at 1016. Rather, because the original policy allowed for discretion

13 and failed to establish a “binding norm,” the repeal of that policy also did not require notice and

14 comment. Id. at 1017. So too here. The DACA program allowed but did not require the

15 agency to grant deferred action, and upon separate application, travel authorization, on a case-

16 by-case basis at the agency’s discretion. Therefore, neither its promulgation nor its rescission

17 required notice and comment.

18

Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), on which plaintiffs heavily rely,

19 does not warrant the conclusion that the rescission policy is a substantive rule. Parco also

20 addressed whether the rescission of an INS policy required notice and comment. Notably, the

21 government in Parco stipulated that the policy’s precipitous rescission was the sole reason for

22 denial of the plaintiff’s application for immigration relief. Id. at 984. The district court

23 determined that the repeal therefore left no discretion, explaining that “discretion” was stripped

24 of all meaning where “one contends that under a certain regulation ‘discretion’ was exercised

25 favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in

26 each such case.” Ibid. Here, by contrast, plaintiffs do not allege that all deferred action

27 applications under DACA were approved but now, after the rescission, all requests for deferred

28 action will be denied.

3

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United States District Court For the Northern District of California

1

Plaintiffs argue that the rescission memorandum is more than a policy because it creates

2 a blanket prohibition against granting deferred action to DACA applicants. Plaintiffs are

3 correct that the rescission policy contains mandatory language on its face. It is also true that the

4 rescission memorandum categorically eliminates advance parole for DACA recipients.

5 This comes closer to resembling a substantive rule. However, it remains the case that because

6 the original promulgation of the discretionary program did not require notice and comment,

7 a return to the status quo ante also does not require notice and comment. Mada-Luna, 813 F.2d

8 at 1017.

9

Defendants’ motion to dismiss plaintiffs’ claims pursuant to Section 706(2)(D) of the

10 APA and the Regulatory Flexibility Act is accordingly GRANTED.

11

3.

DUE PROCESS CLAIMS.

12

To assert a due process claim, a plaintiff must first show that he or she has an interest in

13 liberty or property protected by the Constitution. See Bd. of Regents v. Roth, 408 U.S. 564, 569

14 (1972). Plaintiffs fail to make the threshold showing that they have a protected interest in the

15 continuation of DACA and, accordingly, their due process claims based on the rescission must

16 be dismissed. Plaintiffs have adequately alleged, however, that the agency’s changes to its

17 information-sharing policy are “fundamentally unfair.”

18

A. Deferred Action.

19

Because discretionary immigration relief “is a privilege created by Congress, denial of

20 such relief cannot violate a substantive interest protected by the Due Process clause.” Munoz v.

21 Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (citing INS v. Yang, 519 U.S. 26, 30 (1996)).

22 Moreover, “aliens have no fundamental right to discretionary relief from removal” for purposes

23 of due process. Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004). Our court of

24 appeals has accordingly held there is no protected interest in temporary parole, since such relief

25 is “entirely within the discretion of the Attorney General.” Kwai Fun Wong v. United States,

26 373 F.3d 952, 967–68 (9th Cir. 2004). Nor did an INS policy which allowed the agency to

27 recommend deferred action as “an act of administrative choice” create substantive liberty

28 interests. Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985). These authorities

4

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United States District Court For the Northern District of California

1 foreclose any argument that plaintiffs have a protected interest in continued deferred action or

2 advance parole under DACA.1

3

Plaintiffs reply that even absent a protected interest in the initial, discretionary grant of

4 deferred action, there is a protected interest in the renewal of DACA and its associated benefits.

5 Yet a benefit is not a “protected entitlement” where “government officials may grant or deny it

6 in their discretion.” Castle Rock, 545 U.S. 748, 756 (2005). Rather, an individual has a

7 protected property right in public benefits where the rules conferring those benefits “greatly

8 restrict the discretion” of the people who administer them. Nozzi v. Hous. Auth. of City of Los

9 Angeles, 806 F.3d 1178, 1191 (9th Cir. 2015). Plaintiffs’ authorities confirm that the same

10 principle applies in the context of renewing or retaining existing benefits. Wedges/Ledges of

11 California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 64 (9th Cir. 1994); Stauch v. City of

12 Columbia Heights, 212 F.3d 425, 430 (8th Cir. 2000). No such limitations on agency discretion

13 are alleged to have applied under DACA. Rather, the USCIS DACA FAQs referenced by

14 plaintiffs in their complaints make clear that “USCIS retain[ed] the ultimate discretion to

15 determine whether deferred action [was] appropriate in any given case even if the guidelines

16 [were] met” (Garcia Compl. ¶ 24 n.16; Santa Clara Compl. ¶ 58; UC Compl., Exh. B; State

17 Compl., Exh. E).

18

Next, plaintiffs argue that once DACA status was conferred, and recipients organized

19 their lives in reliance on the program’s protections and benefits, they developed interests

20 protected by the Constitution. Plaintiffs’ authorities, however, stand only for the

21 uncontroversial proposition that once in possession of a particular benefit, the alteration,

22 revocation or suspension of that benefit may implicate due process.2 Such a principle has no

23 application where, as here, extant benefits are not impacted by a change in policy. Indeed, there

24 is no dispute that the rescission acts only prospectively. That is, all existing DACA recipients

25
1 Plaintiffs’ attempt to distinguish Romeiro de Silva on the ground that the INS policy there involved
26 “unfettered discretion,” whereas the exercise of prosecutorial discretion under DACA was guided by standard
operating procedures, is unconvincing.
27
2 See Bell v. Burson, 402 U.S. 535, 539 (1971); Gallo v. U.S. Dist. Court For Dist. of Arizona,
28 349 F.3d 1169, 1179 (9th Cir. 2003); Medina v. U.S. Dep’t of Homeland Sec., 2017 WL 5176720, at *9
(W.D. Wash. Nov. 8, 2017).

5

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1 will receive deferred action through the end of their two-year terms. What they will not receive,

2 if the rescission endures, will be DACA renewal, thereafter. For this reason, Ixcot v. Holder,

3 646 F.3d 1202 (9th Cir. 2011), and Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003), which

4 addressed whether amendments to the INA were impermissibly retroactive, do not compel a

5 different result.

6

Plaintiffs contend that the government’s communications with plaintiffs regarding

7 renewals, its operation of the program, and the public promises of government officials

8 “together created an understanding that DACA recipients were entitled to the continued benefits

9 of the program so long as they met the renewal criteria” (Dkt. No. 205 at 29). Plaintiffs are

10 correct, of course, that claims of entitlement can be defined by “rules or mutually explicit

11 understandings.” Perry v. Sindermann, 408 U.S. 593, 601 (1972). Importantly, however, a

12 person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably

13 held, does not create a protected right if that belief is not mutually held by the government.

14 Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1020 (9th Cir. 2011). An agency’s past practice of

15 generally granting a government benefit is also insufficient to establish a legal entitlement.

16 Ibid.

17

This order empathizes with those DACA recipients who have built their lives around

18 the expectation that DACA, and its associated benefits, would continue to be available to them

19 if they played by the rules. That expectation, however, remains insufficient to give rise to a

20 constitutional claim under the Fifth Amendment. Because plaintiffs have failed to allege facts

21 demonstrating a protected interest in DACA’s continuation or the renewal of benefits

22 thereunder, defendants’ motion to dismiss plaintiffs’ due process claims based on the rescission

23 must be GRANTED.

24

B. Information-Sharing Policy.

25

Plaintiffs fare better with their substantive due process claim that DHS allegedly

26 changed its policy with respect to the personal information provided by DACA recipients

27 during the application process. Plaintiffs allege that the government repeatedly represented

28 that information provided by DACA applicants would not be used for immigration enforcement

6

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United States District Court For the Northern District of California

1 purposes absent special circumstances, and that DACA recipients relied on these promises in

2 submitting the extensive personal information needed to meet the program’s requirements.

3

Defendants insist that the agency’s information-sharing policy remains unchanged.

4 On a motion to dismiss, however, the well-pled factual allegations in a complaint must be

5 accepted as true. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.

6 2008). Plaintiffs have clearly alleged that DHS changed its information-sharing policy such

7 that now, rather than affirmatively protecting DACA recipients’ information from disclosure,

8 the government will only refrain from “proactively” providing their information for purposes of

9 immigration enforcement proceedings (Garcia Compl. ¶ 126; Santa Clara Compl. ¶ 58; State

10 Compl. ¶ 122).

11

Plaintiffs have also adequately alleged a “mutually explicit understanding” giving rise

12 to a protected interest in the confidentiality of DACA recipients’ personal information.

13 They allege that throughout DACA’s existence, DHS made affirmative representations as to

14 how this information would (and would not) be used. The policy stated (Garcia Compl. ¶ 126;

15 Santa Clara Compl. ¶ 58; State Compl. ¶ 121 (citing USCIS DACA FAQs)):

16

Information provided in this request is protected from disclosure

to ICE and CBP for the purpose of immigration enforcement

17

proceedings unless the requestor meets the criteria for the issuance

of a Notice to Appear or a referral to ICE under the criteria set

18

forth in USCIS’ Notice to Appear guidance

(www.uscis.gov/NTA). Individuals whose cases are deferred

19

pursuant to DACA will not be referred to ICE. The information

may be shared with national security and law enforcement

20

agencies, including ICE and CBP, for purposes other than removal,

including for assistance in the consideration of DACA, to identify

21

or prevent fraudulent claims, for national security purposes, or for

the investigation or prosecution of a criminal offense. The above

22

information sharing policy covers family members and guardians,

in addition to the requestor. This policy, which may be modified,

23

superseded, or rescinded at any time without notice, is not intended

to, does not, and may not be relied upon to create any right or

24

benefit, substantive or procedural, enforceable by law by any party

in any administrative, civil, or criminal matter.

25

The language contained in the policy’s caveat, that it could “be modified, superseded,

26

or rescinded at any time,” is ambiguous. One reading advanced by the government is that this

27

caveat allows the agency to change how it treats information already received from DACA

28

applicants. Another reading, however, is that it simply allows the government to change its

7

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United States District Court For the Northern District of California

1 policy in connection with future applicants. Secretary of Homeland Security Jeh Johnson’s

2 December 2016 letter to United States Representative Judy Chu supports the later reading.

3 He stated that, “[s]ince DACA was announced in 2012, DHS has consistently made clear that

4 information provided by applicants . . . will not later be used for immigration enforcement

5 purposes except where it is independently determined that a case involves a national security

6 or public safety threat, criminal activity, fraud, or limited other circumstances where issuance

7 of a notice to appear is required by law” (Garcia Compl. ¶¶ 36–37; State Compl. ¶ 98, Exh. F).

8 This ambiguity presents a question of fact that cannot be resolved on the pleadings.

9

Taken as true at this stage, as must be done on a FRCP 12(b)(6) motion, plaintiffs’

10 allegations regarding the government’s broken promise as to how DACA recipients’ personal

11 information will be used — and its potentially profound consequences — “shock[s] the

12 conscience and offend[s] the community’s sense of fair play and decency.” Marsh v. County of

13 San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (quotes and citations omitted). Defendants’

14 motion to dismiss plaintiffs’ due process claims based on changes to the government’s

15 information-use policy is DENIED.

16

4.

EQUITABLE ESTOPPEL.

17

Plaintiffs bring claims for equitable estoppel, arguing that the government should not be

18 permitted to terminate DACA or use the information collected from applicants for immigration

19 enforcement purposes.

20

Defendants first contend that plaintiffs’ equitable estoppel claims fail because there is no

21 recognized claim for relief based on estoppel. The Supreme Court has refused to adopt,

22 however, “a flat rule that estoppel may not in any circumstances run against the Government,”

23 noting that “the public interest in ensuring that the Government can enforce the law free from

24 estoppel might be outweighed by the countervailing interest of citizens in some minimum

25 standard of decency, honor, and reliability in their dealings with their Government.” Heckler v.

26 Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 60–61 (1984). Moreover, our court of

27 appeals has addressed such claims on the merits, and has held that the government may be

28

8

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United States District Court For the Northern District of California

1 subject to equitable estoppel if it has engaged in “affirmative misconduct.” Watkins v. U.S.

2 Army, 875 F.2d 699, 706–07 (9th Cir. 1989).

3

To state an equitable estoppel claim against the government, a party must show

4 (1) that the government engaged in “affirmative conduct going beyond mere negligence”; and

5 (2) “the government’s wrongful act will cause a serious injustice, and the public’s interest will

6 not suffer undue damage” if the requested relief is granted. Id. at 707. “Neither the failure to

7 inform an individual of his or her legal rights nor the negligent provision of misinformation

8 constitute affirmative misconduct.” Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000).

9 Moreover, our court of appeals has defined “affirmative misconduct” to mean a “deliberate lie”

10 or “a pattern of false promises.” Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001).

11 The allegations in the complaints fail to meet this standard, inasmuch as no affirmative instances

12 of misrepresentation or concealment have been plausibly alleged.

13

Plaintiffs are correct that estoppel “does not require that the government intend to

14 mislead a party,” Watkins, 875 F.2d 707, but plaintiffs fail to explain how contradictory policies

15 under two different administrations add up to “affirmative misconduct beyond mere negligence.”

16 Plaintiffs fail to allege, for example, that the government’s past statements regarding DACA’s

17 legality were a “deliberate lie” or more than mere negligence. Nor have plaintiffs pleaded that

18 the alleged change in the agency’s information-use policy was the result of an affirmative

19 misrepresentation. Rather, they have merely alleged a change in policy. Under plaintiffs’ theory

20 new administrations would almost never be able to change prior policies because someone could

21 always assert reliance upon the old policy. Defendants’ motion to dismiss plaintiffs’ equitable

22 estoppel claims is GRANTED.

23

5.

EQUAL PROTECTION CLAIMS.

24

To state an equal protection claim plaintiffs must show that the rescission was motivated

25 by a discriminatory purpose. Arce v. Douglas, 793 F.3d 968, 977 (2015) (citing Vill. of

26 Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)). Determining

27 whether discrimination is a motivating factor “demands a sensitive inquiry into such

28 circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at

9

Case 3:17-cv-05329-WHA Document 71 Filed 01/12/18 Page 10 of 14

United States District Court For the Northern District of California

1 266. A plaintiff need not show that the discriminatory purpose was the sole purpose of the

2 challenged action, but only that it was a “motivating factor.” Ibid. In analyzing whether a

3 facially-neutral policy was motivated by a discriminatory purpose, district courts must consider

4 factors such as whether the policy creates a disparate impact, the historical background and

5 sequence of events leading up to the decision, and any relevant legislative or administrative

6 history. Id. at 266–68.3

7

First, Individual Plaintiffs and Santa Clara clearly allege that the rescission had a

8 disproportionate impact on Latinos and Mexican nationals. Indeed, such individuals account

9 for 93 percent of DACA recipients (Garcia Compl. ¶¶ 100, 151; Santa Clara Compl. ¶¶ 9, 75).

10 Defendants reply that this disparate impact is an accident of geography, not evidence of

11 discrimination. True, a disparate impact of a facially-neutral rule, standing alone, cannot

12 establish discriminatory intent. See Washington v. Davis, 426 U.S. 229, 242 (1976). Individual

13 Plaintiffs and Santa Clara, however, have alleged a discriminatory impact only as a starting

14 point. They also allege a history of bias leading up to the rescission of DACA in the form of

15 campaign statements and other public comments by President Trump, as next discussed.4

16

Second, plaintiffs allege that President Trump has, on multiple occasions since he

17 announced his presidential campaign, expressed racial animus towards Latinos and Mexicans.

18 When President Trump announced his candidacy on June 16, 2015, for example, he

19 characterized Mexicans as criminals, rapists, and “people that have lots of problems.” Three

20 days later, President Trump tweeted that “[d]ruggies, drug dealers, rapists and killers are coming

21 across the southern border,” and asked, “When will the U.S. get smart and stop this travesty?”

22

23

3 The Supreme Court’s decision in United States v. Armstrong, 517 U.S. 456 (1996), which addressed

the showing necessary for a defendant to be entitled to discovery on a selective-prosecution claim, has no
24 application here. Plaintiffs’ claims cannot fairly be characterized as selective-prosecution claims because they

do not “implicate the Attorney General’s prosecutorial discretion — that is, in this context, his discretion to
25 choose to deport one person rather than another among those who are illegally in the country.” Kwai Fun

Wong, 373 F.3d at 970. Rather, plaintiffs allege that the agency’s decision to end a nationwide deferred action
26 program was motivated by racial animus towards a protected class.

27

4 The City of San Jose’s equal protection claim falls a little short. Rather than alleging a disparate

impact on a protected class, it alleges only that “[d]efendants’ actions target individuals for discriminatory
28 treatment based on their national origin, without lawful justification” (San Jose Compl. ¶ 54). For this reason,

defendants’ motion to dismiss San Jose’s equal protection claim is GRANTED.

10

Case 3:17-cv-05329-WHA Document 71 Filed 01/12/18 Page 11 of 14

United States District Court For the Northern District of California

1 During the first Republican presidential debate, President Trump claimed that the Mexican

2 government “send[s] the bad ones over because they don’t want to pay for them.” And in

3 August 2017, he referred to undocumented immigrants as “animals” who are responsible for “the

4 drugs, the gangs, the cartels, the crisis of smuggling and trafficking, MS 13” (Garcia Compl. ¶¶

5 102–13, 124; Santa Clara Compl. ¶¶ 75–76).

6

Circumstantial evidence of intent, including statements by a decisionmaker, may be

7 considered in evaluating whether government action was motivated by a discriminatory purpose.

8 Arlington Heights, 429 U.S. at 266–68. These statements were not about the rescission (which

9 came later) but they still have relevance to show racial animus against people south of our

10 border.

11

Should campaign rhetoric be admissible to undermine later agency action by the victors?

12 This order recognizes that such admissibility can readily lead to mischief in challenging the

13 policies of a new administration. We should proceed with caution and give wide berth to the

14 democratic process. Yet are clear cut indications of racial prejudice on the campaign trail to be

15 forgotten altogether?

16

Our court of appeals recently confirmed that “evidence of purpose beyond the face of the

17 challenged law may be considered in evaluating Establishment and Equal Protection Clause

18 claims.” Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017). Washington found that

19 President Trump’s statements regarding a “Muslim ban” raised “serious allegations and

20 presented significant constitutional questions,” although it ultimately reserved consideration of

21 plaintiffs’ equal protection claim. Id. at 1167–68. Citing to Washington, at least two district

22 courts have since considered President Trump’s campaign statements in finding a likelihood of

23 success on Establishment Clause claims. See, e.g., Aziz v. Trump, 234 F. Supp. 3d 724, 736

24 (E.D. Va. 2017) (Judge Leonie Brinkema); Hawai’i v. Trump, 245 F. Supp. 3d 1227, 1236 (D.

25 Haw. 2017) (Judge Derrick Watson). This order will follow these decisions and hold that, at

26 least at the pleading stage, campaign rhetoric so closely tied to the challenged executive action is

27 admissible to show racial animus.

28

11

Case 3:17-cv-05329-WHA Document 71 Filed 01/12/18 Page 12 of 14

United States District Court For the Northern District of California

1

Third, a final consideration is the unusual history behind the rescission. DACA received

2 reaffirmation by the agency as recently as three months before the rescission, only to be

3 hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality).

4 This strange about-face, done at lightning speed, suggests that the normal care and consideration

5 within the agency was bypassed (Garcia Compl. ¶ 154; Santa Clara Compl. ¶¶ 8, 77).

6

That President Trump has at other times shown support for DACA recipients cannot wipe

7 the slate clean as a matter of law at the pleading stage. Although the government argues that

8 these allegations fail to suggest that the Acting Secretary (as the purported decisionmaker)

9 terminated DACA due to racial animus, plaintiffs have alleged that it was President Trump

10 himself who, in line with his campaign rhetoric, directed the decision to end the program

11 (Garcia Compl. ¶¶ 11, 124; Santa Clara Compl. ¶ 21).

12

Construed in the light most favorable to plaintiffs, as must be done at the pleading stage,

13 these allegations raise a plausible inference that racial animus towards Mexicans and Latinos

14 was a motivating factor in the decision to end DACA. The fact-intensive inquiry needed to

15 determine whether defendants acted with discriminatory intent cannot be made on the pleadings.

16 Accordingly, defendants’ motion to dismiss Santa Clara’s and Individual Plaintiffs’ equal

17 protection claims must be DENIED.

18

State Plaintiffs allege an equal protection claim on the alternative theory that the

19 rescission “violates fundamental conceptions of justice by depriving DACA grantees, as a class,

20 of their substantial interests in pursuing a livelihood to support themselves and further their

21 education” (State Compl. ¶¶ 172–77). Plaintiffs do not respond to the government’s arguments

22 that this theory fails to state a claim under FRCP 12(b)(6). Defendants’ motion to dismiss State

23 Plaintiffs’ equal protection claim is accordingly GRANTED.

24

6.

DECLARATORY RELIEF.

25

Defendants move to dismiss the Individual Plaintiffs’ claim for declaratory relief.

26 Individual Plaintiffs’ request for declaratory relief is also contained in their prayer for relief and,

27 accordingly, the standalone claim is superfluous. Defendants’ motion to dismiss this claim is

28 GRANTED.

12

Case 3:17-cv-05329-WHA Document 71 Filed 01/12/18 Page 13 of 14

United States District Court For the Northern District of California

1

CONCLUSION

2

Consistent with the foregoing, defendants’ motion to dismiss is GRANTED IN PART and

3 DENIED IN PART as follows:

4

•

Plaintiffs’ APA claims are sustained, except for the following: Garcia

5

Complaint – Fifth Claim for Relief; UC Complaint – Second Claim for

6

Relief; State Complaint – Second Claim for Relief; San Jose Complaint

7

– Second Claim for Relief.

8

•

Plaintiffs’ Regulatory Flexibility Act claims are dismissed.

9

•

Plaintiffs’ due process claims are sustained, except for the following:

10

UC Complaint – Third Claim for Relief; Garcia Complaint –

11

First Claim for Relief (to the extent based on the rescission);

12

Santa Clara Complaint – First Claim for Relief (to the extent based on

13

the rescission).

14

•

Plaintiffs’ equal protection claims are sustained, except for the

15

following: State Complaint – Sixth Claim for Relief; San Jose

16

Complaint – First Claim for Relief.

17

•

Plaintiffs’ equitable estoppel claims are dismissed.

18

•

Individual Plaintiffs’ declaratory relief claim is dismissed.

19

Plaintiffs may seek leave to amend and will have 21 CALENDAR DAYS from the date of

20 this order to file motions, noticed on the normal 35-day track, seeking leave to amend solely

21 as to the claims dismissed above. Proposed amended complaints must be appended to each

22 motion and plaintiffs must plead their best case. Any such motion should clearly explain how

23 the amendments to the complaints cure the deficiencies identified herein and should include as

24 an exhibit a redlined or highlighted version of the complaints identifying all changes.

25

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

26

The district court hereby certifies for interlocutory appeal the issues of whether

27 (i) President Trump’s campaign statements are properly considered in evaluating plaintiffs’

28 equal protection claims, (ii) whether the Individual Plaintiffs’ and County of Santa Clara’s

13

Case 3:17-cv-05329-WHA Document 71 Filed 01/12/18 Page 14 of 14

United States District Court For the Northern District of California

1 allegations as pleaded state an equal protection claim, (iii) whether plaintiffs’ allegations

2 concerning changes to the government’s information-sharing policy state a due process claim;

3 (iv) whether plaintiffs have failed to state a claim under 5 U.S.C. § 553; and (v) whether

4 plaintiffs have failed to state a due process claim based on the rescission of DACA. This order

5 finds that these are controlling questions of law as to which there is substantial ground for

6 difference of opinion and that their resolution by the court of appeals will materially advance the

7 litigation.

8

9

IT IS SO ORDERED.

10

11 Dated: January 12, 2018. 12

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

 
 Case: 18-80037, 03/19/2018, ID: 10803188, DktEntry: 1-1, Page 1 of 1

Molly C. Dwyer Clerk of Court

Office of the Clerk United States Court of Appeals for the Ninth Circuit
Post Office Box 193939 San Francisco, California 94119-3939
415-355-8000
March 19, 2018

No.: D.C. Nos.: Short Title:

18-80037
3:17-cv-05211-WHA, 3:17-cv-05235-WHA, 3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv-05813-WHA
UC Regents, et al v. USA, et al

Dear Appellant/Counsel
This is to acknowledge receipt of your Petition for Permission to Appeal under 1292(b).
All subsequent letters and requests for information regarding this matter will be added to your file to be considered at the same time the cause is brought before the court.
The file number and the title of your case should be shown in the upper right corner of your letter to the clerk's office. All correspondence should be directed to the above address pursuant to Circuit Rule 25-1.

Case: 18-80037, 03/19/2018, ID: 10803188, DktEntry: 1-2, Page 1 of 25
No. 18-____
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Plaintiffs-Appellees.
v.
UNITED STATES OF AMERICA; DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; and KIRSTJEN NIELSEN, Secretary of Homeland Security, Defendants-Appellants,
PETITION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA PURSUANT TO 28 U.S.C. § 1292(b) AND MOTION TO HOLD PETITION IN ABEYANCE
CHAD A. READLER Acting Assistant Attorney General
ALEX G. TSE Acting United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

Case: 18-80037, 03/19/2018, ID: 10803188, DktEntry: 1-2, Page 2 of 25
Pursuant to 28 U.S.C. § 1292(b) and Rule 5 of the Federal Rules of Appellate Procedure, the United States respectfully petitions this Court for permission to appeal an interlocutory order of the United States District Court for the Northern District of California. Add.1. We respectfully ask that the Court hold this petition in abeyance pending resolution, including any Supreme Court review, of related expedited appeals currently before the Court, which raise threshold issues that, if resolved in the government’s favor, could moot the issues raised in this petition.
STATEMENT OF CONTROLLING QUESTIONS OF LAW Plaintiffs in these five consolidated suits challenge the decision of the Acting Secretary of Homeland Security to wind down the discretionary immigration nonenforcement policy known as Deferred Action for Childhood Arrivals (DACA). The government has appealed the district court’s grant of a preliminary nationwide injunction reinstating in large part the DACA policy. The government has also appealed the district court’s partial denial of its motion to dismiss pursuant to 28 U.S.C. § 1292(b). Those consolidated appeals are currently pending before this Court; briefing is set to close on April 17, with oral argument to be held in May. On March 8, 2018, the district court entered an order requiring the government to produce an expanded administrative record and privilege log, but ordered that those requirements only take effect after the resolution of the appeals currently pending before this Court. Add.1. The Court also sua sponte certified its order for this Court’s interlocutory review. The controlling question of law presented in the district

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court’s March 8, 2018 order is whether the district court may require expansion of the administrative record beyond that produced by the agency, including through the addition of deliberative, pre-decisional documents, where there has been no showing of bad faith or improper behavior on the part of the agency.
STATEMENT Both this Court and the Supreme Court have previously considered the serious record and discovery-related issues raised in this case. After the district court ordered the government to expand the administrative record, produce a privilege log, and disclose privileged documents, see Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec. (N.D. Cal.), Dkt. No. 79, the government sought mandamus relief in this Court. After this Court denied the government’s mandamus petition, In re United States, 875 F.3d 1200 (9th Cir. 2017), the Supreme Court granted certiorari and vacated this Court’s opinion, noting that the government had made “serious arguments” that at least portions of the district court’s order were overly broad. In re United States, 138 S. Ct. 443, 445 (2017). The Supreme Court directed the district court to consider the government’s threshold arguments before requiring further discovery or record expansion, and suggested that the district court “consider certifying that ruling for interlocutory appeal under 28 U.S.C. § 1292(b) if appropriate.” Id. The Supreme Court further instructed that “[t]hereafter, the Court of Appeals or the District Court in the first instance may consider whether narrower amendments to the record are necessary and appropriate.” Id.

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The district court stayed its discovery and record expansion orders “pending further order.” Dkt No. 225. In orders issued on January 9 and 12, 2018, the court denied in substantial part the government’s motion to dismiss and granted plaintiffs’ preliminary injunction motion. Dkt Nos. 234, 239. The district court certified its rulings on the motion to dismiss for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Dkt No. 234, at 48-49; Dkt No. 239, at 13-14. This Court granted the government’s petition for interlocutory appeal, and sua sponte consolidated the interlocutory appeal with the government’s appeals from the district court’s preliminary injunction ruling. See Order, No. 18-80004 (9th Cir. Jan. 25, 2018) (granting petition for interlocutory appeal); Order, No. 18-15068 (9th Cir. Jan. 17, 2018) (consolidating appeals). The government filed its opening brief on February 13, 2018. Plaintiffs filed their opening briefs on March 13, 2018. On March 15, 2018, the Court granted in part the government’s motion to expedite briefing and argument, such that briefing will be completed by April 17, 2018, and argument will take place in May.
On March 8, 2018, the district court issued a new order requiring expansion of the administrative record. Add.1. The district court narrowed its previous order in some respects—by excluding communications from the White House that “never left the White House complex,” Add.6; by exempting records from persons who provided only verbal input to the Acting Secretary unless they were her first-tier subordinates within DHS, Add.7; and by permitting the parties to re-argue the court’s prior

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privilege and waiver determinations, Add.11. The district court also expanded the
prior order by requiring production of materials directly or indirectly considered by
former DHS Secretary John Kelly in issuing his June 2017 DAPA rescission memo, in
addition to a Februrary 2017 memo regarding immigration enforcement priorities.
Add.5.
Nevertheless, the broad sweep of the district court’s prior order remains largely
intact. In particular, the court’s order continues to require the government to produce:
1. All materials actually seen or considered, however briefly, by the Acting Secretary in connection with the potential or actual decision to rescind DACA;
2. All DACA-related materials considered by persons (anywhere in the government) who thereafter provided the Acting Secretary with written advice or input regarding the actual or potential rescission of DACA, with the exception that White House documents that never left the White House complex need not be included;
3. All DACA-related materials considered by the Acting Secretary’s first-tier subordinates within DHS who thereafter provided the Acting Secretary with verbal input regarding the actual or potential rescission of DACA;
4. All comments and questions propounded by the Acting Secretary to advisors or subordinates or others regarding the actual or potential rescission of DACA and their responses; and
5. All materials directly or indirectly considered by former Secretary of DHS John Kelly leading to his February and June 2017 decisions not to rescind DACA.
Add.8. The district court further directed the government to file a privilege log
describing any documents withheld from the administrative record. Add.11.

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Recognizing that this Court is currently considering threshold legal issues that could obviate the order, the district court postponed the deadline for record expansion until six weeks after any final ruling of this Court, including any potential review of that ruling by the Supreme Court. Id. Acting sua sponte, the district court also certified its order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Add.12.
DISCUSSION 1. In certifying its order for interlocutory appeal sua sponte, the district court correctly recognized that the order raises “controlling questions of law as to which there are substantial grounds for difference of opinion,” and that interlocutory appellate review could “materially advance the litigation.” Add.12; see 28 U.S.C. § 1292(b). The government agrees that, at present, the district court’s record expansion order satisfies the requirements of § 1292(b). The Supreme Court has already noted that the government raised “serious arguments” with respect to the breadth of the district court’s previous record expansion order, and has suggested that this Court should assess whether and to what extent any record expansion is “necessary and appropriate,” albeit only after the government’s threshold arguments have first been adjudicated. In re United States, 138 S. Ct. at 445. And the district court’s order, were it to take effect, would impose upon the government a substantial and unnecessary burden. The requirements for interlocutory appeal are therefore satisfied. See, e.g., Wright & Miller, § 3930 (noting that courts have granted petitions under section 1292(b) “if interlocutory reversal might save time for the district court,

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and time and expense for the litigants”); see also Reese v. BP Exploration (Alaska), 643 F.3d 681, 688 (9th Cir. 2011) (noting that neither “§ 1292(b)’s literal text nor controlling precedent requires that the interlocutory appeal have a final, dispositive effect on the litigation”).
2. Although the elements required for interlocutory appeal are present, the government respectfully requests that the Court hold this petition in abeyance pending resolution—including any Supreme Court review—of the appeals currently before the Court. The district court’s orders will not require any production until after this Court (and, if applicable, the Supreme Court) have decided the currently pending appeals. The government’s contention in those consolidated appeals is that plaintiffs’ claims are non-justiciable and that, even assuming such claims are reviewable, plaintiffs have failed to state a claim upon which relief can be granted because the Acting Secretary’s decision was lawful. If this Court (or the Supreme Court) agrees, then dismissal of some or all of the claims would ensue, which could end the case entirely or significantly narrow the scope of claims asserted. As the Supreme Court noted, a decision in the government’s favor on the threshold issues “likely would eliminate the need for the District Court to examine” an expanded administrative record. In re United States, 138 S. Ct. at 445. Judicial economy therefore favors holding this petition in abeyance at this time.

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3. Counsel for plaintiffs informed counsel for the government that they would

take no position on the government’s petition or motion to hold the petition in

abeyance prior to the government’s filing.

CONCLUSION

For the foregoing reasons, this Court should hold in abeyance this petition for

permission to appeal the order certified by the district court on March 8, 2018,

pursuant to 28 U.S.C. § 1292(b).

Respectfully submitted,

MARCH 2018

CHAD A. READLER Acting Assistant Attorney General
ALEX G. TSE Acting United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

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CERTIFICATE OF COMPLIANCE I hereby certify that this petition and motion comply with Circuit Rules 5-2 and 32-3 because the motion contains 1,609 words, excluding the parts of the petition exempted by Federal Rule of Appellate Procedure 32(f). I further certify that this motion complies with the typeface and type-style requirements of Federal Rules of Appellate Procedure 27(d)(1)(E), 32(a)(5), and 32(a)(6) because it has been prepared using Microsoft Word 2013 in a proportionally spaced typeface, 14-point Garamond font.
s/ Mark B. Stern MARK B. STERN

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CERTIFICATE OF SERVICE I hereby certify that on March 18, 2018, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. Service will be accomplished by email to Michael.Mongan@doj.ca.gov; jdavidson@cov.com; EDettmer@gibsondunn.com; JBerger@cpmlegal.com; and jweissglass@altshulerberzon.com.
s/ Mark B. Stern MARK B. STERN

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ADDENDUM

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TABLE OF CONTENTS Renewed Order to Complete the Administrative Record, Regents of the
Univ. of Calif. v. U.S. Dep’t of Homeland Security, (N.D. Cal. No. 17-5211), Dkt. No. 266 (Mar. 8, 2018), ...................................................................................A1

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United States District Court For the Northern District of California

1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9

10

11 THE REGENTS OF THE UNIVERSITY OF

12

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

13 University of California,

14

Plaintiffs,

15

v.

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA No. C 17-05813 WHA

16

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and KIRSTJEN

17

NIELSEN, in her official capacity as Secretary of the Department of Homeland

18 Security,

RENEWED ORDER TO COMPLETE THE ADMINISTRATIVE RECORD

19

Defendants. /

20

21

INTRODUCTION

22

In these challenges to the government’s rescission of the Deferred Action for Childhood

23 Arrivals program, this order narrows a prior order directing the government to complete the

24 administrative record.

25

STATEMENT

26

The facts underlying these actions are discussed in more detail in prior orders (see, e.g.,

27 Dkt. No. 234). In brief, these five lawsuits challenge the Acting Secretary of the Department of

28 Homeland Security’s decision in September 2017 to terminate a deferred action policy known

as Deferred Action for Childhood Arrivals.

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1

Pursuant to their own stipulation, defendants filed an administrative record on October

2 6, 2017, consisting of fourteen documents received by the Acting Secretary. These documents

3 spanned 256 pages, all of which were already public. All other DACA materials actually

4 received by the Acting Secretary were withheld based on “deliberative process” and other

5 privileges. Plaintiffs immediately moved to require completion of the administrative record,

6 seeking all materials considered “directly or indirectly” by the Acting Secretary in reaching her

7 decision to rescind DACA. Plaintiffs’ motion was granted in part and denied in part on October

8 17 (Dkt. Nos. 64, 65, 79).1

9

The October 17 order directed defendants to complete the administrative record by

10 adding to it all emails, letters, memoranda, notes, media items, opinions and other materials

11 directly or indirectly considered in the final agency decision to rescind DACA, to the following

12 extent:

13

1. All materials actually seen or considered, however briefly, by the Acting

14

Secretary in connection with the potential or actual decision to rescind DACA;

15

2. All DACA-related materials considered by persons (anywhere in the

16

government) who thereafter provided the Acting Secretary with written advice or

17

input regarding the actual or potential rescission of DACA;

18

3. All DACA-related materials considered by persons (anywhere in the

19

government) who thereafter provided the Acting Secretary with verbal input

20

regarding the actual or potential rescission of DACA;

21

4. All comments and questions propounded by the Acting Secretary to advisors or

22

subordinates or others regarding the actual or potential rescission of DACA and

23

their responses; and

24

5. All materials directly or indirectly considered by former Secretary of DHS John

25

Kelly leading to his February 2017 memorandum not to rescind DACA.

26

The October 17 order also addressed various privileges — overruling defendants’ claim

27 of deliberative process privilege as to 35 documents and finding that defendants had waived the

28
1 All docket numbers herein refer to the docket in Case No. 17-cv-05211-WHA.

2
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1 attorney-client privilege as to any materials bearing on whether or not DACA was an unlawful

2 exercise of DHS authority.

3

Rather than submit a complete administrative record, defendants filed a petition for writ

4 of mandamus with our court of appeals. Our court of appeals denied defendants’ petition (over

5 one dissent). Defendants were again ordered to complete the administrative record (Dkt. Nos.

6 86, 188, 197, 199).

7

On December 1, defendants filed in the United States Supreme Court a petition for writ

8 of mandamus and application for a stay, or, in the alternative, for writ of certiorari to our court

9 of appeals. The Supreme Court did not reach the merits of defendants’ petition but required that

10 their jurisdictional defenses be adjudicated prior to consideration of completing the

11 administrative record (Dkt. Nos. 214, 224).

12

An order dated January 9, 2018, ruled on defendants’ threshold jurisdictional arguments

13 and sustained jurisdiction, issues now before our court of appeals. The parties later submitted

14 argument, at the Court’s invitation, as to whether some narrowing of the October 17 order was

15 necessary or appropriate (Dkt. Nos. 234, 242, 243). This order follows.

16

ANALYSIS

17

1.

SCOPE OF THE ADMINISTRATIVE RECORD.

18

The main question addressed in this order is the meaning of the term “the whole record”

19 in the context of informal agency action. 5 U.S.C. § 706. This issue is important — not just to

20 the instant dispute but to all informal agency decisions reviewable under the APA. Unlike

21 formal agency adjudication and notice-and-comment rulemaking, informal agency action has no

22 readily-defined record. In a rulemaking case, for example, the record is “comprised of

23 comments received, hearings held, if any, and the basis and purpose statement,” among other

24 things. Rodway v. U.S. Dep’t of Agric., 514 F.2d 809, 817 (D.C. Cir. 1975). And, the trial-type

25 record in administrative adjudications consists of “[t]he transcript of testimony and exhibits,

26 together with all papers and requests filed in the proceeding.” 5 U.S.C. § 556.

27

The Supreme Court has never defined “the whole record” in the context of informal

28 agency action, our instant setting. But our court of appeals has explained that the whole record

3
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1 “is not necessarily those documents that the agency has compiled and submitted as ‘the’

2 administrative record.” Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989).

3 Rather, it “consists of all documents and materials directly or indirectly considered by agency

4 decision-makers and includes evidence contrary to the agency’s position.” Ibid. The “whole

5 record” accordingly includes documents that “literally pass[ed] before the eyes of the final

6 agency decision maker” as well as those considered and relied upon by subordinates who

7 provided recommendations to the decisionmaker. California ex rel. Lockyer v. U.S. Dep’t of

8 Agriculture, Nos. 05-cv-3508 & 05-cv-4038, 2006 WL 708914, at *2 (N.D. Cal. Mar. 16, 2006)

9 (Magistrate Judge Elizabeth Laporte) (internal citations and quotations omitted); see also Amfac

10 Resorts, L.L.C. v. U.S. Dep’t of the Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001) (Judge Royce

11 Lamberth).

12

Although the administrative record submitted by defendants is entitled to a presumption

13 of completeness, Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993), this order

14 again finds that plaintiffs have shown, by clear evidence, that the administrative record filed by

15 defendants lacks documents that were considered, directly or indirectly, by the Acting Secretary

16 in deciding to rescind DACA. Again, the submitted record consists only of fourteen documents

17 comprising a mere 256 pages — all already public — nearly 200 pages of which consist of the

18 Supreme Court, Fifth Circuit, and district court opinions in the DAPA litigation. Our own

19 Ninth Circuit and the Second Circuit have both agreed that it strains credulity that defendants

20 terminated DACA based solely on fourteen publicly available documents. See In re United

21 States, 875 F.3d 1200, 1206 (9th Cir. 2017), judgment vacated on other grounds by In re United

22 States, 138 S. Ct. 443 (2017); In Re: Kirstjen M. Nielsen, No. 17-3345 (2d. Cir. Dec. 27, 2017).

23

But while completion of the administrative record is necessary, this order is mindful of

24 the Supreme Court’s concern that defendants have raised “serious arguments that at least

25 portions of the [October 17] order are overly broad.” In re United States, 138 S. Ct. at 445.

26 After consideration of the parties’ supplemental submissions on this point, this order will

27 narrow the October 17 order.

28

4
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1

First, even defendants agree that non-privileged materials considered by the Acting

2 Secretary in connection with the decision to rescind DACA should be included in the record.

3 Defendants’ supplemental submission does not specifically address, however, whether the

4 administrative record should include comments and questions propounded by the Acting

5 Secretary to others (and their responses) regarding the rescission. This order restates that the

6 first and fourth categories of materials outlined in the October 17 order should be included in

7 the administrative record.

8

Second, because reasoned agency decision-making “ordinarily demand[s] that [the

9 agency] display awareness that it is changing position” and “show that there are good reasons

10 for the new policy,” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), the

11 October 17 order directed defendants to include in the administrative record all materials

12 directly or indirectly considered by Secretary Kelly that led to his earlier decision to continue

13 the DACA program.

14

Two events are relevant. In February 2017, Secretary Kelly issued guidance regarding

15 the Trump Administration’s immigration enforcement priorities which — despite rescinding

16 “all existing conflicting directives, memoranda, or field guidance regarding the enforcement of

17 our immigration laws and priorities for removal” — explicitly left DACA in place. Then, in

18 June 2017, Secretary Kelly rescinded the 2014 DAPA memo while again declaring that DACA

19 would remain in effect. Materials considered by Secretary Kelly that led to his February and

20 June 2017 decisions to continue DACA are pertinent here, and the inclusion of such documents

21 in the administrative record remains required.2

22

Third, the Acting Secretary surely received both written and verbal input from her

23 subordinates regarding the decision to rescind DACA. Yet the record lacks even a single

24 communication from any of the Acting Secretary’s subordinates. With respect to written input,

25 the October 17 order sought to remedy this omission in two ways. One was to require inclusion

26
2 While the October 17 order only required defendants to include materials directly or indirectly
27 considered by Secretary Kelly leading to his February 2017 decision, upon further reflection, defendants should
also be required to include materials directly or indirectly considered by Secretary Kelly leading to his June
28 2017 decision.

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1 of some materials sent to the Acting Secretary that were previously withheld under a claim of

2 deliberate process privilege. The other was to require inclusion of all DACA-related materials

3 considered by persons (anywhere in the government) who, after such consideration, provided

4 the Acting Secretary with written input regarding the rescission of DACA. In other words,

5 anyone providing written input to the Acting Secretary on the rescission was required to

6 produce their DACA materials (up to the date of their input) on the premise that such materials

7 had informed their input.3

8

Defendants argue that this category of materials should be narrowed so as to exclude

9 any document originating from the White House, whether or not such documents are in the

10 possession of DHS or another agency. For their part, plaintiffs suggest exempting from the

11 administrative record any White House documents that never left the White House complex.

12 This order accepts plaintiffs’ narrower version.

13

Communications from the White House residing at DHS remain an important part of the

14 administrative record (in part due to the White House’s emphasis of the President’s direct role

15 in decisions concerning the program). Indeed, defendants concede that the Acting Secretary

16 received advice from other members of the Executive Branch in making her decision and

17 referred to “White House memorandum” in their privilege log (Dkt. No. 71-2). But to curtail

18 any separation-of-powers concerns, defendants need not collect materials from White House

19 personnel. The agency defendants need look no further than their own files. In all other

20 respects, however, the second category of materials described in the October 17 order remains

21 intact.

22

Fourth, with respect to verbal input to the Acting Secretary, to capture the factual

23 information verbally conveyed and considered in connection with the decision to rescind

24 DACA, the October 17 order similarly required inclusion of all DACA-related materials

25 considered by persons (anywhere in the government) who thereafter provided the Acting

26 Secretary with verbal input regarding the rescission. Defendants argue that the collection and

27
3 Although the October 17 order overruled defendants’ privilege assertions with respect to some of the
28 written inputs received by the Acting Secretary from her subordinates, these materials have not yet been
included in the administrative record.

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1 review of documents from custodians who provided only verbal advice is overly burdensome

2 and disproportionate to the needs of the case. Plaintiffs, in turn, suggest that this requirement

3 be narrowed to apply only to materials located within or reviewed by DHS or DOJ personnel

4 rather than anywhere in the government.

5

The appellate caselaw has never expressly considered how, if at all, verbal input to an

6 agency decisionmaker should be reflected in the administrative record. Verbal input, of course,

7 can be every bit as influential — perhaps more influential — in shaping informal agency

8 decisions as written input. Yet despite government counsel’s acknowledgment that verbal input

9 likely occurred (Dkt. No. 78 at 31:5), the thin administrative record supplied thus far omits even

10 a clue as to the verbal advice received by the Acting Secretary on the question of the rescission

11 of DACA.

12

Nevertheless, this order narrows the October 17 order in that defendants need only add

13 to the administrative record documents of the Acting Secretary’s first-tier subordinates who

14 provided verbal input regarding the rescission of DACA. Figuring out who gave verbal input

15 will not be as hard as the government suggests. One method would be to ask the decisionmaker

16 which first-tier subordinates provided verbal input and then include in the administrative record

17 the relevant files and emails of such subordinates up to the date of their last input. Another

18 would be to ask the first-tier subordinates if they gave verbal input and, if so, to include their

19 DACA files and emails up to the date of their last input. Yet another method would be to

20 review the emails of the Acting Secretary and first-tier subordinates for references to verbal

21 input, such as references to a meeting on the subject or to follow up on a verbal

22 recommendation. This order leaves it to government counsel to select the combination of

23 methods best calculated to retrieve the relevant records. The government is not required to

24 construct records that never existed but only to corral the records that plausibly informed the

25 verbal input received by the Acting Secretary.4

26

27

4 The narrower administrative record set forth in this order more closely aligns with that required by

Judge Nicholas Garaufis in the parallel DACA actions pending in the United States District Court for the
28 Eastern District of New York. See Batalla Vidal v. Duke, No. 16-cv-4756, 2017 WL 4737280, at *5 (E.D.N.Y.

Oct. 19, 2017).

7
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1

In sum, defendants are directed to complete the administrative record by adding to it all

2 emails, letters, memoranda, notes, media items, opinions and other materials directly or

3 indirectly considered in the final agency decision to rescind DACA, to the following extent:

4

1. All materials actually seen or considered, however briefly, by the Acting

5

Secretary in connection with the potential or actual decision to rescind DACA;

6

2. All DACA-related materials considered by persons (anywhere in the

7

government) who thereafter provided the Acting Secretary with written advice or

8

input regarding the actual or potential rescission of DACA, with the exception

9

that White House documents that never left the White House complex need not

10

be included;

11

3. All DACA-related materials considered by the Acting Secretary’s first-tier

12

subordinates within DHS who thereafter provided the Acting Secretary with

13

verbal input regarding the actual or potential rescission of DACA;

14

4. All comments and questions propounded by the Acting Secretary to advisors or

15

subordinates or others regarding the actual or potential rescission of DACA and

16

their responses; and

17

5. All materials directly or indirectly considered by former Secretary of DHS John

18

Kelly leading to his February and June 2017 decisions not to rescind DACA.

19

*

*

*

20

Because of the pendency of appellate review over the government’s threshold

21 jurisdictional arguments, this order postpones the deadline for completion of the administrative

22 record until FORTY-TWO CALENDAR DAYS after any final appellate ruling that the agency action

23 is reviewable. If either side seeks Supreme Court review of the threshold jurisdictional

24 questions, then any ruling by our court of appeals will become final only upon refusal of the

25 Supreme Court to review it or upon a ruling by the Supreme Court itself that the agency action

26 is reviewable.

27

28

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1

2.

PRIVILEGE.

2

A. Waiver of Attorney-Client Privilege.

3

The October 17 order held that defendants waived attorney-client privilege over any

4 materials that bore on whether or not DACA was an unlawful exercise of executive power and

5 therefore should be rescinded. This holding was based on the well-established principle that

6 parties are not permitted to advance conclusions that favor their position in litigation and at the

7 same time shield the information that led to those conclusions from discovery. See Chevron

8 Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992). Put differently, “[t]he privilege

9 which protects attorney-client communications may not be used both as a sword and a shield.”

10 Ibid. Where a party raises a claim, which in fairness to its adversary requires it to reveal the

11 information or communication that claim is predicated upon, it has implicitly waived any

12 privilege over that communication.

13

Here, DHS’s rationale for rescinding DACA was its purported illegality (see Dkt. No.

14 64-1 at 253–56 (Rescission Memorandum)). And although defendants included the September

15 4 legal opinion of the Attorney General in the administrative record, they sought to conceal all

16 other legal analysis available to the Acting Secretary or the Attorney General. The October 17

17 order thus determined that defendants could not simultaneously refuse to disclose the legal

18 research that led to that conclusion.

19

As explained in a later order dated January 9, however, the INA itself makes clear that

20 once the Attorney General determined that DACA was illegal, the Acting Secretary had to

21 accept his ruling as “controlling.” Section 1103(a)(1) of Title 8, a provision that allocates

22 immigration power and duties among the Secretary of Homeland Security, the Secretary of

23 State, and the Attorney General, provides that “determination and ruling by the Attorney

24 General with respect to all questions of law shall be controlling.” Therefore, once the Attorney

25 General advised the Acting Secretary that DACA was illegal, that determination became

26 controlling and any legal analysis provided by others would be irrelevant. Put differently, the

27 Acting Secretary did not “rely” on the advice of counsel and thus waive the privilege (as to all

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1 other legal advice available to her). Instead, she became bound by the “controlling” Attorney

2 General determination.

3

On the other hand, the government has maintained that the basis of the rescission was

4 not the legal determination that DACA was illegal but rather was a judgment call based on

5 balancing litigation risk. Viewed in that light, the original waiver analysis would seem to

6 remain valid, such that all legal advice on DACA’s legality made available to the Acting

7 Secretary and/or the Attorney General would be includable in the administrative record.

8

In light of this more nuanced analysis, this order finds it prudent to wait and decide the

9 scope of defendants’ waiver of attorney-client privilege until Section 1103(a)(1)’s import is

10 considered by our court of appeals in connection with the currently pending interlocutory

11 appeal of the January 9 order. For the time being, no waiver of the attorney-client privilege will

12 be enforced (although any materials withheld on this ground must be logged).5

13

B. Privilege Assertions.

14

While defendants did not file a privilege log with their original production, they later,

15 pursuant to order, filed a privilege log claiming attorney-client, deliberative process, and other

16 privileges over 84 documents considered by the Acting Secretary (Dkt. Nos. 67, 71-2). The

17 October 17 order overruled the privilege assertions as to 35 of the withheld documents

18 (although so far none have been produced). The October 17 order further required that

19 defendants maintain a privilege log for all future documents withheld on grounds of privilege.

20 In their supplemental submission, defendants repeat their objection to providing a privilege log.

21

To reiterate, our court of appeals has not spoken on this issue. Every court in this

22 district to consider the issue, however, has required administrative agencies to provide a

23 privilege log in withholding documents that otherwise belong in the administrative record. See,

24 e.g., Ctr. for Food Safety v. Vilsack, No. 15-cv-01590, 2017 WL 1709318, at *5 (N.D. Cal. May

25 3, 2017) (Magistrate Judge Kandis Westmore); Inst. for Fisheries Res. v. Burwell, No.

26 16-cv-01574, 2017 WL 89003, at *1 (N.D. Cal. Jan. 10, 2017) (Judge Vince Chhabria);

27

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5 Notably, the parties did not raise or address the impact of Section 1103(a)(1) in any of their briefing.

Accordingly, it was not considered in connection with the October 17 order.

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1 Lockyer, 2006 WL 708914, at *4. As a practical matter, if agencies were permitted to withhold

2 materials from the administrative record on the basis of privilege, but were not required to

3 submit a privilege log, their withholding based on privilege would never surface and would

4 wholly evade review. This would invite all manner of mischief. Accordingly, this order holds

5 once again that a privilege log is required. The privilege log shall comply with the

6 supplemental order setting the initial case management conference in this case, and shall

7 include all authors and recipients of privileged documents, as well as the other information set

8 forth in that order (see Dkt. No. 23 ¶ 18).

9

With respect to documents previously identified on defendants’ earlier privilege log, the

10 Court has already ruled on each document following an in camera review. If, however,

11 defendants wish to relitigate those rulings via a more thorough review than before (despite

12 defendants’ earlier request only for an in camera review), then the following procedures will

13 apply. Within TWENTY-EIGHT CALENDAR DAYS of the finality of any appellate order

14 sustaining reviewability of the rescission of DACA (as defined above), defendants may file a

15 brief (on the public docket) presenting argument as to why the subject documents should remain

16 withheld as privileged. Also at that time, defendants shall submit under seal declarations

17 invoking and justifying the relevant privilege. These filings shall also be provided to plaintiffs,

18 but may be redacted to the extent (but only to the extent) necessary to maintain the privilege

19 asserted. Within FOURTEEN CALENDAR DAYS of defendants’ submission, plaintiffs may file a

20 response. The Court will then review the materials and allow argument by defendants’ counsel

21 at an ex parte hearing. Plaintiffs’ counsel shall standby outside the courtroom. Without

22 revealing specifics of the withheld materials, the Court may invite plaintiffs’ counsel to make

23 one or more cameo appearances to argue as appropriate. The foregoing deadlines pertain only

24 to the 35 documents previously ordered to be added to the administrative record (should the

25 government want to relitigate that ruling). Should plaintiffs wish to relitigate the privilege issue

26 as to the documents for which the privilege was previously sustained, the same procedures shall

27 apply.

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1

With respect to the larger administrative record yet to be provided, if defendants redact

2 or withhold any material based on deliberative process or any other privilege, they shall

3 simultaneously lodge for the Court’s review full copies of all such materials, indicating by

4 highlighting (or otherwise) the redactions and withholdings together with a privilege log for

5 each. The parties shall follow the same procedures outlined above, and within TWENTY-EIGHT

6 CALENDAR DAYS from the date on which the privilege log and withheld documents are

7 submitted, defendants shall submit their brief and supporting declarations. Within FOURTEEN

8 CALENDAR DAYS of defendants’ submission, plaintiffs may file a response. The Court will

9 again allow ex parte argument by defendants’ counsel if requested and may invite argument

10 from plaintiffs’ counsel to the extent appropriate.

11

All privilege issues are hereby REFERRED to MAGISTRATE JUDGE SALLIE KIM to be

12 heard and determined in accordance with the above procedures.

13

CONCLUSION

14

Defendants shall file an amended administrative record in conformity with this order

15 within FORTY-TWO CALENDAR DAYS of any final appellate ruling that the agency action

16 terminating DACA is reviewable. Discovery remains stayed.

17

18

19

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

20

The district court hereby certifies for interlocutory appeal the issues of whether: (1)

21 inclusion of the above-referenced materials in the complete administrative record is necessary

22 and appropriate; and (2) defendants should be required to provide a privilege log with respect to

23 documents withheld from the administrative record on the basis of deliberate process or other

24 privileges. This order finds that these are controlling questions of law as to which there is

25 substantial ground for difference of opinion and that their resolution by the court of appeals will

26 materially advance the litigation.

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If a petition is submitted for interlocutory review and is granted, then this order shall be

2 deemed stayed and defendants need not complete the administrative record until a final

3 appellate order requiring them to do so.

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5

IT IS SO ORDERED.

6

7 Dated: March 8, 2018. 8

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

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1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 JUSTIN T. BERGER (SBN 250346) jberger@cpmlegal.com
3 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
4 TAMARAH P. PREVOST (SBN 313422) tprevost@cpmlegal.com
5 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
6 840 Malcolm Road, Suite 200 Burlingame, CA 94010
7 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
8

NORA FRIMANN (SBN 93249) 9 nora.frimann@sanjoseca.gov

10

OFFICE OF THE CITY ATTORNEY 200 East Santa Clara Street, 16th Floor

11 San José, California 95113 Telephone: (408) 535-1900

12 Facsimile: (408) 998-3131

13 Attorneys for Plaintiffs the City of San Jose 14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

CITY OF SAN JOSE, a municipal 18 corporation, and all those similarly
situated, 19

Case No. 3:17-cv-05329-WHA AMENDED COMPLAINT FOR:

20

Plaintiffs,

1. VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706

vs.

21

22

DONALD J. TRUMP, President of the United States, in his official capacity,

2. VIOLATION OF FEDERAL VACANCIES REFORM ACT, 5 U.S.C.

§ 3345 ET SEQ., AND HOMELAND

23 CHAD F. WOLF, in his official

SECURITY ACT, 6 U.S.C. §§ 112–13

capacity as Purported Secretary of the

24 Department of Homeland ,

3. VIOLATION OF THE APPOINTMENTS

25 U.S. DEPARTMENT OF HOMELAND SECURITY,
26

CLAUSE, U.S. CONST., ART. II, § 2, CL. 2

U.S. CITIZENSHIP AND 27 IMMIGRATION SERVICES,

28
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1 and JOSEPH EDLOW, in his official capacity as Purported Deputy Director
2 of Policy of USCIS. Defendants.
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1 2 I. 3 II. 4 III. 5 6 7 IV. 8 9 10 11 12 13 14 15 16 17 18 19 V. 20 VI. 21

TABLE OF CONTENTS Page No.
INTRODUCTION..............................................................................................................1
JURISDICTION AND VENUE........................................................................................3
PARTIES ............................................................................................................................4
A. Plaintiff ....................................................................................................................4
B. Defendants ...............................................................................................................5
FACTUAL ALLEGATIONS ............................................................................................5
A. The DACA Program ................................................................................................6
B. Immigrants Contribute to the Success of the United States and California Cities ................................................................................................7
C. DACA Has Provided 800,000 Young People Who Have Known No Other Country than the United States a Chance to Attend College and/or Work .............................................................................................................8
D. San Jose and Silicon Valley Have Benefitted From DACA....................................9
E. The Latest Attempts to Diminish the DACA Program ..........................................10
F. Defendant Wolf is acting unlawfully as Acting Secretary of Homeland Security.................................................................................................11
G. San Jose Has Taken Action to Try to Help Its Immigrant Residents, But Has Limited Ability to Effectuate Change, Except With this Lawsuit ...........12
H. The Federal Government’s Changes to the DACA Program Will Harm San Jose..................................................................................................................13
CLAIMS FOR RELIEF ..................................................................................................15
PRAYER FOR RELIEF..................................................................................................19

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1 I. INTRODUCTION

2

1. For the last five years, young people who have lived in the United States since

3 they were children, even though they were born in another country, have had the right to live,

4 work and attend college if they met stringent requirements as set forth by the Deferred Action

5 for Childhood Arrivals (“DACA”). Exhibit 1. The success of these DREAMers, as they are

6 known, has been an incredible story. Young people who otherwise would not have had the

7 opportunity to attend college or work have now had that ability, thus enriching the lives of

8 themselves, their families, and their communities. Under DACA, Plaintiff, the City of San Jose

9 (“San Jose”), and other California cities have been able to hire DREAMers, which has

10 benefited the cities and their residents.

11

2. DACA has protected from deportation, and extended work authorization to more

12 than 800,000 young people who were brought to this country as children. DACA affords

13 recipients a two-year period of “deferred action” status, meaning they are not subject to

14 immigration enforcement actions during that time, and work authorization, allowing them to

15 work legally, report income, and pay taxes.

16

3. During the 2016 election campaign, rhetoric about immigration became nasty.

17 One of the candidates who made extremely outrageous and false statements about immigrants

18 was defendant Donald J. Trump. After he was elected and sworn into office, President

19 Trump’s anti-immigrant rhetoric continued.

20

4. Yet, throughout the early days of the campaign and President Trump’s

21 presidency, he made positive and reassuring comments about DACA and the DREAMers. On

22 April 24, 2017 in an interview with the Associated Press, for example, President Trump told

23 undocumented immigrants who were brought to the United States as children that they could

24 “rest easy.”

25

AP: A lot of the dreamers have been hoping to hear something from you. I don't want

26

to give them the wrong message with this.

27

TRUMP: Here is what they can hear: The dreamers should rest easy. OK? I'll give

28

you that. The dreamers should rest easy....

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5. Since the United States is a land of immigrants, most Americans realize the

2 importance of immigrants to this country.

3

6. President Trump broke his promises. He directed his Attorney General to make

4 an announcement on September 5, 2017, that DACA would be rescinded, Exhibit 2, and then

5 Defendant Elaine C. Duke (“Secretary Duke”) as the Acting Secretary of the Department of

6 Homeland Security, issued a memorandum that rescinded DACA, although it deferred rescission

7 for six months. (“Duke Memorandum”). Exhibit 3.

8

7. Secretary Duke’s memorandum, did not explain the administration’s reasons for

9 rescinding DACA. Instead, the memorandum referred to the Attorney General’s assertion that

10 DACA may be unlawful, based on a case involving different programs – Deferred Action for

11 Parents of Americans and Lawful Permanent Residents (“DAPA”). The reasons for the

12 rescission were contrary to the facts, and arbitrary and capricious.

13

8. This Court entered a preliminary injunction in January 2018, requiring DHS to

14 continue processing renewal applications, a decision affirmed by the U.S. Court of Appeals for

15 the Ninth Circuit in November 2018. Then, on June 18, 2020 the Supreme Court held that the

16 Duke Memorandum rescinding DACA was unlawful, arbitrary, and capricious under the

17 Administrative Procedure Act, and must be set aside.

18

9. In spite of the Supreme Court’s decision, Defendants have continued their

19 attempts to dismantle the DACA program. On July 28, 2020, Defendant Chad Wolf, in his

20 capacity as purported Acting Secretary of Homeland Security, issued a memorandum (the “Wolf

21 Memorandum”), Exhibit 4, directing DHS to make immediate changes to DACA. The Wolf

22 Memorandum orders DHS to reject all new DACA applications, to reject all requests for

23 advance parole (i.e., permission to re-enter the United States after traveling abroad) other than in

24 exceptional circumstance. The Wolf Memorandum also reduces the renewal period for current

25 DACA recipients from two years to one. On August 21, 2020, Defendant Edlow, in his

26 purported capacity as Deputy Director of Policy of Defendant United States Citizenship and

27 Immigration Services (“USCIS”), issued a memorandum implementing the Wolf Memorandum

28 (the “Edlow Directive”).

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10. Defendants’ actions are invalid, unlawful and must be set aside.

2

11. As an initial matter, Defendant Wolf lacked the authority to direct changes to the

3 DACA program because at the time he issued the Wolf Memorandum, he was unlawfully

4 exercising the functions of the Secretary of Homeland Security, in violation of the United States

5 Constitution, the Federal Vacancies Reform Act of 1998 (“FVRA”), 5 U.S.C. § 3341 et seq., and

6 the Homeland Security Act of 2002, 6 U.S.C. § 111 et seq. (“HSA”).

7

12. Moreover, the Wolf Memorandum, the Duke Memorandum, and the Edlow

8 Directive were all arbitrary and capricious under the APA, and violate the Due Process Clause

9 of the Fifth Amendment. For these reasons, Plaintiff asks this Court to declare the Wolf

10 Memorandum and Edlow Directive unlawful and unenforceable, and to enjoin and restrain

11 Defendants from taking further steps to rescind the program pursuant to those unlawful actions.

12

13. Over a quarter of DACA recipients live in California. The program has

13 benefitted DACA recipients, their families, their employers, local communities, and American

14 society as a whole.

15

14. As a result of Defendants’ actions, DACA recipients and these stakeholders have

16 been harmed. Fear and uncertainty have invaded their lives. Not only have they been injured,

17 but so too has San Jose.

18 II. JURISDICTION AND VENUE

19

15. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1346. This Court has

20 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202 et

21 seq. This Court also has additional remedial authority under the APA, 5 U.S.C. §§ 701–06.

22

16. Venue properly lies within the Northern District of California because Plaintiff,

23 the City of San Jose, is a public entity in this judicial district and a substantial part of the events

24 or omissions giving rise to this action will occur or have occurred in this District. 28 U.S.C. §

25 1391(e).

26

17. There exists an actual and justiciable controversy between Plaintiff and

27 Defendants requiring resolution by this Court. Plaintiff has no adequate remedy at law.

28 / / /

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1 III. PARTIES

2

A. Plaintiff

3

18. Plaintiff San Jose is a municipal corporation, organized as a Charter City under

4 the California Constitution and the laws of the State of California and is located in the County of

5 Santa Clara. It is the tenth largest city in the United States. San Jose has always been a place

6 for immigrants with almost 40% of its current population having been born in another country.

7 San Jose, which had been home to the Ohlone Indians for hundreds of years, was founded by

8 Spain on November 29, 1777, as El Pueblo de San Jose de Guadalupe. In 1821, San Jose

9 became part of Mexico. After the Treaty of Guadalupe Hidalgo ceded California to the United

10 States at the end of the Mexican-American War in 1848, San Jose became its first incorporated

11 U.S. city.

12

19. San Jose is bringing this action on its own behalf and on the behalf of its

13 employees who are DACA recipients. As described below, San Jose has suffered its own injury

14 in fact. It also has third party standing to bring this action on behalf of its employees because

15 San Jose has a concrete interest in the outcome of the dispute; San Jose has a close relationship

16 with its employees, whose rights it is asserting, and there is a hindrance to the employees to

17 protect their own interests. Powers v. Ohio, 499 U.S. 400, 410-11, (1991); Singleton v. Wulff,

18 428 U.S. 106, 113-16 (1976); Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56,

19 62 (9th Cir. 1994). Where here, San Jose is asserting the same right, to allow DACA recipient

20 employees to have the right to legally work for San Jose, San Jose’s and its employees rights are

21 inextricably bound up, which satisfies the requirement that San Jose’s interest is sufficiently

22 aligned with that of its employees. Viceroy Gold Corp. v. Aubry, 75 F.3d 482, 488-89 (9th Cir.

23 1996). The fact that the employees are undocumented immigrants with fear of provoking the

24 attention of the immigration authorities or creating other legal risks satisfies the requirement that

25 there is a hindrance to San Jose’s employees protecting their own interests, especially in light of

26 Defendants’ demonstrated hostility to them. Young Apartments, Inc. v. Town of Jupiter, 529

27 F.3d 1027, 1044 (11th Cir. 2008).

28 / / /

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B. Defendants

2

20. Defendant Donald J. Trump has been the President of the United States since

3 January 20, 2017. He is sued in his official capacity. As a candidate, he railed against

4 immigrants. When he announced his candidacy in June 2015, for example, he stated: “The U.S.

5 has become a dumping ground for everybody else’s problems. Thank you. It’s true, and these

6 are the best and the finest. When Mexico sends its people, they’re not sending their best.

7 They’re not sending you. They’re not sending you. They’re sending people that have lots of

8 problems, and they’re bringing those problems to us. They’re bringing drugs. They’re bringing

9 crime. They’re rapists. And some, I assume, are good people.” There was no factual support

10 for this statement. Despite his animus towards immigrants, he has consistently indicated his

11 support for DACA, including tweeting on September 7, 2017, after DACA was rescinded, that

12 “For all those (DACA) that are concerned about status during the 6 month period, you have

13 nothing to worry about – No action!”

14

21. Defendant Chad F. Wolf is the purported Acting Secretary of Homeland Security.

15 He is purportedly responsible for managing and overseeing DHS, including the United States

16 Citizenship and Immigration Services (“USCIS”) and the Immigration and Customs

17 Enforcement (“ICE”). Plaintiff sues him in his official capacity.

18

22. Defendant DHS is a federal agency within the meaning of 5 U.S.C. § 552(f)(1),

19 and Defendant USCIS is a component of DHS responsible for implementing the immigration

20 laws and policies of the United States, including the DACA program.

21

23. Defendant Joseph Edlow is the purported Deputy Director of Policy of USCIS.

22 He is sued in his official capacity, in which capacity he issued the challenged Edlow Directive.

23 IV. FACTUAL ALLEGATIONS

24

22. The Statue of Liberty has stood as a welcoming beacon of hope and inspiration to

25 the millions of immigrants who have come to the United States through New York. Inscribed on

26 the statue are the stirring words of Emma Lazarus to: “Give me your tired, your poor, your

27 huddled masses yearning to breathe free.”

28 / / /

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23. Contrasting this inspiring message, some groups in the United States have

2 historically tried to limit citizenship to groups of people some found undesirable. Yet, most of

3 the immigrants who have come to the United States simply want to better their lives, support

4 their families, and contribute productively to their new country. Diversity of citizenship

5 achieved through immigration has helped America become the international powerhouse it is

6 today.

7

A. The DACA Program

8

24. Throughout the latter part of the last century and the first part of this century,

9 politicians could not agree on a comprehensive immigration policy. Immigrants who would

10 have had a clear path to citizenship in the past found citizenship almost impossible to achieve.

11 Yet, immigrants who had no hope in their country of birth came to the United States without

12 documentation for a better life. In the process, they have enriched our country. Many of these

13 immigrants brought their entire families, including their young children.

14

25. By 2012, there were millions of residents who came here as children, but they did

15 not have documentation to remain in this country. As Congress stalled in enacting any

16 meaningful immigration reform, there was a groundswell to protect these young people from

17 deportation and allow them to live productive lives to enrich themselves, their families and their

18 adopted country.

19

26. In June of 2012, President Barack Obama, through an Executive Order, enacted

20 DACA. He stated that he believed it was “the right thing to do” to protect young people who do

21 not know any country but America. On June 15, 2012, then Secretary of Homeland Security

22 Janet Napolitano issued a memorandum establishing the DACA program. Exhibit 1. DACA is

23 in essence a deferred prosecution agreement.

24

27. The 2012 DACA Memorandum established that an applicant would be

25 considered for an exercise of prosecutorial discretion only by satisfying each of the following

26 criteria:

27

• came to the United States under the age of sixteen;

28

• had continuously resided in the United States for at least five years

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preceding the date of the memorandum and is present in the United States

2

on the date of the memorandum;

3

• was currently in school, had graduated from high school, had obtained a

4

general education development certificate, or was an honorably

5

discharged veteran of the Coast Guard or Armed Forces of the United

6

States;

7

• had not been convicted of a felony offense, a significant misdemeanor

8

offense, multiple misdemeanor offenses, or otherwise poses a threat to

9

national security or public safety; and

10

• was not above the age of thirty.

11

28. In addition to simply being eligible for this program, undocumented immigrants

12 must also pay a $495 application fee, submit several forms, and produce documents showing

13 they meet the requirements. Moreover, if a DACA qualifying immigrant wants to travel abroad

14 there is an additional fee and application requirement required. Those applying are also vetted

15 for any criminal history or threat to national security and must be students or have completed

16 school or military service. If approved, action to deport them is deferred for two years, along

17 with the opportunity to renew, along with gaining eligibility for basics like a driving license,

18 college enrollment or a work permit.

19

29. In exchange for DACA applicants providing sensitive and private information

20 regarding their entire lives, the United States government promised to keep the information

21 confidential and not to use it, except in limited circumstances, for any purposes except for

22 DACA purposes.

23

B. Immigrants Contribute to the Success of the United States and California

24

Cities

25

30. San Jose has been an extremely diverse region since the mid-1800s, which has

26 led to immigrants gravitating to such areas where there are already established immigrant

27 communities. Waves of immigrants, from China and Mexico, Vietnam, India, and Northern

28
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Europe, have played a fundamental role in the creation of three profoundly different industries:

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1 first mining, then agriculture, and finally technology in San Jose and the Silicon Valley.

2 http://www.sanjoseca.gov/DocumentCenter/View/19862.

3

31. Each California city has its own story of immigration from Spain, Mexico, China,

4 Russia, and other countries, which has led to California being a successful and vibrant part of

5 our country.

6

32. And the United States has been positively impacted by immigrants, even

7 undocumented immigrants, as reflected in multiple studies. In April of 2016 for example, the

8 U.S. Chamber of Commerce published a report entitled Immigration Myths and Faces,

9 www.uschamber.com/reports/immigration-myths. The report demonstrates that most common

10 negative contentions regarding immigrants are false. For example, with citation to evidence, the

11 Chamber of Commerce demonstrates that immigrants do not take away jobs from U.S. citizens,

12 do not drive down the wages of the U.S. workers, but to the contrary, immigrants are necessary

13 for the U.S. economy. The Chamber also demonstrates that immigrants, even undocumented

14 immigrants, pay taxes. Undocumented immigrants are not eligible for federal public benefit

15 programs like Social Security, Medicaid, Medicare, and food stamps. The Chamber report

16 demonstrates that undocumented immigrants do not commit more crime than citizens. FBI data

17 demonstrates that as the number of undocumented immigrants tripled from 1990, violent crime

18 declined 48% and property crime declined 41%. A report from the conservative Americas

19 Majority Foundation found that crime rates are lowest in states with the highest immigration

20 growth rates. Immigrants are less likely than people born in the United States to commit crimes

21 or be incarcerated.

22

C. DACA Has Provided 800,000 Young People Who Have Known No Other

23

Country than the United States a Chance to Attend College and/or Work

24

33. The rewards of DACA have been enormous, not only to the immigrants who

25 came to this country as children, but to the nation. First-generation immigrants who enter the

26 United States as children tend to pay, on average, more in taxes over their lifetimes than they

27 receive in benefits, regardless of their education level. DACA recipients end up contributing

28
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more than the average, because they are not eligible for any federal means-tested welfare: cash

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1 assistance, food stamps, Medicaid, health-care tax credits or anything else.

2

34. Moreover, DACA recipients also are better educated than the average immigrant.

3 Applicants must have at least a high school degree to enter the program. An additional 36

4 percent of DACA recipients who are older than 25 have a bachelor’s degree, and an additional

5 32 percent are pursuing a bachelor’s degree.

6

35. Further, while studies show that undocumented immigrants are much less likely

7 to end up in prison, this fact is especially true for DACA recipients since applicants must also

8 pass a background check, indicating even lower levels of criminal behavior than the average

9 American citizen.

10

36. DACA has been a success as it has allowed over 800,000 recipients to work and

11 go to college in the United States thus enriching our economy and security.

12

D. San Jose and Silicon Valley Have Benefitted From DACA

13

37. For San Jose, the ability to hire DACA recipients has been extremely beneficial.

14 San Jose, like the rest of the Silicon Valley, has the need for a skilled work force. Competition

15 for employees in San Jose and Santa Clara County is fierce. When DACA was enacted, San

16 Jose was able to hire DACA grantees. San Jose spent time and resources training these

17 employees and they hold jobs vital to the operation of San Jose to this day.

18

38. The City is one of the largest employers in the region, employing workers in a

19 wide variety of positions for the betterment of their community. One of the main ways in which

20 the City has benefited from the DACA program is through its employment relationships with

21 DACA recipients. In particular, the City currently employs DACA recipients as full-time

22 employees, and has expended significant resources, both time and money, in training these

23 employees and relies upon them to provide City services. Because DACA recipients are under

24 no obligation to identify themselves as such when they apply for a job, and they present the

25 same form of work authorization card as other categories of immigrants, the City cannot

26 determine with certainty the total number of DACA recipients it employs.

27

39. San Jose is also home to tech companies, like Cisco and Adobe, who need skilled

28
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workers. These companies also hired DACA recipients as did other Silicon Valley companies,

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1 like Apple, Facebook, and Google, and many employees live in San Jose.

2

40. DACA recipients have special skills that make them especially valuable

3 employees of the City. For example, over ninety-five percent of DACA recipients are bilingual,

4 and extraordinarily valuable skill to the City, which must employ a workforce that can meet its

5 diverse residents’ language needs. This is a critical aspect of ensuring meaningful access to City

6 services, programs, and benefits. Given San Jose’s incredible diversity, bilingual employees are

7 an enormously valuable asset and San Jose would be greatly harmed to lose it. City employment

8 is contingent on valid, lawful work authorization. Any restraints on the DACA program and

9 DACA recipients undoubtedly harm the City.

10

E. The Latest Attempts to Diminish the DACA Program

11

41. Less than six weeks after the Supreme Court’s vacatur of the Duke

12 Memorandum, DHS issued the Wolf Memorandum, announcing it was “considering anew the

13 DACA policy.” Id. at 4. The Memorandum explains that “the DACA policy, at a minimum,

14 presents serious policy concerns that may warrant its full rescission,” offering several policy

15 “concerns.” Id. Those concerns do not constitute a valid, reasoned basis for the changes to

16 DACA outlined in the Wolf Memorandum.

17

42. First, the Memorandum’s assertion that “rescinding DACA entirely may well

18 create a more pressing need for Congress” to enact immigration reforms—i.e., creating political

19 pressure on the legislature—is not a valid basis on which to put hundreds of thousands of DACA

20 recipients at risk. Id.

21

43. The Wolf Memorandum then expresses general concerns about general policies

22 of “non-enforcement.” Id. at 5. His concerns, however, are not supported by any evidence that

23 such policies—policies that have been used by DHS for decades—negatively impact effective

24 immigration enforcement.

25

44. Third, the Wolf Memorandum raises a concern that DACA might encourage

26 “illegal immigration,” especially “illegal immigrations involving children going forward.”

27 may be sending mixed signals about the agency’s “intention to consistently enforce the

28 immigration laws as Congress has written them.” Id. Again, however, Defendant Wolf

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1 provides no empirical evidence supporting the idea that DACA has increased rates of illegal

2 immigration.

3

F. Defendant Wolf is acting unlawfully as Acting Secretary of Homeland

4

Security

5

45. At the time he issued the Wolf Memorandum, Defendant Wolf was unlawfully

6 serving as Acting Secretary of Homeland Security. He was not authorized to exercise the duties

7 of the office of Secretary of Homeland Security pursuant to the United States Constitution, the

8 Homeland Security Act, and the Federal Vacancies Reform Act. As such, he lacked authority to

9 issue to Wolf Memorandum, and the Wolf Memorandum is therefore without force or effect.

10

46. The Appointments Clause of the U.S. Constitution states that the President “shall

11 nominate, and by and with Advice and Consent of the Senate, shall appoint . . . Officers, of the

12 United States.” U.S. Const., art. II, § 2, cl. 2. There has been no Senate-confirmed Secretary of

13 Homeland Security since April 10, 2019, when former Secretary Kirstjen Nielsen resigned. The

14 position was held by CBP Commissioner Kevin McAleenan (without Senate confirmation) until

15 November 13, 2019, when he resigned. Thereafter, Defendant Wolf purported to take office as

16 Acting Secretary of Homeland Secretary.

17

47. The Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345 et seq., lays out

18 how agencies are to be governed while awaiting nomination and confirmation of agency-heads.

19 Defendants failed to follow the FVRA.

20

48. Under the FVRA, the “first assistant to the officer” of a vacant office becomes

21 the acting official by default, 5 U.S.C. § 3345(a)(1). However, the President may also direct a

22 person to fill a vacancy in an acting capacity for no more than 210 days from the date of the

23 vacancy. 5 U.S.C. § 3345(a)(2), 3346. After that period, “the office shall remain vacant”

24 except in certain limited circumstances not applicable here). 5 U.S.C. § 3348(b)(1).

25

49. The Homeland Security Act (“HSA”), 6 U.S.C. § 101 et seq., further details the

26 line of succession that should be followed when the Secretary of Homeland Security position is

27 vacated. Under 6 U.S.C. § 113(a)(1)(A), the Deputy Secretary of Homeland Security is the

28
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“first assistant” for purposes of the FVRA. The Under Secretary for Management of the DHS is

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1 next in line. See 6 U.S.C. § 113(g)(1).

2

50. Defendants violated the Appointments Clause, the FVRA, and the HSA.

3

51. In February 2019, Secretary Nielsen issued an order of succession—HSA

4 Delegation 00106, Revision No. 08.4 (“Nielsen Delegation”). Neither Commissioner

5 McAleenan, nor Defendant Wolf, fall within the proper order of succession under the Nielsen

6 Delegation.

7

52. Commissioner McAleenan’s subsequent attempts to amend the Nielsen

8 Delegation were unlawful and invalid, because he lacked authority to amend the Delegation.

9

53. Under the Nielsen Delegation, and the HSA, the Director of Cybersecurity and

10 Infrastructure Security Agency, Christopher Krebs (who had been confirmed by the Senate),

11 should have been designated as the Acting Secretary of Homeland Security upon Commissioner

12 McAleenan’s resignation.

13

54. Finally, under the FVRA, as of November 7, 2019, the office of Secretary had

14 remained without a Senate-confirmed nominee for more than 210 days, requiring the office to

15 “remain vacant.” 5 U.S.C. § 3348(b)(1).

16

55. Defendant Wolf’s actions as purported Acting Secretary of Homeland Security—

17 including issuance of the Wolf Memorandum, are without force and effect. 5 U.S.C. §

18 3348(d)(1), (2).

19

G. San Jose Has Taken Action to Try to Help Its Immigrant Residents, But Has

20

Limited Ability to Effectuate Change, Except With this Lawsuit

21

56. San Jose’s support of immigrants has been consistent throughout the events

22 giving rise to this case. For example, in response to President Trump’s widespread anti-

23 immigrant rhetoric, in January of 2017, the City Council, approved a plan proposed by Mayor

24 Sam Liccardo to educate immigrants about their rights, helping schools with “safety plans,” and

25 allowing churches to provide sanctuary to undocumented residents if needed. The plan also

26 created “safe spaces” in city-owned facilities, such as libraries, to provide pro-bono legal

27 services.

28 / / /

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1

57. In response to the Defendants’ rescission of DACA, San Jose confirmed its

2 support of its immigrant residents and DACA recipients specifically. Mayor Sam Liccardo, for

3 example, issued the following statement:

4

The Attorney Generals announcement of the Trump Administration's rescission

of DACA abandons 800,000 of America's hardest-working, most patriotic residents.

5

Punting the issue to Congress, without any affirmative leadership to enact a legislative

solution, amounts to a cowardly cop-out, placing the futures of these young women and

6

men in serious jeopardy.

7

To San Jose's tens of thousands of DREAMers, we reiterate: “We've got your

back.” I will seek to challenge the Administration's actions in court, after consulting with

8

our Council and City Attorney regarding our options in the week ahead.

9

History will not forgive Donald Trump for abandoning our DREAMers.

10

58. Santa Clara County Board of Supervisor’s Chair Dave Cortese stated: “Trump’s

11 plan to eliminate DACA is by far his most callous attempt as of yet. The lives, dreams, and

12 futures of thousands of DACA recipients are not a bargaining chip for this Administration to

13 play with. I remain committed to them and to their cause. I urge every DREAMer out there to

14 remain resilient and hopeful. Because together, we will rise.”

15

H. The Federal Government’s Changes to the DACA Program Will Harm San

16

Jose

17

59. The Wolf Memorandum (and the Edlow Directive purportedly implementing it)

18 orders DHS to reject all new initial DACA applications, to reject all advance parole applications

19 absent exceptional circumstances, and to reduce the renewal period for current DACA recipients

20 from two years to one year, applying these changes retroactively to all applications submitted

21 after the Supreme Court’s June 18, 2020 decision.

22

60. These directives already have had and will continue to have an impact, not only

23 on the lives of the DACA recipients, but on San Jose, which has suffered a concrete and specific

24 injury by the changes contemplated by the Wolf and Edlow changes to the program.

25

61. In order for an employer to hire an employee, the employer must confirm that the

26 employee has the legal right to work in the United States. See 8 C.F.R. § 274A.1 et seq. Cities

27 who employ people without the right to work face steep penalties and criminal penalties.

28
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However, it is also illegal for the cities to terminate employees because of their nationality or

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1 immigration status. Thus San Jose is facing the uncertainty of not knowing whether it will be

2 able to continue to retain valuable DACA employees in its work force.

3

62. For example, an employee whose DACA status is up for renewal, must now

4 contend with retroactive application of a law reducing their renewal period by half. Those who

5 are unable to renew their applications and do not have alternative methods for obtaining lawful

6 immigration status, are subject to deportation. This causes considerable uncertainty and

7 instability to San Jose.

8

63. It also causes San Jose harm in that the resources and time spent training and

9 retaining current DACA recipient employees is in effect, wasted. San Jose has expended and

10 will continue to extend time and resources to react to such a loss of experienced employees.

11

64. And in order for San Jose to end the employment relationship with an employee

12 and to make sure that there is a smooth transition without the loss of city services, San Jose must

13 start planning now. San Jose must make preemptive plans to change their workforce in this

14 manner. Defendants’ changes to the program will cost valuable city resources as San Jose

15 scrambles to meet its personnel needs in light of Defendants’ changes, amongst budgeting and

16 bureaucratic constraints unique to such public entities.

17

65. Moreover, prohibiting any new DACA applications divests the City of San Jose

18 of a segment of the workforce it would otherwise be permitted to hire and retain.

19

66. The acts of Defendants have decreased the efficiency of the work performed by

20 San Jose. The impact of Defendants’ changes to DACA recipients has been catastrophic as they

21 face a future of uncertainty and fear. San Jose has also had to expend time and resources to deal

22 with the loss of productivity and employee morale because of the rescission of DACA, which is

23 another injury.1

24

67. Additionally, because of the taxes that DACA recipients pay, San Jose is facing

25 the loss of tax revenues. They have had to start expending time and resources to deal with this

26 loss of funds.

27
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1 See e.g., FPL Food, LLC v. United States Dep't of Agric., 671 F. Supp. 2d 1339, 1358 (S.D. Ga. 2009).

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1 V. CLAIMS FOR RELIEF

2

(All Claims Are Against All Defendants)

3

FIRST CLAIM FOR RELIEF

4

Violation of Administrative Procedure Act, 5 U.S.C. § 706

5

68. Plaintiff re-alleges and incorporate by reference all the allegations set forth in this

6 Amended Complaint.

7

69. The Wolf Memorandum and Edlow Directive are subject to judicial review as

8 final agency actions.

9

70. The APA requires courts to “hold unlawful and set aside” agency action “found

10 to be arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law;

11 contrary to a constitutional right, power, privilege, or immunity; in excess of statutory

12 jurisdiction, authority, or limitations, or short of statutory right; without observance of procedure

13 required by law.” 5 U.S.C. § 706(2).

14

71. The Wolf Memorandum is arbitrary and capricious, an abuse of discretion,

15 contrary to law, and in excess of statutory authority. The Wolf Memorandum and Edlow

16 Directive were issued by and pursuant to the directives of an Acting Secretary who had no

17 authority to so act.

18

72. Moreover, the Wolf Memorandum and Edlow Directive fail to provide a

19 reasoned basis for the actions of DHS, and fail to consider other important aspects and issues,

20 including the reliance interests of the City of San Jose and its employees.

21

73. The Wolf Memorandum and the Edlow Directive implementing it are arbitrary

22 and capricious, contrary to law, and in excess of statutory authority in violation of 5 U.S.C.

23 § 706(2)(A) & (C), and must be held unlawful and set aside.

24

74. San Jose, its employees, and its residents have been harmed and continue to be

25 harmed by these unlawful acts.

26 / / /

27 / / /

28 / / /

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1

SECOND CLAIM FOR RELIEF

2

Violation of Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq.,

3

and Homeland Security Act, 6 U.S.C. §§ 112–13

4

75. Plaintiff re-alleges and incorporates by reference all the allegations set forth in

5 this Amended Complaint.

6

76. The Secretary of Homeland Security must be appointed by the President with the

7 advice and consent of the Senate. 6 U.S.C. § 112(a)(1).

8

77. When the office of the Secretary is vacant, only a valid Acting Secretary may

9 perform the functions or duties of the Secretary.

10

78. Commissioner McAleenan lacked the authority to amend the order of succession

11 which purported to make Defendant Wolf next in line for Acting Secretary for at least three

12 independent reasons.

13

79. First, Commissioner McAleenan improperly assumed the position of Acting

14 Secretary in violation of the order of succession under the HSA, 6 U.S.C. § 113(g)(2), and so

15 was not lawfully serving as Acting Secretary.

16

80. Second, section 113(g)(2) of the HSA authorizes only the Secretary, not an

17 Acting Secretary, to establish a further order of succession to that office.2

18

81. And third, by the time Commissioner McAleenan purported to amend the DHS

19 order of succession, he had already been serving for longer than the FVRA’s limit of 210 days.

20 See 5 U.S.C. § 3346(a). Because the office of the Secretary had been vacant for more than 210

21 days, the FVRA required that it “remain vacant” until the President submitted a nominee to the

22 Senate. Id. § 3348(b)(1).

23

82. Thus, for these reasons, Commissioner McAleenan amended the order of

24 succession without lawful authority, and his actions “have no force or effect,” 5 U.S.C.

25 § 3348(d)(1). Because Defendant Wolf assumed the position of Acting Secretary pursuant to

26
27
28
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2 See Nw. Immgr. Rts. Project v. U.S. Citizenship & Immigr. Servs., No. 19-cv-03283-RDM, slip op. at 38–42, 52 (D.D.C. October 8. 2020) (Moss, J.) (“The Court therefore concludes that ‘Secretary’ in § 113(g)(2) does not include an Acting Secretary, but instead means the Secretary and only the Secretary.”).

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1 Commissioner McAleenan’s unlawful amendments, his service in that role is unlawful under

2 both the HSA and FVRA.

3

83. Besides these defects in Commissioner McAleenan’s authority, by the time

4 Defendant Wolf assumed the role of Acting Secretary on November 13, 2019, the office of the

5 Secretary had been vacant for 217 days, a week past the total 210 days an office can by occupied

6 by an acting official before it must remain vacant under the FVRA. See 5 U.S.C. § 3346(a).

7 And by the time Defendant Wolf issued the Wolf Memorandum on July 28, 2020, the office of

8 the Secretary had been vacant for 475 days and Defendant Wolf had been serving as Acting

9 Secretary for 258 days. For these reasons as well, Defendant Wolf’s assumption of the office

10 and issuance of the Wolf Memorandum were unlawful.

11

84. As a result of these separate and independent legal infirmities, Defendant Wolf

12 was not lawfully serving in the office of Acting Secretary, no officer could perform the

13 functions of Acting Secretary, and no officer had legal authority to issue a memorandum even

14 temporarily rescinding or modifying key components of the DACA program.

15

85. Because the Wolf Memorandum was issued by an officer unlawfully serving as

16 Acting Secretary, it “shall have no force and effect” and “may not be ratified.” 5 U.S.C.

17 § 3348(d)(1), (d)(2). Defendant Wolf’s First and Second Ratification Memoranda are therefore

18 contrary to the plain terms of the FVRA and cannot remedy the legal defects of the Wolf

19 Memorandum. Even if the plain text of the FVRA did not bar ratification, Defendant Wolf

20 could not have issued his Ratification Memoranda because, as already explained, the office of

21 the Secretary has been vacant for far more than 210 days and must “remain vacant, 5 U.S.C.

22 § 3346(a); the FVRA prohibits nominees from serving in an acting capacity the role for which

23 they have been nominated, see id. § 3345(b)(1); and, in any event, the Gaynor Order did not and

24 could not cure the defects in Wolf’s unlawful assumption of the role of Acting Secretary.

25

86. Because the Wolf Memorandum was issued by an unlawfully designated officer

26 under the HSA and the FVRA, it must be held to have “no force or effect.” 5 U.S.C. § 3348(d).

27

87. San Jose, its employees, and its residents have been harmed and continue to be

28 harmed by these unlawful acts.

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

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1

THIRD CLAIM FOR RELIEF

2

Violation of the Appointments Clause, U.S. Const., art. II, § 2, cl. 2

3

88. Plaintiffs re-allege and incorporate by reference all the allegations set forth in this

4 Amended Complaint.

5

89. At the time he issued the Wolf Memorandum, Defendant Wolf was unlawfully

6 serving as Acting Secretary of Homeland Security. He was not authorized to exercise the duties

7 of the office of Secretary of Homeland Security pursuant to the United States Constitution, the

8 Homeland Security Act, and the Federal Vacancies Reform Act. As such, he lacked authority to

9 issue to Wolf Memorandum, and the Wolf Memorandum is therefore without force or effect.

10

90. Defendants violated the Appointments Clause, the FVRA, and the HSA.

11

91. In February 2019, Secretary Nielsen issued an order of succession—HSA

12 Delegation 00106, Revision No. 08.4 (“Nielsen Delegation”). Neither Commissioner

13 McAleenan, nor Defendant Wolf, fall within the proper order of succession under the Nielsen

14 Delegation.

15

92. Commissioner McAleenan’s subsequent attempts to amend the Nielsen

16 Delegation were unlawful and invalid, because he lacked authority to amend the Delegation.

17

93. Under the Nielsen Delegation, and the HSA, the Director of Cybersecurity and

18 Infrastructure Security Agency, Christopher Krebs (who had been confirmed by the Senate),

19 should have been designated as the Acting Secretary of Homeland Security upon Commissioner

20 McAleenan’s resignation.

21

94. Finally, under the FVRA, as of November 7, 2019, the office of Secretary had

22 remained without a Senate-confirmed nominee for more than 210 days, requiring the office to

23 “remain vacant.” 5 U.S.C. § 3348(b)(1).

24

95. Defendant Wolf’s actions as purported Acting Secretary of Homeland Security—

25 including issuance of the Wolf Memorandum, are without force and effect. 5 U.S.C. §

26 3348(d)(1), (2).

27

96. Defendant Wolf was not serving legally as the Acting Secretary of Homeland

28
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Security, and therefore did not have legal authority to issue the Wolf Memorandum or to appoint

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1 Defendant Edlow to serve as Deputy Director for Policy of USCIS.

2

97. The Wolf Memorandum and Edlow Directive are invalid and must be vacated,

3 because they were issued by officials without the authority to do so.

4

98. San Jose, its employees, and its residents have been harmed and continue to be

5 harmed by these unlawful acts.

6 VI. PRAYER FOR RELIEF

7 WHEREFORE, Plaintiff respectfully requests that the Court grant the following relief:

8

A. Vacate and set aside the Wolf Memorandum, Edlow Directive, and any other

9 action taken by Defendants in furtherance of the full or partial rescission of the DACA program;

10

B. Declare that the Wolf Memorandum and Edlow Directive and Defendants’

11 actions in connection therewith were issued in violation of the Homeland Security Act and the

12 Federal Vacancies Reform Act and are void and without legal force or effect;

13

C. Declare that the Wolf Memorandum and Edlow Directive were issued were

14 issued in violation of the Appointments Clause of the U.S. Constitution;

15

D. Declare that the Wolf Memorandum, and Edlow Directive and Defendants’

16 actions in connection therewith are arbitrary, capricious, an abuse of discretion, otherwise not in

17 accordance with law, and without observance of procedure required by law in violation of 5

18 U.S.C. §§ 702–06;

19

E. Enjoin and restrain Defendants from implementing or enforcing the Wolf

20 Memorandum, Edlow Directive, and from fully or partially rescinding DACA and from taking

21 any other action that is not in compliance with applicable law;

22

F. Further relief as necessary to remedy the injuries caused by the unlawful actions

23 taken by Defendants;

24

G. Award reasonable attorneys’ fees and costs; and

25

26 / / /

27 / / /

28 / / /

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1

H. Award Plaintiff such further and additional relief as the Court deems just and

2 proper.

3 Dated: November 2, 2020
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COTCHETT, PITRE & McCARTHY, LLP
By: /s/ Justin T. Berger JOSEPH W. COTCHETT JUSTIN T. BERGER BRIAN DANITZ TAMARAH P. PREVOST
OFFICE OF THE CITY ATTORNEY
By: /s/ Nora Frimann NORA FRIMANN
Attorneys for Plaintiff City of San Jose

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AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF; Case No. 3:17-cv-05329-WHA

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Case 3:17-cv-05329-WHA Document 103 Filed 11/02/20 Page 24 of 24

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ATTESTATION OF FILING

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I, Justin T. Berger, hereby attest, pursuant to Northern District of California, Local Rule

3 5-1(i)(3) that concurrence to the filing of this document has been obtained from each signatory

4 hereto.

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/s/ Justin T. Berger

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JUSTIN T. BERGER Attorney for Plaintiffs City of San Jose

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, in her official capacity as President of the University of California,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellants.

No. 18-15068
D.C. No. 3:17-cv-05211-WHA

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REGENTS OF THE UNIV. OF CAL. V. USDHS

STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA,
Defendants-Appellants.

No. 18-15069
D.C. No. 3:17-cv-05235-WHA

CITY OF SAN JOSE, Plaintiff-Appellee,
v.
DONALD J. TRUMP, President of the United States, in his official capacity; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA,
Defendants-Appellants.

No. 18-15070
D.C. No. 3:17-cv-05329-WHA

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DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellants.

No. 18-15071
D.C. No. 3:17-cv-05380-WHA

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COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; JEFFERSON B. SESSIONS III, Attorney General; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY,
Defendants-Appellants.

No. 18-15072
D.C. No. 3:17-cv-05813-WHA

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REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, in her official capacity as President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ; COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellants.

No. 18-15128
D.C. Nos. 3:17-cv-05211-WHA 3:17-cv-05235-WHA 3:17-cv-05329-WHA 3:17-cv-05380-WHA 3:17-cv-05813-WHA

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REGENTS OF THE UNIV. OF CAL. V. USDHS

REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, in her official capacity as President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellees.

No. 18-15133
D.C. Nos. 3:17-cv-05211-WHA 3:17-cv-05235-WHA 3:17-cv-05329-WHA 3:17-cv-05380-WHA 3:17-cv-05813-WHA

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DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; NORMA RAMIREZ; JIRAYUT LATTHIVONGSKORN; COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellees.

No. 18-15134
D.C. Nos. 3:17-cv-05211-WHA 3:17-cv-05235-WHA 3:17-cv-05329-WHA 3:17-cv-05380-WHA 3:17-cv-05813-WHA
OPINION

Appeal from the United States District Court for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted May 15, 2018 Pasadena, California
Filed November 8, 2018

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REGENTS OF THE UNIV. OF CAL. V. USDHS

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw; Concurrence by Judge Owens

SUMMARY*

Immigration
In an action challenging the Department of Homeland Security’s rescission of Deferred Action for Childhood Arrivals (DACA), the panel affirmed the district court’s grant of preliminary injunctive relief, and affirmed in part the district court’s partial grant and partial denial of the government’s motion to dismiss for failure to state a claim.
Begun in 2012, DACA allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action—a revocable decision by the government not to deport an otherwise removable person from the country. In 2014, Secretary of Homeland Security Jeh Johnson issued a memorandum that announced the related Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA. All of the policies outlined in the 2014
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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Johnson memorandum were enjoined nationwide in a district court order upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court. After a new presidential administration took office, Acting Secretary of Homeland Security Elaine Duke issued a memorandum in September 2017 rescinding DACA.
Suits were filed in the Northern District of California by the Regents of the University of California, a group of states led by California, the City of San Jose, the County of Santa Clara and Service Employees International Union Local 521, and a group of individual DACA recipients led by Dulce Garcia. The cases were consolidated, and the district court ordered the government to complete the administrative record. Seeking to avoid providing additional documents, the government filed a petition for mandamus, which this court denied. The government petitioned the Supreme Court for the same mandamus relief; the Court did not reach the merits of the administrative record dispute, but instructed the district court to rule on the government’s threshold arguments challenging reviewability of its rescission decision. The district court entered a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients, and the court partially granted and partially denied the government’s motion to dismiss.
The panel held that neither the Administrative Procedure Act nor the Immigration and Nationality Act (INA) barred judicial review of the decision to rescind DACA. With respect to the APA, the panel reviewed the cases of Heckler v. Chaney, 470 U.S. 821 (1985), Montana Air Chapter No. 29 v. Federal Labor Relations Authority, 898 F.2d 753 (9th Cir. 1990), and City of Arlington v. FCC, 569 U.S. 290 (2013). The panel concluded that, where the agency’s decision is based not on an exercise of discretion, but instead

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on a belief that any alternative choice was foreclosed by law because the agency lacked authority, the APA’s “committed to agency discretion” bar to reviewability, 5 U.S.C. § 701(a)(2), does not apply. The panel also concluded that the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. Accordingly, the panel determined that the rescission was within the realm of agency actions reviewable under the APA.
With respect to the INA, the panel rejected the government’s contention that review was barred by 8 U.S.C. § 1252(g), which precludes judicial review of “any cause or claim by or on behalf of any alien arising from the decision or action of the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders.” The panel explained that, under Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999), the rescission does not fall within the three discrete actions mentioned in 8 U.S.C. § 1252(g).
Having concluded that neither the APA nor the INA precludes judicial review, the panel turned to the merits of the preliminary injunction and considered whether the agency was correct in concluding that DACA was unlawful. The Attorney General’s primary bases for concluding that DACA was illegal were that the program was “effectuated . . . without proper statutory authority” and that it amounted to “an unconstitutional exercise of authority.” More specifically, the Attorney General asserted that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA” in the Fifth Circuit litigation. The panel considered the DAPA litigation, comparing aspects of DAPA and DACA, and concluded that that DACA was a permissible exercise of executive discretion,

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notwithstanding the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s statutory authority. Thus, the panel concluded that, because the Acting Secretary was incorrect in her belief that DACA was illegal and had to be rescinded, plaintiffs are likely to succeed in demonstrating that the rescission must be set aside under the APA as arbitrary and capricious.
The panel next concluded that the district court did not abuse its discretion in issuing a nationwide injunction, noting that such relief is commonplace in APA cases, promotes uniformity in immigration enforcement, and is necessary to provide the plaintiffs here with complete redress.
Finally, addressing the district court’s order granting in part and denying in part the government’s motion to dismiss, the court concluded that the district court properly dismissed plaintiffs’ APA notice-and-comment claim, and their claim that the DACA rescission violates their substantive due process rights. The panel further concluded that the district court also properly denied the government’s motion to dismiss plaintiffs’ APA arbitrary-and-capricious claim, their claim that the new information-sharing policy violates their due process rights, and their claim that the DACA rescission violates their right to equal protection.
Concurring in the judgment, Judge Owens wrote that, as he believed the Plaintiffs’ Equal Protection claim has some likelihood of success on the merits, he concurred in the judgment affirming the preliminary injunction. However, Judge Owens disagreed with the majority’s conclusion that otherwise unreviewable agency action is reviewable when the agency justifies its action by reference to its understanding of its jurisdiction. Therefore, Judge Owens would hold that § 701(a)(2) precludes the court from

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subjecting DACA’s rescission to arbitrary-and-capricious review. Judge Owens would also affirm the preliminary injunction and remand for consideration whether Plaintiffs have demonstrated a likelihood of success on the merits of their Equal Protection claim.
As for the government’s appeal from the motions to dismiss, Judge Owens dissented from the majority’s holding to affirm the district court’s denial of the motion to dismiss Plaintiffs’ APA arbitrary-and-capricious claim. However, he concurred in the majority’s holding to affirm the district court’s dismissal of Plaintiffs’ APA notice-and-comment claim. He also concurred in the judgment to affirm the district court’s ruling on Plaintiffs’ Due Process claims. He also agreed with the majority’s decision to affirm the district court’s denial of the motion to dismiss the Equal Protection claim and hold that the Equal Protection claim offers an alternative ground to affirm the preliminary injunction.

COUNSEL
Hashim M. Mooppan (argued), Deputy Assistant Attorney General; Thomas Pulham, Abby C. Wright, and Mark B. Stern, Appellate Staff; Alex G. Tse, Acting United States Attorney; Chad A. Readler, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Michael J. Mongan (argued), Deputy Solicitor General; Samuel P. Siegel, Associate Deputy Solicitor General; James F. Zahradka II, Deputy Attorney General; Michael L. Newman, Supervising Deputy Attorney General; Edward C. DuMont, Solicitor General; Xavier Becerra, Attorney

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General; Office of the Attorney General, San Francisco, California; for Plaintiff-Appellee State of California.

Susan P. Herman, Deputy Attorney General; Janet T. Mills, Attorney General; Office of the Attorney General, Augusta, Maine; for Plaintiff-Appellee State of Maine.

Jacob Campion, Assistant Attorney General; Lori Swanson, Attorney General; Office of the Attorney General, St. Paul, Minnesota; for Plaintiff-Appellee State of Minnesota.

Leah J. Tullin, Assistant Attorney General; Steven M. Sullivan, Solicitor General; Brian E. Frosh, Attorney General; Attorney General’s Office, Baltimore, Maryland; for Plaintiff-Appellee State of Maryland.

Jeffrey Michael Davidson (argued), Breanna K. Jones, David S. Watnick, Erika Douglas, and Mónica Ramírez Almadani, Covington & Burling LLP, San Francisco, California; Ivano M. Ventresca, Megan A. Crowley, Alexander A. Berengaut, Mark H. Lynch, and Robert A. Long, Covington & Burling LLP, Washington, D.C.; for Plaintiff-Appellee The Regents of the University of California, et al.

Brian Danitz, Tamarah Prevost, and Justin T. Berger, Cotchett Pitre & McCarthy LLP, Burlingame, California, for Plaintiff-Appellee City of San José.

Mark D. Rosenbaum (argued), Malhar Shah, and Judy London, Public Counsel, Los Angeles, California; Haley S. Morrisson, Matthew S. Rozen, and Nicole A. Saharsky, Gibson Dunn & Crutcher LLP, Washington, D.C.; Kelsey J. Helland, Jonathan N. Soleimani, Kirsten Galler, Ethan D. Dettmer, and Theodore J. Boutrous Jr., Gibson Dunn &

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Crutcher LLP, Los Angeles, California; Luis Cortes Romera, Barrera Legal Group PLLC, Kent, Washington; Erwin Chemerinsky, Berkeley, California; Laurence H. Tribe, Cambridge, Massachusetts; Leah M. Litman, Irvine, California; for Plaintiffs-Appellees Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Virdiana Chabolla Mendoza, Norma Ramirez, and Jirayut Latthivongskorn.

Andrew Kushner, Eric P. Brown, and Stacey M. Leyton, Altshuler Berzon LLP, San Francisco, California, for Plaintiff-Appellee County of Santa Clara and Service Employees International Union Local 521.

Marcelo Quiñones, Laura S. Trice, Greta S. Hansen, and James R. Williams, Office of the County Counsel, County of Santa Clara, San Jose, California, for Plaintiff-Appellee County of Santa Clara.

Jessica Levin, Melissa Lee, Lorraine K. Bannai, and Robert S. Chang, Ronald A. Peterson Law Clinic, Seattle University School of Law, Seattle, Washington, for Amici Curiae 42 Historians and the Fred T. Korematsu Center for Law and Equality.

Leo Gertner, Deborah L. Smith, and Nicole G. Berner, Service Employees International Union, Washington, D.C.; Deepak Gupta, Gupta Wessler PLLC, Washington, D.C.; David J. Strom, American Federation of Teachers, Washington, D.C.; Judith Rivlin, American Federation of State, County, and Municipal Employees, Washington, D.C.; Patricia M. Shea, Communications Workers of America, Washington, D.C.; Bradley Raymond, International Brotherhood of Teamsters, Washington, D.C.; Joseph E. Kolick Jr., International Union of Painters and Allied Trades, Hanover, Maryland; Mario Martínez,

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Martínez Aguilasocho & Lynch APLC, Bakersfield, California; for Amici Curiae Service Employees International Union; American Federation of Teachers; American Federation of State, County and Municipal Employees; Communications Workers of America; International Brotherhood of Teamsters; International Union of Painters and Allied Trades; and United Farm Workers of America.

Geoffrey S. Brounell and Peter Karanjia, Davis Wright Tremaine LLP, Washington, D.C., for Amicus Curiae United We Dream.

Sean Goldhammer, Lubna A, Alam, Jason Walta, Emma Leheny, and Alice O’Brien, National Education Association, Washington, D.C.; Andra M. Donovan, San Diego Unified School District, San Diego, California; Abhas Hajela, Capitol Advisors Group LLC, Sacramento, California; Eric E. Stevens, Girard Edwards Stevens & Tucker LLP, Sacramento, California; Kathryn M. Sheffield, California Faculty Association, Sacramento, California; Glenn Rothner, Rothner Segall & Greenstone, Pasadena, California; D. Michael Ambrose and Elaine M. YamaGarcia, California School Boards Association Education Legal Alliance, Sacramento, California; Jean Shin and Laura P. Juran, California Teachers Association, Burlingame, California; Vibiana M. Andrade, Los Angeles County Office of Education, Downey, California; Devora Navera Reed and David Holmquist, Los Angeles Unified School District, Los Angeles, California; Sonja H. Trainor and Francisco Negrón, National School Boards Association, Alexandria, Virginia; Michael L. Smith, Oakland Unified School District, Oakland, California; Raoul Bozio, Sacramento City Unified School District, Sacramento, California; for Amici Curiae Public Education Groups.

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Caryn C. Lederer, Chirag G. Badlani, and Matthew J. Piers, Hughes Socol Piers Resnick & Dym Ltd., Chicago, Illinois; Daniel B. Rice and Joshua A. Geltzer, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center, Washington, D.C.; for Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders.

Zachary Kolodin, Michael N. Fresco, Adeel A. Mangi, and Steven A. Zalesin, Patterson Belknap Webb & Tyler LLP, New York, New York; Juvaria Khan, Sirine Shebaya, and Jonathan Smith, Muslim Advocates, Washington, D.C.; for Amici Curiae 119 Religious Organizations.

Jennifer J. Yun, Ishan Bhabha, Lindsay C. Harrison, and Thomas J. Perrelli, Jenner & Block LLP, Washington, D.C., for Amici Curiae Institutions of Higher Education.

Jennifer B. Sokoler and Anton Metlitsky, O’Melveny & Myers LLP, New York, New York, for Amicus Curiae Eighteen Universities.

Lauren R. Goldman and Karen W. Lin, Mayer Brown LLP, New York, New York; Andrew J. Pincus, Mayer Brown LLP, Washington, D.C.; Ari Holzblatt, Patrick J. Carome, and Seth Waxman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; for Amici Curiae 102 Companies and Associations.

John-Paul S. Deol and Daniel J. McCoy, Fenwick & West LLP, Mountain View, California; Mark S. Ross, James L. McGinnis, and Neil A.F. Popović, Sheppard Mullin Richter & Hampton LLP, San Francisco, California; for Amicus Curiae The Bar Association of San Francisco.

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Juan P. Valdivieso, Boies Schiller Flexner LLP, Oakland, California; Albert Giang, Boies Schiller Flexner LLP, Los Angeles, California; J. Wells Harrell and Joshua Riley, Boies Schiller Flexner LLP, Washington, D.C.; for Amici Curiae Former Federal Immigration and Homeland Security Officials.

Kaitland M. Kennelly and William J. Schwartz, Cooley LLP, New York, New York, for Amici Curiae Partnership for Educational Justice, DelawareCAN: The Delaware Campaign for Achievement Now, HawaiiKidsCAN, NewMexicoKidsCAN, and Virginia Excels.

Matthew Scherb, Michael Dundas, Valerie L. Flores, Leela A. Kapur, James P. Clark, and Michael N. Feuer, City Attorney, Office of the City Attorney, Los Angeles, California; Donna R. Ziegler, Alameda County Counsel, Oakland, California; Anne L. Morgan, City Attorney, Austin, Texas; Eugene O’Flaherty, City Corporation Counsel, Boston, Massachusetts; Cheryl Watson Fisher, City Solicitor, Chelsea, Massachusetts; Kimberly M. Foxx, States Attorney for Cook County, Chicago, Illinois; Jeremy Berry, City Attorney, Atlanta, Georgia; Farimah F. Brown, City Attorney, Berkeley, California; Nancy E. Glowa, City Solicitor, Cambridge, Massachusetts; Edward N. Siskel, City Corporation Counsel, Chicago, Illinois; Larry E. Casto, City Attorney, Dallas, Texas; Kristin M. Bronson, City Attorney of the City and County of Denver, Denver, Colorado; Gregory L. Thomas, City Attorney, Gary, Indiana; Ronald C. Lewis, City Attorney, Houston, Texas; Eleanor M. Dilkes, City Attorney, Iowa City, Iowa; Jennifer Vega-Brown, City Attorney, Las Cruces, New Mexico; Karl A. Racine, Attorney General, District of Colombia, Washington, D.C.; Donna Y. L. Leong, Corporation Counsel, Honolulu, Hawaii; Aaron O. Lavine, City

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Attorney, Ithaca, New York; Daniel T. Satterberg, King County Prosecuting Attorney, Seattle, Washington; Charles Parkin, City Attorney, Long Beach, California; Margaret L. Carter, O’Melveny & Myers LLP, Los Angeles, California; Susan Segal, City Attorney, Minneapolis, Minnesota; John Rose Jr., Corporation Counsel, New Haven, Connecticut; Barbara J. Parker, City Attorney, Oakland, California; Tracy P. Reeve, City Attorney, Portland, Oregon; Michael P. May, City Attorney, Madison, Wisconsin; Charles J. McKee, Monterey County Counsel, Salinas, California; Zachary W. Carter, City Corporation Counsel, New York, New York; Marcel S. Pratt, Acting City Solicitor, Philadelphia, Pennsylvania; Jeffrey Dana, City Solicitor, Providence, Rhode Island; Timothy R. Curtin, City Corporation Counsel, Rochester, New York; Dennis J. Herrera, City Attorney for the City and County of San Francisco, San Francisco, California; Lane Dilg, City Attorney, Santa Monica, California; Francis X. Wright Jr., City Solicitor, Somerville, Massachusetts; Matthew D. Ruyak, Interim City Attorney, Sacramento, California; Kelley A. Brennan, City Attorney, Santa Fe, New Mexico; Peter S. Holmes, City Attorney; Seattle, Washington; Mike Rankin, City Attorney, Tucson, Arizona; Michael Jenkins, West Hollywood City Attorney, Jenkins & Hogan LLP, Manhattan Beach, California; John Daniel Reaves, General Counsel, The U.S. Conference of Mayors, Washington, D.C.; for Amici Curiae 40 Cities and Counties, The National League of Cities, and The United States Conference of Mayors.

Jennifer Chang Newell and Katrina L. Eiland, ACLU Foundation Immigrants’ Rights Project, San Francisco, California; David Hausman, Michael K.T. Tan, and Lee Gelernt, ACLU Foundation Immigrants’ Rights Project, New York, New York; Julia Harumi Mass, ACLU Foundation of Northern California, San Francisco,

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California; Ahilan T. Arulanantham, ACLU Foundation of Southern California, Los Angeles, California; David Loy, ACLU Foundation of San Diego & Imperial Counties, San Diego, California; for Amici Curiae American Civil Liberties Union Foundation, ACLU Foundation of Northern California, ACLU Foundation of Southern California, and ACLU Foundation of San Diego & Imperial Counties.

Claire M. Blakey, Johanna S. Dennehy, and Harry Lee, Steptoe & Johnson LLP, Washington, D.C.; Christopher W. Smith, Steptoe & Johnson, Los Angeles, California; for Amici Curiae Immigration Law Scholars.

Avi Zevin, Jack Lienke, and Richard L. Revesz, Institute for Policy Integrity, New York, New York, for Amicus Curiae Institute for Policy Integrity at New York University School of Law.

Anna-Rose Mathieson and Ben Feuer, California Appellate Law Group LLP, San Francisco, California; Daniel Hemel, Chicago, Illinois; Seth Davis, Irvine, California; for Amici Curiae Twenty-Four Law Professors.

Philicia Hill, Dorian Spence, Dariely Rodriguez, and Jon Greenbaum, The Lawyers’ Committee for Civil Rights Under Law, Washington, D.C.; Sameer P. Sheikh, Martin L. Saad, John F. Cooney, and William D. Coston, Venable LLP, Washington, D.C.; for Amici Curiae The Lawyers’ Committee for Civil Rights Under Law, Anti-Defamation League, and Social Justice Organizations.

Joan R. Li, Kara C. Wilson, Monique R. Sherman, and Maureen P. Alger, Cooley LLP, Palo Alto, California, for Amici Curiae Legal Services Organizations.

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Mary Kelley Persyn, Persyn Law & Policy, San Francisco, California, for Amici Curiae American Professional Society on the Abuse of Children and California Professional Society on the Abuse of Children.

Christopher J. Hajec, Immigration Reform Law Institute, Washington, D.C., for Amicus Curiae The Immigration Reform Law Institute.

OPINION
WARDLAW, Circuit Judge:
It is no hyperbole to say that Dulce Garcia embodies the American dream. Born into poverty, Garcia and her parents shared a San Diego house with other families to save money on rent; she was even homeless for a time as a child. But she studied hard and excelled academically in high school. When her family could not afford to send her to the top university where she had been accepted, Garcia enrolled in a local community college and ultimately put herself through a four-year university, where she again excelled while working full-time as a legal assistant. She then was awarded a scholarship that, together with her mother’s life savings, enabled her to fulfill her longstanding dream of attending and graduating from law school. Today, Garcia maintains a thriving legal practice in San Diego, where she represents members of underserved communities in civil, criminal, and immigration proceedings.
On the surface, Dulce Garcia appears no different from any other productive—indeed, inspiring—young American. But one thing sets her apart. Garcia’s parents brought her to this country in violation of United States immigration laws

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when she was four years old. Though the United States of America is the only home she has ever known, Dulce Garcia is an undocumented immigrant.
Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions. Known as Deferred Action for Childhood Arrivals, or DACA, the program allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action—a revocable decision by the government not to deport an otherwise removable person from the country. DACA also allows recipients to apply for authorization to work in this country legally, paying taxes and operating in the aboveground economy. Garcia, along with hundreds of thousands of other young people, trusting the government to honor its promises, leapt at the opportunity.
But after a change in presidential administrations, in 2017 the government moved to end the DACA program. Why? According to the Acting Secretary of Homeland Security, upon the legal advice of the Attorney General, DACA was illegal from its inception, and therefore could no longer continue in effect. And after Dulce Garcia—along with other DACA recipients and affected states, municipalities, and organizations—challenged this conclusion in the federal courts, the government adopted the position that its fundamentally legal determination that DACA is unlawful is unreviewable by the judicial branch.

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With due respect for the Executive Branch, we disagree. The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose “province and duty” it is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The government’s decision to rescind DACA is subject to judicial review. And, upon review, we conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA—at least as justified on this record—is arbitrary, capricious, or otherwise not in accordance with law. We therefore affirm the district court’s grant of preliminary injunctive relief.1
I.
A. History of Deferred Action
The central benefit available under the DACA program is deferred action. Because much of this dispute revolves around the legitimacy of that practice, we begin by reviewing the Executive Branch’s historical use of deferred action.
The basic concept is a simple one: deferred action is a decision by Executive Branch officials not to pursue deportation proceedings against an individual or class of individuals otherwise eligible for removal from this country. See 6 Charles Gordon et al., Immigration Law & Procedure § 72.03[2][h] (2018) (“To ameliorate a harsh and unjust outcome, the immigration agency may decline to institute proceedings, may terminate proceedings, or may decline to

1 We also affirm in part the district court’s partial grant and partial denial of the government’s motion to dismiss for failure to state a claim.

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execute a final order of deportation. This commendable exercise in administrative discretion . . . is now designated as deferred action.”); Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n.3 (9th Cir. 2001) (“Deferred action refers to an exercise of administrative discretion by the [immigration agency] under which [it] takes no action to proceed against an apparently deportable alien based on a prescribed set of factors generally related to humanitarian grounds.” (internal quotation marks omitted)); Hiroshi Motomura, Immigration Outside the Law 29 (2014) (noting that “deferred action is usually granted only for limited periods of time and does not provide a path to lawful permanent resident status or citizenship”).
Unlike most other forms of relief from deportation, deferred action is not expressly grounded in statute. It arises instead from the Executive’s inherent authority to allocate resources and prioritize cases. Cf. 6 U.S.C. § 202(5) (charging the Secretary of Homeland Security with “[e]stablishing national immigration enforcement policies and priorities”). As such, recipients of deferred action “enjoy no formal immigration status.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 964 (9th Cir. 2017) (Brewer II). But despite its non-statutory origins, Congress has historically recognized the existence of deferred action in amendments to the Immigration and Nationality Act (INA), as well as other statutory enactments. See 8 U.S.C. § 1227(d)(2) (“The denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for . . . deferred action[.]”); REAL ID Act of 2005, Pub. L. No. 109-13, § 202(c)(2), 119 Stat. 231, 313 (2005) (listing proof of “approved deferred action status” as sufficient “evidence of lawful status” for the issuance of a driver’s license). The Supreme Court has also recognized deferred action by name, describing the

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Executive’s “regular practice (which ha[s] come to be known as ‘deferred action’) of exercising discretion for humanitarian reasons or simply for its own convenience.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84 (1999) (AADC). Thus, “it is well settled that the Secretary [of Homeland Security] can exercise deferred action.” Brewer II, 855 F.3d at 967.
Official records of administrative discretion in immigration enforcement date at least back to the turn of the twentieth century, not long after the enactment of the nation’s first general immigration statute in 1882. See Act of Aug. 3, 1882, ch. 376, 22 Stat. 214. A 1909 Department of Justice circular regarding statutorily authorized denaturalization instructed that “as a general rule, good cause is not shown for the institution of proceedings . . . unless some substantial results are to be achieved thereby in the way of betterment of the citizenship of the country.” U.S. Dep’t of Justice, Circular Letter No. 107 (Sept. 20, 1909) (quoted in Memorandum from Sam Bernsen, Gen. Counsel, INS, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion at 4 (Jul. 15, 1976) (Bernsen Memorandum)).
The government’s exercise of deferred action in particular first came to light in the 1970s, as a result of Freedom of Information Act litigation over the government’s efforts to deport John Lennon and Yoko Ono, apparently based on Lennon’s “British conviction for marijuana possession.” Motomura, supra, at 28; see generally Shoba Sivaprasad Wadhia, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases 2–27 (2015). Then known as “nonpriority status,” the practice had been observed in secret within the former Immigration and Naturalization Service (INS) since at least

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the 1950s, but INS officials had publicly denied its existence. See Leon Wildes, The Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of the Freedom of Information Act, 14 San Diego L. Rev. 42, 52–53 (1976); Wadhia, supra, at 16. After the Lennon case revealed the practice, the INS issued its first public guidance on the use of deferred action, stating that “[i]n every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for nonpriority.” Immigration and Naturalization Service, Operations Instructions § 103.1(a)(1)(ii) (1975) (quoted in Wadhia, supra, at 17). Although the 1975 guidance was rescinded in 1997, DHS officials continue to apply the same humanitarian factors in deciding whether to grant an individual deferred action. 6 Gordon et al., supra, § 72.03[2][h] & nn.133–34; see also AADC, 525 U.S. at 484 n.8.
In addition to case-by-case adjudications, the Executive Branch has frequently applied deferred action and related forms of discretionary relief programmatically, to entire classes of otherwise removable noncitizens. Indeed, the Congressional Research Service has compiled a list of twenty-one such “administrative directives on blanket or categorical deferrals of deportation” issued between 1976 and 2011. Andorra Bruno et al., Cong. Research Serv., Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 20–23 (July 13, 2012); see also id. at 9 (“The executive branch has provided blanket or categorical deferrals of deportation numerous times over the years.”).

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To take one early example, in 1956 President Eisenhower extended immigration parole to over thirty thousand Hungarian refugees who were otherwise unable to immigrate to the United States because of restrictive quotas then in existence. See White House Statement on the Termination of the Emergency Program for Hungarian Refugees (Dec. 28, 1957). The power to parole—that is, to allow a noncitizen physically to enter the country, while treating that person as “at the border” for purposes of immigration law—is established by statute, but the version of the INA in existence when President Eisenhower acted did not explicitly authorize programmatic exercises of the parole power.2 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 212(d)(5), 66 Stat. 163, 188. See generally 6 Gordon et al., supra, § 62.01. Subsequent presidents made use of similar categorical parole initiatives. Wadhia, supra, at 30.
Another salient example is the Family Fairness program, established by the Reagan Administration and expanded under President George H.W. Bush. The Immigration Reform and Control Act of 1986 (IRCA) had provided a pathway to legal status for hundreds of thousands of undocumented noncitizens, but did not make any provision for their close relatives unless those individuals separately qualified under the Act’s criteria. See generally 3 Gordon et al., supra, § 38.06. President Reagan’s INS Commissioner interpreted IRCA not to authorize immigration benefits for

2 Indeed, there is evidence that “Congress originally intended that parole would be used on a case-by-case basis on behalf of individual aliens.” Cong. Research Serv., Review of U.S. Refugee Resettlement Programs & Policies 8 (1980); see also S. Rep. No. 89-748, at 17 (1965). The statute was amended in 1980 to expressly prohibit categorical grants of parole. Refugee Act of 1980, Pub. L. No. 96-212, § 203(f), 94 Stat. 102, 108; see 8 U.S.C. § 1182(d)(5).

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anyone outside the statutory criteria, but nevertheless exercised executive discretion to defer the deportation of the minor children of noncitizens legalized under the statute. Alan C. Nelson, Comm’r, INS, Legalization & Family Fairness: An Analysis (Oct. 21, 1987). And in 1990, the INS instituted “significant liberalizations” of the policy by granting one-year periods of extended voluntary departure to children and spouses of individuals legalized under IRCA who could establish admissibility, continuous residency, and a clean criminal record. INS Reverses Family Fairness Policy, 67 No. 6 Interpreter Releases 153 (Feb. 5, 1990); see also 3 Gordon et al., supra, § 38.06. Contemporary estimates by INS officials of the number of people potentially eligible ranged as high as 1.5 million.3 See Immigration Act of 1989 (Part 2): Hearings Before the Subcomm. on Immigration, Refugees & Int’l Law of the H. Comm. on the Judiciary, 101st Cong. 49, 56 (1990) (testimony of Gene McNary, Comm’r, INS). Extended voluntary departure, the mechanism through which these individuals were allowed to remain in the United States is, like deferred action, a creature of executive discretion not specifically authorized by statute. See Hotel & Rest. Emps. Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc) (opinion of Mikva, J.).
Since then, the immigration agency has instituted categorical deferred action programs for self-petitioners under the Violence Against Women Act; applicants for T

3 There is some controversy surrounding this number. See generally Unconstitutionality of Obama’s Executive Actions on Immigration: Hearing Before the House Comm. on the Judiciary, 114th Cong. 84–85 (2015) (written testimony of Professor Stephen H. Legomsky). But even the lowest reported contemporary estimate was that 100,000 people would actually benefit from the program, indicating a major policy initiative. See INS Reverses Family Fairness Policy, supra.

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and U visas (which are issued to victims of human trafficking and of certain crimes, respectively); foreign students unable to fulfill their visa requirements after Hurricane Katrina; and widowed spouses of United States citizens who had been married less than two years. None of these deferred action programs was expressly authorized by statute at the time they were initiated.
B. The DACA Program
DACA was announced in a June 15, 2012, memorandum from Secretary of Homeland Security Janet Napolitano,4 entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” Secretary Napolitano explained that the nation’s immigration laws “are not designed . . . to remove productive young people to countries where they may not have lived or even speak the language,” especially where “many of these young people have already contributed to our country in significant ways,” and, because they were brought here as children, “lacked the intent to violate the law.” She therefore determined that “[p]rosecutorial discretion, which is used in so many other areas, is especially justified here.”
The Napolitano memorandum thus laid out the basic criteria of the DACA program, under which a noncitizen will be considered for a grant of deferred action if he or she:
• came to the United States under the age of sixteen;

4 Napolitano is a party to this appeal in her current capacity as President of the University of California.

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• has continuously resided in the United States for at least five years preceding [June 15, 2012] and is present in the United States on [June 15, 2012];
• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• has not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, nor otherwise poses a threat to national security or public safety; and
• is not above the age of thirty [on June 15, 2012].5
DACA applicants must submit extensive personal information to DHS, along with fees totaling nearly $500. Applicants also submit to biometric screening in which they are photographed and fingerprinted, enabling extensive biographical and biometric background checks. If those checks come back clean, each application is then evaluated for approval by DHS personnel on a case-by-case basis.
If approved into the DACA program, an applicant is granted a renewable two-year term of deferred action— again, “a form of prosecutorial discretion whereby the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the United States.” Brewer II, 855 F.3d at 967. In addition to the deferral of removal itself, pre-existing DHS regulations allow all deferred-action recipients to apply for employment

5 This criterion became known as the “age cap.”

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authorization, enabling them to work legally and pay taxes. 8 U.S.C. § 1324a(h)(3) (empowering the Executive Branch to authorize the employment of noncitizens); 8 C.F.R. § 274a.12(c)(14) (providing that “[a]n alien who has been granted deferred action” is eligible for work authorization upon a showing of “economic necessity for employment”). Indeed, “DACA recipients are required to apply for employment authorization, in keeping with the Executive’s intention that DACA recipients remain ‘productive’ members of society.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062 (9th Cir. 2014) (Brewer I) (emphasis in original). Finally, DHS does not consider deferred-action recipients, including those benefitting from DACA, to accrue “unlawful presence” for purposes of the INA’s reentry bars.6 8 U.S.C. § 1182(a)(9)(B)(ii); see Brewer I, 757 F.3d at 1059.

6 8 U.S.C. §§ 1182(a)(9)(B)(i)(I)–(II) establish a three-year and tenyear bar on admission after specified periods of “unlawful presence.” Additionally, 8 U.S.C. § 1182(a)(9)(C) provides a permanent bar on admission for immigrants who have accrued an aggregate of more than one year of “unlawful presence” and who later attempt to cross the border clandestinely. As the district court noted below, DHS “excludes recipients of deferred action from being ‘unlawfully present’ because their deferred action is considered a period of stay authorized by the government.” Regents of Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1039 (N.D. Cal. 2018). As DHS noted in its DACA Frequently Asked Questions (FAQs), “[f]or purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect.” Importantly, however, “deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.”
The FAQs are attached as an exhibit to the Regents complaint, and are cited pervasively throughout the Garcia complaint. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (explaining that for

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In an attempt to build on the success of the DACA program, in 2014 Secretary of Homeland Security Jeh Johnson issued a separate memorandum that both announced the related Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA by (1) removing the age cap, (2) extending the term of deferred-action and related work-authorization grants from two to three years, and (3) moving up the cutoff date by which an applicant must have been in the United States to January 1, 2010. Twenty-six states challenged this extension in federal court, arguing that DAPA is unconstitutional. All of the policies outlined in the Johnson memorandum were enjoined nationwide in a district court order upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court. See United States v. Texas, 136 S. Ct. 2271 (2016); Texas v. United States, 809 F.3d 134 (5th Cir. 2015); Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015); see also Neil v. Biggers, 409 U.S. 188, 192 (1972) (affirmance by an equally divided court has no precedential value). The original DACA program remained in effect.
In 2017, a new presidential administration took office, bringing with it a change in immigration policy. On February 20, 2017, then-Secretary of Homeland Security John Kelly issued a memorandum that set out the

purposes of a motion to dismiss, “[c]ertain written instruments attached to pleadings may be considered part of the pleading. Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s claim.” (internal citation omitted)).

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administration’s new enforcement priorities, stating that “the Department no longer will exempt classes or categories of removable aliens from potential enforcement.” However, the memorandum explicitly left DACA and DAPA in place. In a second memorandum issued June 15, 2017, after “consider[ing] a number of factors, including the preliminary injunction in the [Texas] matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities,” Secretary Kelly rescinded DAPA as an “exercise of [his] discretion.”
Then, on June 28, 2017, Texas Attorney General Ken Paxton wrote to United States Attorney General Jefferson B. Sessions III threatening that if the federal government did not rescind DACA by September 5, 2017, Paxton would amend the complaint in the Texas litigation to challenge DACA as well as DAPA.
On September 4, 2017, the day before Paxton’s deadline, Attorney General Sessions sent his own letter to Acting Secretary of Homeland Security Elaine Duke. The Attorney General’s letter “advise[d] that the Department of Homeland Security . . . should rescind” the DACA memorandum based on his legal opinion that the Department lacked statutory authority to have created DACA in the first place. He wrote:
DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’[s] repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.

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The Attorney General further opined that “[b]ecause the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.”
The very next day, following the Attorney General’s directive, Acting Secretary Duke issued a memorandum rescinding DACA. The memorandum begins with a “Background” section that covers DACA, DAPA, the Texas litigation, Secretary Kelly’s previous memoranda, Texas Attorney General Paxton’s threat, and the Attorney General’s letter. Then, in the section titled “Rescission of the June 15, 2012 DACA Memorandum,” the Duke memorandum states:
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.

The Duke memorandum further states that although DHS would stop accepting initial DACA requests effective immediately, the agency would provide a one-month window in which renewal applications could be filed for current DACA beneficiaries whose benefits were set to expire before March 5, 2018. It also states that DHS would not terminate existing grants of deferred action under DACA

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“solely based on the directives in this memorandum.” Thus, beginning on March 5, 2018, each DACA recipient’s grant of deferred action would be allowed to expire at the end of its two-year term. As of September 4, 2017—the day before the rescission—approximately 689,800 individuals were enrolled in DACA.
C. Procedural History
The rescission of DACA instantly sparked litigation across the country, including the cases on appeal here. Suits were filed in the Northern District of California by the Regents of the University of California, a group of states led by California, the City of San Jose, the County of Santa Clara and Service Employees International Union Local 521, and a group of individual DACA recipients led by Dulce Garcia. The complaints included claims that the rescission was arbitrary and capricious under the Administrative Procedure Act (APA); that it was a substantive rule requiring notice-and-comment rulemaking under the APA; that it violated the due process and equal protection rights protected by the U.S. Constitution; and that DHS was equitably estopped from using the information provided on DACA applications for enforcement purposes. The cases were consolidated before Judge William Alsup in the District Court for the Northern District of California and proceeded to litigation.
On October 17, 2017, the district court ordered the government to complete the administrative record, holding that the record proffered by the government was incomplete in several respects. Seeking to avoid providing additional documents, the government filed a petition for mandamus. In arguing its mandamus petition, the government took the position that the legality of the rescission should stand or fall based solely on the reasons and the record already provided

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by the government. We denied the mandamus petition, stating that “the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible, as the district court concluded.” In re United States, 875 F.3d 1200, 1206 (9th Cir. 2017) (footnotes omitted).
The government next petitioned the Supreme Court for the same mandamus relief; the Court did not reach the merits of the administrative record dispute, but instead instructed the district court to rule on the government’s threshold arguments challenging reviewability of its rescission decision before requiring the government to provide additional documents. In re United States, 138 S. Ct. 443, 445 (2017). Thus, the administrative record in this case still consists of a scant 256 publicly available pages, roughly three-quarters of which are taken up by the three published judicial opinions from the Texas litigation.
Returning to the district court, the government moved to dismiss the consolidated cases on jurisdictional grounds and for failure to state a claim, while the plaintiffs moved for a preliminary injunction. The district court granted the request for a nationwide preliminary injunction, holding that most of the plaintiffs had standing;7 that neither the APA nor the INA barred judicial review; and that plaintiffs were likely to succeed on their claim that the decision to rescind DACA was arbitrary and capricious. The district court therefore entered a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients.

7 Two states were dismissed from the case with leave to amend. That decision is not challenged on appeal.

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In a separate order, the court partially granted and partially denied the government’s motion to dismiss. The court dismissed plaintiffs’ notice-and-comment and Regulatory Flexibility Act claims; a due process claim premised on an entitlement to deferred action; and the equitable estoppel claim. The court denied the motion as to plaintiffs’ equal protection claim and a due process claim premised on an alleged change in DHS’s informationsharing policy.
The district court certified the issues addressed in both its orders for interlocutory review under 28 U.S.C. § 1292(b). We granted the government’s petition for permission to appeal the orders. Plaintiffs cross-appealed, asserting that the district court erroneously dismissed their notice-and-comment and due process claims.
II.
“We review the district court’s decision to grant or deny a preliminary injunction for abuse of discretion.” Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017) (quoting Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam)). Within this inquiry, “[w]e review the district court’s legal conclusions de novo, the factual findings underlying its decision for clear error.” Id. (quoting K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir. 2015)). A district court’s decision on a motion to dismiss for lack of subject matter jurisdiction or for failure to state a claim is also reviewed de novo. See, e.g., Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 963 (9th Cir. 2017).

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III.
The threshold question in this case is in many ways also the most pivotal: is Acting Secretary Duke’s decision to rescind the DACA program reviewable by the courts at all? The government contends that both the APA and the INA bar judicial review; we address each statute in turn.
A. Reviewability under the APA
The APA provides for broad judicial review of agency action: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Thus, as a general matter, the Supreme Court has consistently articulated “a ‘strong presumption’ favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)); see also, e.g., Lincoln v. Vigil, 508 U.S. 182, 190 (1993) (“[W]e have read the APA as embodying a ‘basic presumption of judicial review.’”) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)).
However, the APA also forecloses judicial review under its procedures to the extent that “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).8 “This

8 This bar does not affect a plaintiff’s ability to bring freestanding constitutional claims. See Webster v. Doe, 486 U.S. 592, 601–05 (1988); Padula v. Webster, 822 F.2d 97, 101 (D.C. Cir. 1987) (“[E]ven where agency action is ‘committed to agency discretion by law,’ review is still available to determine if the Constitution has been violated.” (quoting Doe v. Casey, 796 F.2d 1508, 1517–18 n.33 (1986), aff’d in part, rev’d in part on other grounds, Webster v. Doe, 486 U.S. 592 (1988))).

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is a very narrow exception” that comes into play only “in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (internal quotation marks omitted), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also Heckler v. Chaney, 470 U.S. 821, 830 (1985) (“[R]eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”).
In Heckler v. Chaney, the Supreme Court analyzed this exception in considering “the extent to which a decision of an administrative agency to exercise its ‘discretion’ not to undertake certain enforcement actions is subject to judicial review under the [APA].” 470 U.S. at 823. In Chaney, the Commissioner of the Food and Drug Administration (FDA) declined to take investigatory and enforcement action against state prison officials’ use of drugs, which had been FDA-approved for medical use, in human executions. Id. at 823–24. A group of prisoners on death row had petitioned the FDA, arguing that using the drugs to execute humans was unlawful because they were only approved for medical use, and not for executions. Id. Responding to the petition, the Commissioner questioned whether the FDA had jurisdiction to prohibit the use of drugs in executions, but went on to conclude that even if the agency did have jurisdiction, it would “decline to exercise it under [the agency’s] inherent discretion to” do so. Id. at 824. The inmates then sued the FDA, attempting to invoke the APA’s framework for judicial review. Id. at 825.
The Supreme Court held that the FDA Commissioner’s discretionary decision not to enforce the Food, Drug, and Cosmetic Act against state prison officials was unreviewable

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under the APA. Chaney, 470 U.S. at 837–38. The Court identified a pre-APA “tradition” under which “an agency’s decision not to prosecute or enforce . . . is a decision generally committed to an agency’s absolute discretion,” and concluded that “the Congress enacting the APA did not intend to alter that tradition.” Id. at 831–32. As the Court summed up its holding, “[t]he general exception to reviewability provided by § 701(a)(2) for action ‘committed to agency discretion’ remains a narrow one, but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise.” Id. at 838 (citation omitted). That is, the normal presumption in favor of judicial review is reversed when the agency action in question is a refusal to enforce the substantive law.
Importantly for present purposes, the Court explicitly left open the question whether “a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction” might be reviewable notwithstanding this general rule. Chaney, 470 U.S. at 833 n.4 (“[W]e express no opinion on whether such decisions would be unreviewable under § 701(a)(2) . . . .”).9 This reservation makes perfect

9 Chaney’s footnote 4 reads in its entirety:
We do not have in this case a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction. Nor do we have a situation where it could justifiably be found that the agency has “consciously and expressly adopted a general policy” that is so extreme as to amount to an abdication of its statutory responsibilities. See, e.g., Adams v. Richardson, 156 U.S. App. D.C. 267, 480 F.2d 1159 (1973) (en banc). Although we express no opinion on whether such decisions would be unreviewable under

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sense. It is one thing to read the APA’s exception for “agency action [] committed to agency discretion by law” as including the Executive’s discretionary decisions to decline enforcement, given a pre-existing legal tradition that had treated those decisions as unreviewable. It would be quite another to say that an agency’s non-discretionary belief that it lacked the power to enforce the law was similarly “committed to agency discretion.” 5 U.S.C. § 701(a)(2); see Chaney, 470 U.S. at 833 n.4 (“[W]e note that in those situations [involving a belief that the agency lacked discretion,] the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion.’”).
Several years after Chaney, our court directly addressed the question that the Supreme Court had left open. In Montana Air Chapter No. 29 v. Federal Labor Relations Authority, a union representing civilian Air National Guard employees filed an unfair labor practice charge against the National Guard Bureau, but the Federal Labor Relations Authority (FLRA) refused to issue a complaint. 898 F.2d 753, 755 (9th Cir. 1990). The opinion letters issued by FLRA’s general counsel indicated that he had “determined, according to his interpretation of the statutes and regulations, that he lacked jurisdiction to issue an unfair labor practice complaint” under the circumstances. Id. at 757.
Acknowledging Chaney’s rule that “[a]n agency’s decision not to take enforcement action . . . is presumed to

§ 701(a)(2), we note that in those situations the statute conferring authority on the agency might indicate that such decisions were not “committed to agency discretion.”
Heckler v. Chaney, 470 U.S. 821, 833 n.4 (emphasis added).

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be immune from judicial review,” we noted that the Supreme Court had nevertheless “suggested that discretionary nonenforcement decisions may be reviewable when” the refusal to enforce is based on a supposed lack of jurisdiction. Id. at 756 (citing Chaney, 470 U.S. at 833 n.4). We took the next logical step, holding that Chaney’s presumption of nonreviewability “may be overcome if the refusal is based solely on the erroneous belief that the agency lacks jurisdiction.” Id. at 754. Because “the General Counsel’s decision not to issue an unfair labor practice complaint was based on his belief that he lacked jurisdiction to issue such a complaint,” we proceeded to “examine the General Counsel’s statutory and regulatory interpretations to determine if his belief that he lacked jurisdiction was correct.” Id. at 757.10
The final piece of the APA reviewability puzzle is the Supreme Court’s decision in City of Arlington v. FCC, 569 U.S. 290 (2013). There, the Court was faced with the question whether an agency’s determination of its own jurisdiction is entitled to the same deference as any other agency interpretation under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Writing for the Court, Justice Scalia explained in no uncertain terms that in the context of administrative agencies, “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a mirage.” City of

10 We reject the government’s reading of Montana Air, under which the Chaney presumption would be overcome only if the agency action is based on a belief in a lack of jurisdiction, and the refusal to enforce is so extreme as to become an abdication of the agency’s statutory responsibilities. Both Chaney and Montana Air make clear that these are two independent exceptions to the narrow rule of nonreviewability, not two elements of a single test. Chaney, 470 U.S. at 833 n.4; Montana Air, 898 F.2d at 756.

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Arlington, 569 U.S. at 297. With respect to courts, the jurisdictional/nonjurisdictional divide is a real and consequential one, because “[a] court’s power to decide a case is independent of whether its decision is correct . . . . Put differently, a jurisdictionally proper but substantively incorrect judicial decision is not ultra vires.” Id. But the same is not true with respect to agencies: “Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.” Id. Thus, the Court concluded, “[t]he reality, laid bare, is that there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its ‘jurisdiction’) and its exceeding authorized application of authority that it unquestionably has.” Id. at 299 (emphasis in original).11
To summarize, Chaney holds that an agency’s refusal to enforce the substantive law is presumptively unreviewable because that discretionary nonenforcement function is “committed to agency discretion” within the meaning of the APA. Montana Air builds upon the question left open by Chaney’s footnote four, explaining that a nonenforcement decision is reviewable notwithstanding Chaney if the decision was based solely on the agency’s belief that it lacked jurisdiction to act. And City of Arlington teaches that there is no difference between an agency that lacks

11 The opinion is replete with equally emphatic—and equally quotable—formulations of the same point. See, e.g., City of Arlington, 569 U.S. at 301 (“In sum, judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.’ Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.”).

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jurisdiction to take a certain action, and one that is barred by the substantive law from doing the same; the question “is always, simply, whether the agency has stayed within the bounds of its statutory authority.” City of Arlington, 569 U.S. at 297 (emphasis omitted). The rule that emerges is this: an agency’s nonenforcement decision is outside the scope of the Chaney presumption—and is therefore presumptively reviewable—if it is based solely on a belief that the agency lacked the lawful authority to do otherwise. That is, where the agency’s decision is based not on an exercise of discretion, but instead on a belief that any alternative choice was foreclosed by law, the APA’s “committed to agency discretion” bar to reviewability, 5 U.S.C. § 701(a)(2), does not apply.
This rule is fully consistent with the Supreme Court’s decision in ICC v. Brotherhood of Locomotive Engineers (BLE), which rejected the notion that “if the agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.” 482 U.S. 270, 283 (1987). We have no quarrel with that statement in the abstract, but as applied it simply begs the question: is the agency action in question “otherwise unreviewable”?
The BLE case concerned the reviewability of the Interstate Commerce Commission’s denial of a motion to reopen proceedings on grounds of material error. Id. at 280. The Supreme Court held that category of agency action presumptively unreviewable because it “perceive[d] . . . a similar tradition of nonreviewability” to the one it had found in Chaney for nonenforcement decisions. Id. at 282. In reaching its holding, the Court rejected an argument that there was nevertheless “law to apply”—and that therefore the action was not committed to agency discretion—as the agency’s order had discussed the legal merits at length. Id.

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at 280–81. What mattered was that the agency’s “formal action” was one for which a tradition of nonreviewability was discernable, regardless of how the agency explained its action.12 Id.
BLE thus stands for the proposition that if a particular type of agency action is presumptively unreviewable, the fact that the agency explains itself in terms that are judicially cognizable does not change the categorical rule. Fair enough. But the categorical rule announced in Chaney does not encompass nonenforcement decisions based solely on the agency’s belief that it lacked power to take a particular course; instead, the Court explicitly declined to extend its rule to that situation. Chaney, 470 U.S. at 833 n.4. And in Montana Air, we held that such decisions are reviewable. 898 F.2d at 754. BLE’s statement about “otherwise unreviewable” agency decisions, 482 U.S. at 283, therefore has no application to the category of agency action at issue here.
We believe the analysis laid out above follows necessarily from existing doctrine. And, just as importantly,

12 The Court gave as an example a prosecutor’s refusal to institute criminal proceedings based on her “belief . . . that the law will not sustain a conviction.” BLE, 482 U.S. at 283. Such a belief is not equivalent to a conclusion that the government lacked the power to institute a prosecution in the first place. For one colorful example, in Bond v. United States, prosecutors made the “surprising” decision to charge “an amateur attempt by a jilted wife to injure her husband’s lover” under the federal statute implementing the international Convention on Chemical Weapons. 134 S. Ct. 2077, 2083–84 (2014). While the Court ultimately interpreted the statute not to encompass the charged conduct, id. at 2093– 94, no one suggested that the government’s aggressive decision to institute the prosecution was itself ultra vires.

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this approach also promotes values fundamental to the administrative process.
First, the Montana Air rule does not impermissibly encroach on executive discretion; to the contrary, it empowers the Executive. If an agency head is mistaken in her assessment that the law precludes one course of action, allowing the courts to disabuse her of that incorrect view of the law does not constrain discretion, but rather opens new vistas within which discretion can operate. That is, if an administrator chooses option A for the sole reason that she believes option B to be beyond her legal authority, a decision from the courts putting option B back on the table allows a reasoned, discretionary policy choice between the two courses of action. And if the agency’s view of the law is instead confirmed by the courts, no injury to discretion results because the status quo is preserved.
Moreover, allowing judicial review under these circumstances serves the critical function of promoting accountability within the Executive Branch—not accountability to the courts, but democratic accountability to the people. Accountability in this sense is fundamental to the legitimacy of the administrative system: although they are “unelected . . . bureaucrats,” City of Arlington, 569 U.S. at 305, the heads of cabinet-level departments like DHS “are subject to the exercise of political oversight and share the President’s accountability to the people.” Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 886 (1991). Indeed, the Constitution’s “Appointments Clause was designed to ensure public accountability for . . . the making of a bad appointment . . . .” Edmond v. United States, 520 U.S. 651, 660 (1997); see also Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2251– 52 (2001) (“[A]ccountability” is one of the two “principal

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values that all models of administration must attempt to further.”); 1 Richard J. Pierce, Jr., Administrative Law Treatise 114 (5th ed. 2010) (“Agencies are politically accountable because the President is accountable for the actions of agencies.”).
This democratic responsiveness is especially critical for agencies exercising prosecutorial functions because, as Justice Scalia explained in his oft-cited dissent in Morrison v. Olson, “[u]nder our system of government, the primary check against prosecutorial abuse is a political one.” 487 U.S. 654, 728 (1988) (Scalia, J., dissenting). This check works because “when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration.” Id. at 728–29. In other words, when prosecutorial functions are exercised in a manner that is within the law but is nevertheless repugnant to the sensibilities of the people, “the unfairness will come home to roost in the Oval Office.” Id. at 729.
But public accountability for agency action can only be achieved if the electorate knows how to apportion the praise for good measures and the blame for bad ones. Without knowing the true source of an objectionable agency action, “the public cannot ‘determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.’” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 498 (2010) (quoting The Federalist No. 70, at 476 (Alexander Hamilton) (Jacob E. Cooke ed. 1961)). In then-Professor Kagan’s words, “the degree to which the public can understand the sources and levers of bureaucratic action” is “a fundamental precondition of accountability in administration.” Kagan, supra, at 2332.

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The Montana Air rule promotes accountability by ensuring that the public knows where to place blame for an unpopular measure. When an agency justifies an action solely with an assertion that the law prohibits any other course, it shifts responsibility for the outcome from the Executive Branch to Congress (for making the law in question) or the courts (for construing it). If the Executive is correct in its interpretation of the law, then the public is correct to blame the other two branches for any resulting problems. But if the Executive is wrong, then it avoids democratic accountability for a choice that was the agency’s to make all along. Allowing the judiciary—the branch ultimately responsible for interpreting the law, see Marbury, 5 U.S. (1 Cranch) at 177—to review such decisions prevents this anti-democratic and untoward outcome. As Judge Bates of the District Court for the District of Columbia aptly put the point in confronting the very issue we face here, “an official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her. She may escape political accountability or judicial review, but not both.” NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 2018).
We therefore must determine whether the Acting Secretary’s decision to end DACA was based solely on a belief that the program was unlawful, such that the Chaney presumption does not apply.13

13 Because we take this doctrinal course, we need not decide whether the rescission of DACA would be reviewable absent the exception reflected in Montana Air and Chaney’s footnote four. But we do note several points. First, a literal reading of Chaney’s language would not even encompass the decision to rescind DACA, since Chaney by its own terms applies only to “agency decisions not to undertake enforcement action.” 470 U.S. at 832 (emphasis added). Nowhere does the opinion

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We take Attorney General Sessions literally at his word when he wrote to Acting Secretary Duke that “DACA was effectuated . . . without proper statutory authority,” and that DACA “was an unconstitutional exercise of authority by the Executive Branch.” These are the reasons he gave for advising Acting Secretary Duke to rescind DACA. We

suggest the broader proposition that any decision simply related to enforcement should be presumed unreviewable. Our court’s dicta in Morales de Soto v. Lynch, 824 F.3d 822, 827 n.4 (9th Cir. 2016), which addressed a completely separate issue of jurisdiction under the INA, is not to the contrary. Thus, to the extent that the Montana Air exception might not seem a perfect fit for the rescission of DACA—which was not exactly a decision not to enforce—the Chaney presumption itself shares the same defect. There is no daylight between the Chaney rule and the Montana Air exception in terms of the type of agency action to which they apply. So if the rescission of DACA were outside the Montana Air exception by virtue of not being strictly a nonenforcement decision, it would also fall outside the Chaney presumption of unreviewability in the first place.
Second, the D.C. Circuit has developed a line of cases explaining that while Chaney bars judicial review of a “single-shot nonenforcement decision,” on the other hand, “an agency’s adoption of a general enforcement policy is subject to review.” OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998) (quoting Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 674–75 (D.C. Cir. 1994)); see also Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); Nat’l Treasury Emps. Union v. Horner, 854 F.2d 490, 496–97 (D.C. Cir. 1988).
Thus, every one of the four courts that has considered the question has held that the rescission of DACA is reviewable under the APA, although each has employed slightly different reasoning for that conclusion. See NAACP v. Trump, 298 F. Supp. 3d 209, 226–34 (D.D.C. 2018); Casa de Md. v. DHS, 284 F. Supp. 3d 758, 769–70 (D. Md. 2018); Regents of Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1029–31 (N.D. Cal. 2018) (decision below); Batalla Vidal v. Duke, 295 F. Supp. 3d 127, 147–52 (E.D.N.Y. 2017).

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therefore agree with the district court that the basis for the rescission was a belief that DACA was unlawful, and that the discretionary “litigation risk” rationale pressed by the government now is a mere post-hoc rationalization put forward for purposes of this litigation.14 Acting Secretary Duke’s September 5, 2017, rescission memorandum contains exactly one sentence of analysis:
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated.

In the next sentence, the Acting Secretary went on to announce the rescission itself:
In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.

The easy rejoinder to the government’s insistence that the Acting Secretary rescinded DACA due to “litigation risks” is that the Acting Secretary did not mention “litigation risks” as a “consideration.” And both “consideration[s]”

14 After hundreds of pages of briefing and over an hour of oral argument, it remains less than clear how “litigation risk” differs from a substantive belief that DACA is illegal. We take the term to refer to a concern that DACA would be abruptly enjoined, regardless of whether the program was illegal or not. Of course, such a concern is not independent of an on-the-merits assessment of DACA’s legality.

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actually enumerated by the Acting Secretary are most naturally read as supporting a rationale based on DACA’s illegality. The “ongoing litigation” referenced is of course Texas v. United States, in which the Fifth Circuit upheld a preliminary injunction against the related DAPA policy, and the Supreme Court affirmed by an equally divided vote.15 See Texas, 136 S. Ct. 2271 (2016); Texas, 809 F.3d 134 (5th Cir. 2015). The “rulings” in that case are propositions of law—taken alone, they are more readily understood as supporting a legal conclusion (DACA is illegal) than a pragmatic one (DACA might be enjoined). The pragmatic interpretation requires extra analytical steps (someone might sue to enjoin DACA, and they might win) that are entirely absent from the list of factors that the Acting Secretary stated she was “taking into consideration” in making her decision. Acting Secretary Duke easily could have included “the prospect of litigation challenging DACA” in her list of considerations; had she done so, then perhaps the reference to the Texas litigation could be read as supporting a practical worry about an injunction.16 Absent that, however, the mention of the courts’ “rulings” is best read as referencing the courts’ legal conclusions.
Attorney General Sessions’s September 4, 2017, letter likewise focuses on the supposed illegality of DACA, rather

15 This conclusion is only bolstered by the fact that the government’s production of the “administrative record” in this case includes the entirety of the three published judicial opinions in the Texas litigation.
16 The Acting Secretary did reference Texas Attorney General Ken Paxton’s threat to amend the Texas suit to include DACA, but she did so in the “Background” section of her memorandum. If anything, the inclusion of the threat in the background portion renders its omission from the list of factors the Acting Secretary was actually “[t]aking into consideration” all the more stark.

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than any alleged “litigation risk.” Its substantive paragraph states
DACA was effectuated . . . without proper statutory authority and with no established end-date, after Congress’[s] repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.

(emphases added).
These sentences unmistakably reflect the Attorney General’s belief that DACA was illegal and therefore beyond the power of DHS to institute or maintain. The letter goes on to opine that “[b]ecause the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA [in the Texas litigation], it is likely that potentially imminent litigation would yield similar results with respect to DACA.” But in the context of the full paragraph, the reference to “similar results” is best read not as an independent reason for rescinding DACA, but as a natural consequence of DACA’s supposed illegality—which is the topic of the paragraph as a whole. In the words of Judge Garaufis of the District Court for the Eastern District of New York, that reference “is too thin a reed to bear the weight of Defendants’ ‘litigation risk’ argument.” Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 429 (E.D.N.Y. 2018).
In any event, the Attorney General’s letter is relevant only to the extent it illuminates whether Acting Secretary Duke—the official who actually rescinded the DACA program—did so as an exercise of her discretion or because she understood her hand to be forced by the law. In this

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connection, it is helpful to compare the operative language used by Acting Secretary Duke to rescind DACA with that used by her predecessor, Secretary John Kelly, to rescind DAPA just months before. In his June 15, 2017, memorandum, Secretary Kelly wrote:
After consulting with the Attorney General, and in the exercise of my discretion in establishing national immigration enforcement policies and priorities, I hereby rescind the November 20, 2014 memorandum [that established DAPA].

(emphasis added). Placed alongside Acting Secretary Duke’s language, the parallels—and the differences—are stark. Acting Secretary Duke’s memorandum reads:
In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum [that established DACA].

(emphasis added).
The obvious similarities between the two passages strongly suggest that Acting Secretary Duke modeled her language after that of Secretary Kelly’s memo. And indeed, we know that the Acting Secretary considered the Kelly memorandum in reaching her decision, because the government has told us so. See Petition for Writ of Mandamus, In re United States, No. 17-72917 (9th Cir. Oct. 20, 2017) (stating that the government’s proffered administrative record in this case, which includes the Kelly memorandum, “consist[s] of the non-privileged materials considered by the Acting Secretary in reaching her decision

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to rescind the DACA policy”); id. at 18 (taking the position that only materials personally reviewed by the Acting Secretary herself, not by subordinates, are “considered” by the Secretary).
Given that Acting Secretary Duke hewed so closely to Secretary Kelly’s language in general, it is appropriate to draw meaning from the one major difference between the two sentences: Secretary Kelly exercised his “discretion” in ending DAPA; Acting Secretary Duke merely exercised her “authority.” Cf., e.g., Jama v. ICE, 543 U.S. 335, 357 (2005) (“[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.”). The point is that with the example set by the Kelly memorandum in front of her, Acting Secretary Duke clearly would have known how to express that the rescission was a discretionary act— if that were indeed the case.17 Furthermore, the nearverbatim language of the two rescission memoranda suggests that the Acting Secretary adopted the majority of Kelly’s wording, but actively rejected describing the DACA rescission as an act of discretion. This difference in language cuts strongly against any suggestion that the rescission was discretionary.
The government counters that the memorandum “focused from beginning to end principally on litigation concerns, not the legality of DACA per se.” But as the State plaintiffs point out, the memorandum’s references to these

17 Secretary Kelly’s references to the factors he considered, which included obviously discretionary considerations such as “our new immigration enforcement priorities,” provided a further model for how to describe a discretionary decision, which Acting Secretary Duke also chose not to follow.

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supposed “litigation concerns” were limited to a simple summary of the Texas litigation’s procedural history; appeared only in the “Background” section of the memorandum; and were not referenced in the Acting Secretary’s statement of what she was “[t]aking into consideration.” See also note 16, supra.
The government also asserts that because the Acting Secretary wrote that DACA “should” rather than must be ended, she did not view herself as bound to act. But even on its face, “should” is fully capable of expressing obligation or necessity. See, e.g., Should, New Oxford American Dictionary (3d ed. 2010) (“used to indicate obligation, duty, or correctness”); cf. Should, Garner’s Dictionary of Legal Usage (3d ed. 2011) (“should . . . is sometimes used to create mandatory standards”). The Acting Secretary’s use of “should” instead of “must” cannot overcome the absence of any discussion of potential litigation or the “risks” attendant to it from the rescission memorandum’s statement of reasons, and the discrepancy between the rescission of DAPA as an act of “discretion” and the rescission of DACA as an act of “authority.”
Finally, the government takes a quote from the Supreme Court to the effect that courts should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974), and contorts it into an argument that the district court’s “narrow reading of the Acting Secretary’s rationale is hardly the only one that ‘may reasonably be discerned’ from the Acting Secretary’s memorandum.” But Bowman is about finding a reviewable rationale in an agency’s action versus finding no articulation of that rationale. Bowman does not say—and it certainly does not logically follow—that a court must ignore the most

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natural reading of an agency’s statement of reasons just because it may also be “reasonably susceptible” to a (less compelling) reading that the government would prefer. The government is in effect asking the court to defer to agency counsel’s post-hoc rationalization, as long as there is some reading of the rescission memorandum—never mind how strained—that would support it. Bowman does not require this incongruous result.
We agree with the district court that the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. Under Montana Air and Chaney’s footnote four, this conclusion brings the rescission within the realm of agency actions reviewable under the APA. Unless the INA itself deprives the courts of jurisdiction over this case, we must proceed to evaluate the merits of plaintiffs’ arbitrary-and-capricious claim.
B. Jurisdiction under the INA
The government contends that the INA stripped the district court of its jurisdiction in a provision that states:
Except as provided in this section [which sets out avenues of review not applicable here] . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

8 U.S.C. § 1252(g).

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The Supreme Court has explicitly held that this section “applies only to three discrete actions that the [Secretary] may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” AADC, 525 U.S. at 482 (emphasis in original). As the Court put it, “[i]t is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting.” Id.
The government attempts to expand Section 1252(g) to encompass this case in two ways. First, it points out that the AADC Court read that provision as Congress’s effort to shield executive decisions not to grant deferred action from review outside the procedures prescribed by the INA. The Court quoted a treatise describing the practice of deferred action and the litigation that would result when the government declined to grant deferred action: “Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts . . . .” Id. at 484–85 (quoting 6 Charles Gordon et al., Immigration Law and Procedure § 72.03[2][h] (1998)). Having reviewed these developments, the Court concluded: “Section 1252(g) seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations. . . .” Id. at 485.
The government argues that AADC’s reasoning—and therefore Section 1252(g)—applies to the rescission of DACA, which is itself in some sense a “no deferred action” decision. It seems quite clear, however, that AADC reads Section 1252(g) as responding to litigation over individual “no deferred action” decisions, rather than a programmatic

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shift like the DACA rescission. For example, the treatise passage AADC quotes to set the scene for Congress’s action refers explicitly to “[e]fforts to challenge the refusal to exercise [deferred action] on behalf of specific aliens. . . .” Id. (emphasis added). And in any case, the holding of AADC was explicit: “The provision applies only to [the] three discrete actions” mentioned in the statute. Id. at 482.
The government’s fallback argument is thus to cast the rescission of DACA as an initial “action” in the agency’s “commence[ment] [of] proceedings.” 8 U.S.C. § 1252(g). But AADC specifically rejected a broad reading of the three discrete actions listed in Section 1252(g). “[D]ecisions to open an investigation, [or] to surveil the suspected violator” are not included in Section 1252(g)’s jurisdictional bar, AADC, 525 U.S. at 482, even though these actions are also “part of the deportation process,” id., and could similarly be construed as incremental steps toward an eventual “commence[ment] [of] proceedings,” 8 U.S.C. § 1252(g).
Indeed, in a case closely on point, our court rejected the application of Section 1252(g) and allowed to proceed a challenge to INS guidance narrowly interpreting the terms of a “one-time legalization program” for undocumented immigrants. See Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1141 (9th Cir. 2000). We noted that “[a]s interpreted by the Supreme Court in [AADC], [Section 1252(g)] applies only to the three specific discretionary actions mentioned in its text, not to all claims relating in any way to deportation proceedings,” and held that the challenge was not barred. Id. at 1150. The panel did not appear concerned by the fact that it was possible to conceptualize that policy choice by INS as an ingredient in a subsequent decision to commence proceedings against particular individuals.

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The government cites no cases applying the Section 1252(g) bar to a programmatic policy decision about deferred action; the two cases it does cite were challenges to individual “no deferred action” decisions—that is, they fall exactly within Section 1252(g) as interpreted by the Court in AADC. See Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016); Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999). Especially in light of the “‘strong presumption in favor of judicial review of administrative action’ governing the construction of jurisdiction-stripping provisions of IIRIRA,”18 ANA Int’l, Inc. v. Way, 393 F.3d 886, 891 (9th Cir. 2004) (quoting INS v. St. Cyr, 533 U.S. 289, 298 (2001)), we hold that Section 1252(g) does not deprive courts of jurisdiction to review the DACA rescission order.19
IV.
Having concluded that neither the APA nor the INA precludes judicial review, we turn to the merits of the preliminary injunction. The district court held that plaintiffs satisfied the familiar four-factor preliminary injunction

18 Section 1252(g) is one such provision. See AADC, 525 U.S. at 475 (describing § 1252(g)’s passage as part of IIRIRA).
19 In its response and reply brief, the government appears to argue that another provision of the INA, 8 U.S.C. § 1252(b)(9), also stripped the district court of jurisdiction. Although ordinarily an argument not raised in the opening brief would be waived, this argument is jurisdictional so we must consider it. See, e.g., Embassy of the Arab Republic of Egypt v. Lasheen, 603 F.3d 1166, 1171 n.3 (9th Cir. 2010) (“[C]hallenges to subject matter jurisdiction cannot be waived[.]”). But Section 1252(b)(9) does not bar jurisdiction here, because it “appl[ies] only to those claims seeking judicial review of orders of removal.” Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007) (citing St. Cyr, 533 U.S. at 313).

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standard20 with respect to their claim under the APA that the rescission of DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A). The government takes issue with the district court’s conclusion on only one of the preliminary injunction factors: the likelihood of success on the merits.

In an arbitrary-and-capricious challenge, “[i]t is wellestablished that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 50 (1983); see also, e.g., SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (Chenery II) (“[A] reviewing court . . . must judge the propriety of [agency] action solely by the grounds invoked by the agency.” (citing SEC v. Chenery Corp., 318 U.S. 80 (1943) (Chenery I)).

Similarly, it is black letter law that where an agency purports to act solely on the basis that a certain result is legally required, and that legal premise turns out to be incorrect, the action must be set aside, regardless of whether the action could have been justified as an exercise of discretion. That principle goes back at least as far as the Supreme Court’s seminal decision in Chenery I, in which the Court stated:

If [agency] action rests upon an administrative determination—an exercise of judgment in an area which Congress has entrusted to the agency—of course it must

20 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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not be set aside because the reviewing court might have made a different determination were it empowered to do so. But if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law.

Chenery I, 318 U.S. at 94 (emphasis added).
This holding of Chenery I remains good law. See, e.g., United States v. Ross, 848 F.3d 1129, 1134 (D.C. Cir. 2017) (“Where a statute grants an agency discretion but the agency erroneously believes it is bound to a specific decision, we can’t uphold the result as an exercise of the discretion that the agency disavows.”); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007) (setting aside agency action that was justified on a “legally erroneous” basis, and remanding for further consideration under other justifications). As the D.C. Circuit flatly put it, “An agency action, however permissible as an exercise of discretion, cannot be sustained where it is based not on the agency’s own judgment but on an erroneous view of the law.” SeaLand Serv., Inc. v. DOT, 137 F.3d 640, 646 (D.C. Cir. 1998) (internal quotation marks omitted) (quoting Prill v. NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985)).
Thus, if the DACA rescission was based solely on an erroneous legal premise, it must be set aside under 5 U.S.C. § 706(2)(A). We have already concluded, in our discussion of reviewability, that the rescission was indeed premised on

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the belief that the DACA program was unlawful. We next must decide whether that legal conclusion was correct.21
Attorney General Sessions’s September 4, 2017, letter expresses several possible bases for the agency’s ultimate conclusion that DACA was unlawful. First, the Attorney General states that “DACA was effectuated by the previous administration through executive action . . . after Congress’[s] repeated rejection of proposed legislation that would have accomplished a similar result.” But our court has already explained that “Congress’s failure to pass the [DREAM] Act does not signal the illegitimacy of the DACA program,” partly because “the DREAM Act and the DACA program are not interchangeable policies because they provide different forms of relief”: the DREAM Act would have provided a path to lawful permanent resident status, while DACA simply defers removal. Brewer II, 855 F.3d at 976 n.10; see Motomura, supra, at 175 (“DACA is not the DREAM Act; as an interim executive measure, it is limited in duration and provides no durable immigration status.”) (footnote omitted); see also, e.g., DREAM Act of 2011, S. 952, 112th Cong. (2011). Moreover, there is nothing inherently problematic about an agency addressing a problem for which Congress has been unable to pass a legislative fix, so long as the particular action taken is properly within the agency’s power. This argument therefore provides no independent reason to think that DACA is unlawful.

21 The government does not argue that its conclusion is entitled to Chevron deference, likely because “[d]eference to an agency’s interpretation of a statute is not appropriate when the agency wrongly ‘believes that interpretation is compelled by Congress.’” Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1149 (9th Cir. 2013) (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 798 (D.C. Cir. 2004)).

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The Attorney General’s primary bases for concluding that DACA was illegal were that the program was “effectuated . . . without proper statutory authority” and that it amounted to “an unconstitutional exercise of authority.” More specifically, the Attorney General asserted that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA” in the Texas litigation.
The claim of “constitutional defects” is a puzzling one because as all the parties recognize, no court has ever held that DAPA is unconstitutional. The Fifth Circuit and district court in Texas explicitly declined to address the constitutional issue. See Texas, 809 F.3d at 154 (“We decide this appeal . . . without resolving the constitutional claim.”); Texas, 86 F. Supp. 3d at 677 (“[T]he Court is specifically not addressing Plaintiffs’ likelihood of success on . . . their constitutional claims . . . .”). Indeed, the government makes no attempt in this appeal to defend the Attorney General’s assertion that the DACA program is unconstitutional. We therefore do not address it further.
With respect to DACA’s alleged “legal . . . defects,” the district court explained in great detail the long history of deferred action in immigration enforcement, including in the form of broad programs; the fact that the Supreme Court and Congress have both acknowledged deferred action as a feature of the immigration system; and the specific statutory responsibility of the Secretary of Homeland Security for “[e]stablishing national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5). The government does not contest any of these propositions, which themselves go a long way toward establishing DACA’s legality. Instead, the government argues that the Fifth Circuit’s reasons for

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striking down the related DAPA policy would also apply to DACA.
The Fifth Circuit concluded that DAPA was unlawful on two grounds: first, that DAPA was in fact a legislative rule and therefore should have been promulgated through noticeand-comment rulemaking; and second, that DAPA was substantively inconsistent with the INA. See Texas, 809 F.3d at 171–78, 178–86.
With respect to the first holding, notice-and-comment procedures are not required where the agency pronouncement in question is a “general statement[] of policy.” 5 U.S.C. § 553(b)(3)(A). “The critical factor to determine whether a directive announcing a new policy constitutes a rule or a general statement of policy is the extent to which the challenged [directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987) (alterations in original) (internal quotation marks omitted).
On its face, DACA obviously allows (and indeed requires) DHS officials to exercise discretion in making deferred action decisions as to individual cases: Secretary Napolitano’s memorandum announcing DACA specifically states that “requests for relief pursuant to this memorandum are to be decided on a case by case basis.” The Fifth Circuit in Texas held that DAPA was a substantive rule notwithstanding similar discretionary language, based primarily on statistics regarding the approval rates of DACA applications. The court read those statistics as revealing that DACA was discretionary in name only—that is, that DHS personnel had no discretion to deny deferred action if the DACA criteria were met. Texas, 809 F.3d at 172–73.

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But as the dissenting judge in Texas pointed out, DACA’s (then) 5% denial rate—which did not include applications rejected for administrative deficiencies—is consistent with a discretionary program given that applicants self-select: “It should be expected that only those highly likely to receive deferred action will apply; otherwise, applicants would risk revealing their immigration status and other identifying information to authorities, thereby risking removal (and the loss of a sizeable fee).” Texas, 809 F.3d at 210 (King, J., dissenting).
Moreover, the denial rate has risen as the DACA program has matured. DHS statistics included in the record reveal that in fiscal year 2016, for example, the agency approved 52,882 initial DACA applications and denied 11,445; that is, 17.8% of the applications acted upon were denied.22 As Judge King concluded, “Neither of these numbers suggests an agency on autopilot.” Texas, 809 F.3d at 210 n.44 (King, J., dissenting); see also Arpaio v. Obama, 27 F. Supp. 3d 185, 209 n.13 (D.D.C. 2014) (noting that these same statistics “reflect that . . . case-by-case review is in operation”).23 In light of these differences, we do not

22 U.S. Citizenship & Immigration Services, Number of Form I821D, Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012–2017 (March 31, 2017). The number of initial applications is the relevant metric because renewal applications are by definition limited to the pool of those already approved for DACA at least once. Therefore, one would expect an even lower denial rate for renewals.
23 Judge King’s dissent also makes the critical observation that, according to the declarations filed in that case, the reason DHS could not point to specific instances in which DACA applicants met the program criteria but were denied as a matter of discretion was that DHS did not have the ability to track and sort the reasons for DACA denials. Texas, 809 F.3d at 211 (King, J., dissenting).

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agree that DACA is a legislative rule that would require notice-and-comment rulemaking.
As to the substantive holding in Texas, the Fifth Circuit concluded that DAPA conflicted with the INA largely for a reason that is inapplicable to DACA. Specifically, the Fifth Circuit reasoned that the INA provides “an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status” but that “DAPA would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration status without complying with any of the requirements . . . that Congress has deliberately imposed.” Texas, 809 F.3d at 179–80. As the district court in this case noted, there is no analogous provision in the INA defining how immigration status may be derived by undocumented persons who arrived in the United States as children. One of the major problems the Fifth Circuit identified with DAPA is therefore not present here.
In resisting this conclusion, the government flips the Fifth Circuit’s reasoning on its head, arguing that “[i]nsofar as the creation of pathways to lawful presence was relevant, the fact that Congress had legislated only for certain individuals similarly situated to DAPA beneficiaries—and not DACA recipients—would make DACA more inconsistent with the INA than DAPA.” To the extent the government meant to draw on the Texas court’s analysis, it gets it exactly backwards: the whole thrust of the Fifth Circuit’s reasoning on this point was that DHS was without authority because “Congress has ‘directly addressed the precise question at issue.’” Texas, 809 F.3d at 186 (quoting Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 52 (2011)). There is no argument that Congress has similarly occupied the field with respect to DACA; as

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the Attorney General himself noted, Congress has repeatedly rejected Dreamer legislation.
The second major element of the Fifth Circuit’s analysis on the substantive issues was that the INA itself “prescribes . . . which classes of aliens can achieve deferred action and eligibility for work authorization.” Texas, 809 F.3d at 186. The court drew the implication that the statute must therefore preclude the Executive Branch from granting these benefits to other classes. Id. (pairing this notion with the pathwayto-lawful-presence argument as the keys to its conclusion).
But “[t]he force of any negative implication . . . depends on context.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013). Indeed, “[w]e do not read the enumeration of one case to exclude another unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Here, the express grants of deferred action cited by the Fifth Circuit were not passed together as part of the original INA; rather, they were added to the statute books piecemeal over time by Congress. See Violence Against Women Act of 2000, Pub. L. No. 106-386, div. B, sec. 1503, § 1154(a)(1)(D)(i), 114 Stat. 1491 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)) (specifying deferred action for certain VAWA self-petitioners); USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361 (same, for family members of lawful permanent residents killed by terrorism); National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694– 95 (same, for relatives of noncitizens killed in combat and posthumously granted citizenship).
Given this context, we find it improbable that Congress “considered the . . . possibility” of all other potential uses for deferred action “and meant to say no” to any other

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application of that tool by the immigration agency. Barnhart, 537 U.S. at 168. We think the much more reasonable conclusion is that in passing its seriatim pieces of legislation, instructing that this and that “narrow class[]” of noncitizens should be eligible for deferred action, Texas, 809 F.3d at 179, Congress meant to say nothing at all about the underlying power of the Executive Branch to grant the same remedy to others. We do not read an “and no one else” clause into each of Congress’s individual express grants of deferred action.
Another element in the Fifth Circuit’s analysis was that “DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and ‘we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.’” Id. at 181 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). DACA, on the other hand, had 689,800 enrollees as of September 2017. The government asserts that this difference in size is “legally immaterial,” but that response is unconvincing. If the point is that the “economic and political magnitude” of allowing 4.3 million people to remain in the country and obtain work authorization is such that Congress would have spoken to it directly, then surely it makes a difference that one policy has less than one-sixth the “magnitude” of the other. Id. As the district court laconically put it, “there is a difference between 4.3 million and 689,800.”
Finally, the government finds “an insurmountable obstacle to plaintiffs’ position” in that “the district court’s injunction affirmed by the Fifth Circuit covered both DAPA and expanded DACA.” It is true that the Texas court also

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enjoined the expansions of DACA that were announced in the same memorandum as the DAPA program. See Texas, 809 F.3d at 147 n.11 (“The district court enjoined implementation of the following three DACA expansions, and they are included in the term ‘DAPA’ in this opinion . . . .”). But no analysis was devoted to those provisions by either the Fifth Circuit or the Texas district court, and one of the keys to the Fifth Circuit’s reasoning—that Congress had supposedly occupied the field with respect to obtaining immigration benefits through one’s children—does not apply to either the original DACA program or its expansions. Under these circumstances, we do not find the Texas courts’ treatment of the DACA expansions to be strong persuasive authority, much less an “insurmountable obstacle.” Cf. Bryan A. Garner et al., The Law of Judicial Precedent 170 (2016) (“An authority derives its persuasive power from its ability to convince others to go along with it.”).
In sum, the reality is (and always has been) that the executive agencies charged with immigration enforcement do not have the resources required to deport every single person present in this country without authorization. Compare Bernsen Memorandum, supra, at 1 (stating, in 1976, that “[t]here simply are not enough resources to enforce all of the rules and regulations presently on the books”), with Memorandum from John Morton, Assistant Secretary, DHS, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, at 1 (June 30, 2010) (estimating that ICE has enough resources to deport only 4% of the undocumented population in any given year, and concluding that “ICE must prioritize the use of its . . . removal resources to ensure the removals the agency does conduct promote the agency’s highest enforcement priorities”) and Motomura, supra, at 26 (“The letter of the law creates a large removable population, but

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whether an individual is actually targeted for removal has long depended on government discretion and bad luck.” (footnote omitted)). Recognizing this state of affairs, Congress has explicitly charged the Secretary of Homeland Security with “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5).
It is therefore no surprise that deferred action has been a feature of our immigration system—albeit one of executive invention—for decades; has been employed categorically on numerous occasions; and has been recognized as a practical reality by both Congress and the courts. See, e.g., Brewer II, 855 F.3d at 967 (“[I]t is well settled that the Secretary [of Homeland Security] can exercise deferred action” as part of her statutory authority “to administer and enforce all laws relating to immigration and naturalization.”). In a world where the government can remove only a small percentage of the undocumented noncitizens present in this country in any year, deferred action programs like DACA enable DHS to devote much-needed resources to enforcement priorities such as threats to national security, rather than blameless and economically productive young people with clean criminal records.
We therefore conclude that DACA was a permissible exercise of executive discretion, notwithstanding the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s statutory authority. DACA is being implemented in a manner that reflects discretionary, caseby-case review, and at least one of the Fifth Circuit’s key rationales in striking down DAPA is inapplicable with respect to DACA. With respect for our sister circuit, we find the analysis that seemingly compelled the result in Texas entirely inapposite. And because the Acting Secretary was therefore incorrect in her belief that DACA was illegal and

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had to be rescinded, plaintiffs are likely to succeed in demonstrating that the rescission must be set aside. Chenery I, 318 U.S. at 94; Safe Air for Everyone, 488 F.3d at 1101– 02.
To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion. We hold only that here, where the Executive did not make a discretionary choice to end DACA—but rather acted based on an erroneous view of what the law required—the rescission was arbitrary and capricious under settled law. The government is, as always, free to reexamine its policy choices, so long as doing so does not violate an injunction or any freestanding statutory or constitutional protection.24
V.
Having concluded that the district court was correct in its APA merits holding, we now turn to the question of the appropriate remedy. The district court preliminarily

24 The government has submitted a letter pursuant to Federal Rule of Appellate Procedure 28(j), informing us that the current Secretary of Homeland Security, Kirstjen Nielsen, issued a new memorandum regarding the DACA rescission on June 22, 2018. In the memorandum, Secretary Nielsen “provide[d] additional explanation of the basis for the DACA rescission,” in response to an order filed in a parallel lawsuit. The government’s letter does not argue that the Nielsen memorandum represents fresh agency action that could possibly moot this appeal. We therefore leave it to the district court in the first instance to determine the admissibility of Secretary Nielsen’s letter given that it cannot possibly be a part of the administrative record in this case, and its impact, if any, on this case. And to the extent the Nielsen memorandum is offered as an additional justification of the original DACA rescission, we do not consider it in our review of Acting Secretary Duke’s decision because it is well-settled that “we will not allow the agency to supply post-hoc rationalizations for its actions . . . .” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 603 (9th Cir. 2014).

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enjoined the rescission of DACA with respect to existing beneficiaries on a nationwide basis. The government asserts that this was error, and that a proper injunction would be narrower.
The general rule regarding the scope of preliminary injunctive relief is that it “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the court.” L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (internal citation omitted). But “[t]here is no general requirement that an injunction affect only the parties in the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1987); see also id. at 1170–71 (“[A]n injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.”) (emphasis in original).
It is also important to note that the claim underlying the injunction here is an arbitrary-and-capricious challenge under the APA. In this context, “[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (internal citation omitted). As Justice Blackmun explained while “writing in dissent but apparently expressing the view of all nine Justices on this question,” id.:
The Administrative Procedure Act permits suit to be brought by any person “adversely affected or aggrieved by agency action.” In some cases the “agency action” will consist of a rule of broad applicability; and if the

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plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain “programmatic” relief that affects the rights of parties not before the court.

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 913 (1990) (Blackmun, J., dissenting) (citation omitted).
A final principle is also relevant: the need for uniformity in immigration policy. See Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018) (“Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”). As the Fifth Circuit stated when it affirmed the nationwide injunction against DAPA, “the Constitution requires an uniform Rule of Naturalization; Congress has instructed that the immigration laws of the United States should be enforced vigorously and uniformly; and the Supreme Court has described immigration policy as a comprehensive and unified system.” Texas, 809 F.3d at 187–88 (emphases in original) (citations and internal quotation marks omitted). Allowing uneven application of nationwide immigration policy flies in the face of these requirements.
In its briefing, the government fails to explain how the district court could have crafted a narrower injunction that would provide complete relief to the plaintiffs, including the entity plaintiffs. Cf. Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017) (“[T]he Government has not proposed a workable alternative form of the TRO . . . that would protect the proprietary interests of the States at issue here

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while nevertheless applying only within the States’ borders.”). Nor does it provide compelling reasons to deviate from the normal rule in APA cases, or to disregard the need for uniformity in national immigration policy. The one argument it does offer on this latter point—that “[d]eferred action is itself a departure from vigorous and uniform enforcement of the immigration laws,” and that “enjoining the rescission of DACA on a nationwide basis . . . increases rather than lessens that departure”—is a red herring. DACA is national immigration policy, and an injunction that applies that policy to some individuals while rescinding it as to others is inimical to the principle of uniformity.
We therefore conclude that the district court did not abuse its discretion in issuing a nationwide injunction. Such relief is commonplace in APA cases, promotes uniformity in immigration enforcement, and is necessary to provide the plaintiffs here with complete redress.
VI.
We turn next to the district court’s treatment of the government’s motion to dismiss for failure to state a claim. The government moved to dismiss all of plaintiffs’ claims; the district court dismissed some claims and denied the government’s motion as to others. We take each claim in turn.25

25 Plaintiffs do not challenge the district court’s dismissal of their equitable estoppel claim.

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A. APA: Arbitrary-and-Capricious
For the reasons stated above in discussing plaintiffs’ likelihood of success on the merits, the district court was correct to deny the government’s motion to dismiss plaintiffs’ claim that the DACA rescission was arbitrary and capricious under the APA. See 5 U.S.C. § 706(2)(A).
B. APA: Notice-and-Comment
Plaintiffs also assert that the rescission of DACA is in fact a substantive rule under the APA, and that it therefore could not be validly accomplished without notice-andcomment procedures.
As touched on above with respect to DACA itself, an agency pronouncement is excluded from the APA’s requirement of notice-and-comment procedures if it constitutes a “general statement[] of policy.” 5 U.S.C. § 553(b)(3)(A). General statements of policy are those that “advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” MadaLuna, 813 F.2d at 1012–13 (quoting Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947)). “To qualify as a general statement of policy . . . a directive must not establish a binding norm and must leave agency officials free to consider the individual facts in the various cases that arise and to exercise discretion.” Id. at 1015 (internal quotation marks omitted); see also id. at 1013 (“The critical factor to determine whether a directive announcing a new policy constitutes a rule or a general statement of policy is the extent to which the challenged [directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” (alterations in original) (internal quotation marks omitted)).

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The district court held that because DACA itself was a general statement of policy that did not require notice and comment, it could also be rescinded without those procedures. This proposition finds support in Mada-Luna, in which “we conclude[d] that [a deferred-action Operating Instruction] constituted a general statement of policy, and thus could be validly repealed and superseded without notice-and-comment proceedings.” Id. at 1017. Plaintiffs contest this conclusion, arguing that the DACA rescission was a binding rule, even though DACA’s adoption was a general statement of policy. They provide two bases for this assertion.
First, plaintiffs argue that the rescission is binding because it requires DHS officials to reject new DACA applications and (after a certain date) renewal applications. It is true that Acting Secretary Duke’s rescission memorandum makes rejections of DACA applications mandatory. But the relevant question under the rescission memorandum is not whether DHS officials retained discretion to accept applications for a program that no longer existed; instead, the question is whether DHS officials retained discretion to grant deferred action and collateral benefits outside of the (now-cancelled) DACA program.
For its part, the government asserts that the rescission memorandum made clear that, despite the rescission, “future deferred action requests will be ‘adjudicat[ed] . . . on an individual, case-by-case basis.’” Mildly put, this assertion mischaracterizes the memorandum. The quoted language refers to the treatment of only (a) initial applications pending on the date of the rescission, and (b) renewal applications filed within the one-month wind-down period. It does not refer to how future requests for deferred action outside the DACA program would be handled. Still, the rescission

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memorandum also did not forbid the agency from granting such requests, and it acknowledged the background principle of deferred action as “an act of prosecutorial discretion meant to be applied only on an individualized case-by-case basis.” And the memorandum closed by stating that “no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS”— presumably including granting deferred action on a case-bycase basis to some people who would have been eligible for DACA.
If allowed to go into effect, the rescission of DACA would undoubtedly result in the loss of deferred action for the vast majority of the 689,800 people who rely on the program. But the rescission memorandum does not mandate that result because it leaves in place the background principle that deferred action is available on a case-by-case basis.26 Plaintiffs’ primary argument against this conclusion is a citation to United States ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), which is said to be “the only other decision to address an Executive Branch decision to terminate a deferred-action program without undergoing notice-and-comment rulemaking.” But as the district court noted, the key factor in that case was the contention that under the policy at issue, “‘discretion’ was exercised favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in each such case.” Parco,

26 The Regents argue that “the agency’s discretion to grant deferred action on the basis of the DACA criteria has been eliminated.” This is not quite right either. DHS’s authority to grant deferred action under the DACA program has been eliminated, but the DACA criteria themselves are some of those that have traditionally guided immigration enforcement discretion. See Wadhia, supra, at 57 (“DHS used traditional humanitarian factors to outline the parameters for the DACA program, such as tender age and longtime residence in the United States.”).

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426 F. Supp. at 984. DACA, by contrast, explicitly contemplated case-by-case discretion, and its rescission appears to have left in place background principles of prosecutorial discretion.
Plaintiffs also argue that the DACA rescission is not a general policy statement because it is binding as a legal interpretation that a DACA-like program would be illegal. But again, this argument answers the wrong question. The Acting Secretary’s legal conclusion that a DACA-like program is unlawful does not constrain the discretion of linelevel DHS employees to grant deferred action on a case-bycase basis, and those employees lack authority to institute such an agency-wide program in the first place. And plaintiffs do not point to any reason why this Acting Secretary’s legal conclusion about DACA would bind subsequent Secretaries if they were to disagree with its reasoning—just as Acting Secretary Duke reversed course from previous Secretaries who concluded DACA was legal. This is not a “new ‘binding rule of substantive law,’” MadaLuna, 813 F.2d at 1014, affecting the rights of the people and entities regulated by the agency; it is an interpretation of the agency’s own power, and plaintiffs do not explain why it should be read as binding future DHS Secretaries. The district court correctly dismissed plaintiffs’ notice-andcomment claims.
C. Due Process: Deferred Action
The Garcia plaintiffs—individual DACA recipients— have brought a substantive due process claim alleging that the rescission deprived them of protected interests in their DACA designation, including the renewal of their benefits. The district court dismissed this claim, holding that there is no protected entitlement in either the initial grant of deferred action under DACA or the renewal of benefits for existing

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DACA enrollees. On appeal, the Garcia plaintiffs challenge this ruling only as it applies to the renewal of DACA benefits, not as to the initial grant.
“A threshold requirement to a substantive or procedural due process claim is the plaintiff’s showing of a liberty or property interest protected by the Constitution.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). It is possible to have a property interest in a government benefit, but “a person clearly must have more than an abstract need or desire for [the benefit]. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Although “a benefit is not a protected entitlement if government officials may grant or deny it in their discretion,” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005), a legitimate claim of entitlement may exist where there are “rules or mutually explicit understandings that support [a plaintiff’s] claim of entitlement to the benefit . . . .” Perry v. Sindermann, 408 U.S. 593, 601 (1972); see also, e.g., Gerhart v. Lake Cty., 637 F.3d 1013, 1020 (9th Cir. 2011). The dispute here focuses on whether such “mutually explicit understandings” existed between the government and DACA recipients with respect to the renewal of DACA benefits.
The Garcia plaintiffs assert that they and the government “‘mutually’ understood that DACA recipients would be able to renew their benefits and protection on an ongoing basis so long as they fulfilled the program’s criteria.” But this argument is undercut by the DACA FAQs published by DHS, which explicitly state that “USCIS retains the ultimate discretion to determine whether deferred action is appropriate in any given case even if the [renewal]

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guidelines are met.” The FAQs also state that any individual’s “deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion,” and Secretary Napolitano’s DACA memorandum claims that it “confers no substantive right, immigration status or pathway to citizenship.” Whether or not these provisions are legally operative, they do not indicate that the government shared plaintiffs’ expectation of presumptive renewal.
Attempting to overcome this facially discretionary language, plaintiffs emphasize several factors. First, they say, the very nature of the DACA project was such that presumptive renewal was required to encourage people to participate; a two-year term with no presumption of renewal would not have been attractive enough to outweigh the risks to the applicants. Moreover, Secretary Napolitano’s DACA memorandum itself states that grants of deferred action under DACA will be “subject to renewal,” and the actual criteria for renewal were “nondiscretionary” in nature.27 Finally, the plaintiffs point to a more than 99% approval rate for adjudicated DACA renewal applications. This, they assert, is powerful evidence of a mutual understanding of presumptive renewal.

27 DHS’s DACA FAQs state that “[y]ou may be considered for renewal of DACA if you met the guidelines for consideration of Initial DACA (see above) AND you: [1] Did not depart the United States on or after Aug. 15, 2012, without advance parole; [2] Have continuously resided in the United States since you submitted your most recent request for DACA that was approved up to the present time; and [3] Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.”

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All these points might have revealed a question of fact as to whether a mutually explicit understanding of presumptive renewal existed—thereby avoiding dismissal on the pleadings—if plaintiffs were bringing a claim that, for example, their individual DACA renewals were denied for no good reason. But it is hard to see how an expectation of renewal within the confines of the existing DACA policy could have created a mutually explicit understanding that the DACA program itself would not be terminated wholesale. That is, a 99% renewal rate under DACA provides no evidence that the government shared an understanding that the DACA program would continue existing indefinitely to provide such renewals. None of plaintiffs’ cited authorities appear to address this kind of claim.
While we may agree with much of what plaintiffs say about the cruelty of ending a program upon which so many have come to rely, we do not believe they have plausibly alleged a “mutually explicit understanding” that DACA— created by executive action in a politically polarized policy area and explicitly couched in discretionary language— would exist indefinitely, including through a change in presidential administrations. See Gerhart, 637 F.3d at 1020 (“A person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a property right if that belief is not mutually held by the government.”). On that basis, we affirm the district court’s dismissal.
D. Due Process: Information-Sharing
Several of the complaints allege a different due process theory: DACA recipients had a protected interest based on the government’s representations that the personal information they submitted with their applications would not be used for enforcement purposes, and the government

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violated this interest by changing its policy to allow such use. The district court held that the plaintiffs had plausibly alleged facts that state a claim under this theory.
As with their other due process claim, the question whether DACA recipients enjoy a protected due process right protecting them from having the government use their information against them for enforcement purposes turns on the existence of a “mutually explicit understanding[]” on that point between the government and DACA recipients. Perry, 408 U.S. at 601; see also Gerhart, 637 F.3d at 1020. The DACA FAQs published by DHS state the following information-use policy:
Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or

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rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

(emphasis added). The statement that applicant information “is protected from disclosure” to the enforcement arms of DHS is a strong commitment, and plaintiffs plausibly allege that DACA recipients reasonably relied on it.
The government of course points to the express caveat that the information-sharing policy “may be modified, superseded or rescinded at any time.” But as the district court held, this qualifier is ambiguous as to whether it allows the government to change its policy only prospectively, or also with respect to information already received—and this ambiguity presents a fact question not amenable to resolution on the pleadings. Plaintiffs’ interpretation that a policy change would only apply prospectively is a plausible one, given that the policy is written in terms of what will happen to “[i]nformation provided in this request,” rather than DACA-derived information generally. (emphasis added). It is at least reasonable to think that a change in the policy would apply only to those applications submitted after that change takes effect. And while the government also relies on the language stating that the policy does not create enforceable rights, such a disclaimer by an agency about what its statements do and do not constitute as a legal matter are not dispositive. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022–23 (D.C. Cir. 2000) (declining to give legal effect to agency statement that its guidance did “not represent final Agency action, and cannot be relied upon to create any rights . . . .”). Plaintiffs have plausibly

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alleged a mutually explicit understanding that DACA applicants’ information would be protected from disclosure.
The government argues in the alternative that plaintiffs have failed to plausibly allege that DHS actually changed its policy. Plaintiffs’ allegations rest on a set of FAQs about the DACA rescission that DHS published the same day it issued the rescission memorandum, September 5, 2017. In those rescission FAQs, the previous language stating that personal information “is protected from disclosure” has been replaced with the following:
Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA).

(emphasis added).
The government’s first response—that the differing language in the two FAQs does not actually reflect a difference in policy—is hard to swallow. It does not take much parsing of the text to see the significant difference between “protect[ing]” something from “disclosure” on the one hand, and merely declining to “proactively provide[]” it on the other. This is especially so when the entities in question (and to which USCIS presumably would now provide information reactively) are fellow components of the same umbrella agency.

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Changing gears, the government also points to yet a third set of FAQs, published months after the rescission and not part of the record in this case, which state:
Information provided to USCIS for the DACA process will not make you an immigration priority for that reason alone. That information will only be proactively provided to ICE or CBP if the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). This information-sharing policy has not changed in any way since it was first announced, including as a result of the Sept. 5, 2017 memo starting a wind-down of the DACA policy.

USCIS, Guidance on Rejected DACA Requests: Frequently Asked Questions (Nov. 30, 2017) (emphases added). The government notes that a district court relied on FAQs containing this language in parallel litigation to dismiss a nearly identical information-use due process claim. See Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279–81 (E.D.N.Y. 2018).
But this case is critically different because in Batalla Vidal the plaintiffs had attached the new version of the FAQs to their complaint. As the court there explained, “Plaintiffs . . . have effectively pleaded themselves out of court by relying on a document that contradicts their otherwiseunsupported allegation of a change to DHS’s informationuse policy.” Id. at 280. By contrast, here the most recent FAQs were not attached to or referenced in any of the

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complaints—indeed, they postdate the filing of the complaints. Therefore, the normal rule applies: materials outside the complaint cannot be considered on a motion to dismiss. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Even if it could be considered, this newest FAQ would not conclusively resolve the question of fact surrounding DHS’s current information-sharing policy because it still contains the language that suggests a change from the prerescission policy. See USCIS, Guidance, supra (“[I]nformation will only be proactively provided to ICE or CBP if the requestor meets the criteria for the issuance of a Notice To Appear[.]”) (emphasis added).28 Plaintiffs have plausibly alleged that DHS has changed its policy.
Finally, in order to state a substantive due process claim, plaintiffs must allege conduct that “shock[s] the conscience and offend[s] the community’s sense of fair play and decency.” Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1195 (9th Cir. 2013) (quoting March v. Cty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012)). The government makes a passing argument that this standard is not satisfied because the information-sharing policy has always contained some exceptions, but as the Garcia plaintiffs put it, “[a]pplicants accepted those limited, acknowledged risks when they applied for DACA. They did not accept the risk that the government would abandon the other assurances that were ‘crucial’ to ‘inducing them to

28 Astonishingly, this sentence—which appears to represent a change from the prior policy of affirmatively protecting information from disclosure—is immediately adjacent to DHS’s assurance that nothing has changed. Cf. George Orwell, Nineteen Eighty-Four (1949), at 175 (“Oceania was at war with Eastasia: Oceania had always been at war with Eastasia.”).

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apply for DACA.’” (alterations incorporated). We agree. Cf. Raley v. Ohio, 360 U.S. 423, 437–39 (1959) (holding that “convicting a citizen for exercising a privilege which the State had clearly told him was available to him” was “the most indefensible sort of entrapment by the State” and violated due process); Cox v. Louisiana, 379 U.S. 559, 568– 71 (1965) (due process violation where defendant was convicted for leading a demonstration in a location where the police chief had given him permission to do so). Plaintiffs have stated a due process claim based on the alleged change in DHS’s information-sharing policy.
E. Equal Protection
The district court also held that plaintiffs stated a viable equal protection claim by plausibly alleging that the DACA rescission disproportionately affected Latinos and individuals of Mexican descent and was motivated by discriminatory animus. See Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015) (holding a facially neutral action unconstitutional where “its enactment or the manner in which it was enforced were motivated by a discriminatory purpose,” and reviewing the Arlington Heights factors for assessing discriminatory purpose) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)).
Because the district court denied the government’s motion to dismiss plaintiffs’ equal protection claim at the pleading stage, we take all of the complaints’ allegations as true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and construe them in the light most favorable to the plaintiffs, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We agree with the district court that plaintiffs plausibly alleged an equal protection claim.

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Most significantly, plaintiffs allege that the rescission of DACA disproportionately impacts Latinos and individuals of Mexican heritage, who account for 93% of DACA recipients. See Arlington Heights, 429 U.S. at 266. The complaints also allege a history of animus toward persons of Hispanic descent29 evidenced by both pre-presidential and post-presidential30 statements by President Trump, who is alleged to have decided to end DACA, even though the directive to the Acting Secretary was issued from Attorney General Sessions. Finally, the district court properly considered “the unusual history behind the rescission,” all of which appeared in the record submitted by the government. See Arlington Heights, 429 U.S. at 267. As the district court noted, “DACA received reaffirmation by the agency as recently as three months before the rescission, only to be hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality). This strange

29 The government argues that the statements by the President cited in the complaints do not provide sufficient evidence to plausibly allege discriminatory intent. The government first submits that nationality, as opposed to ethnicity, is not an invidious classification, and that many of the cited comments go only to Mexican nationality. “Often, however, the two are identical as a factual matter: one was born in the nation whose primary stock is one’s own ethnic group.” St. Francis Coll. v. AlKhazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring). And plaintiffs allege discriminatory intent not only toward “Mexican nationals,” but also toward “individuals of Mexican heritage, and Latinos.”
30 The district court took judicial notice of one such statement by the President: “[o]n December 29, 2017, President Trump tweeted: ‘The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our Country at all cost!’” There were many similar statements made by the President after he took the oath of office leading up to the DACA rescission on September 5, 2017.

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about-face, done at lightning speed, suggests that the normal care and consideration within the agency was bypassed.”
The government contends that the equal protection claim is foreclosed by AADC, in which the Supreme Court stated that “as a general matter . . . an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” 525 U.S. at 488. But in the context of this case, the challenge to the rescission of DACA is not raised “as a defense against [] deportation,” and is not a claim of “selective enforcement.” Id. Rather, it is a freestanding claim that the Executive Branch, motivated by animus, ended a program that overwhelmingly benefits a certain ethnic group. Thus, the equal protection claim does not implicate the concerns motivating the Court in AADC and underscored by the government: inhibiting prosecutorial discretion, allowing continuing violations of immigration law, and impacting foreign relations. The two cases cited by the government do not support its position, as both of them involved an individual noncitizen making an equal protection argument in an attempt to avoid his own deportation. See Kandamar v. Gonzales, 464 F.3d 65, 72–74 (1st Cir. 2006); Hadayat v. Gonzales, 458 F.3d 659, 665 (7th Cir. 2006). Plaintiffs’ challenge to the rescission of DACA—which is itself discretionary—is not such a case.
The government also contends that even if not totally barred by AADC, plaintiffs’ claims must be subject to the heightened pleading standard applied to selectiveprosecution claims in the criminal context. See United States v. Armstrong, 517 U.S. 456, 463–65 (1996). But this argument meets the same objection: as the district court held, plaintiffs’ challenge is not a selective-prosecution claim.

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We are therefore not persuaded by the government’s arguments.
The Supreme Court’s recent decision in Trump v. Hawaii, 138 S. Ct. 2392 (2018), does not foreclose this claim. There, statements by the President allegedly revealing religious animus against Muslims were “[a]t the heart of plaintiffs’ case . . . .” Hawaii, 138 S. Ct. at 2417. The Court assumed without deciding that it was proper to rely on the President’s statements, but nevertheless upheld the challenged executive order under rational basis review. Id. at 2420, 2423. Here, by contrast, plaintiffs provide substantially greater evidence of discriminatory motivation, including the rescission order’s disparate impact on Latinos and persons of Mexican heritage, as well as the order’s unusual history. Moreover, our case differs from Hawaii in several potentially important respects, including the physical location of the plaintiffs within the geographic United States, see Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc), the lack of a national security justification for the challenged government action, and the nature of the constitutional claim raised.
Therefore, we conclude that plaintiffs have stated a plausible equal protection claim.
VII.
The rescission of DACA—based as it was solely on a misconceived view of the law—is reviewable, and plaintiffs are likely to succeed on their claim that it must be set aside under the APA. We therefore affirm the district court’s entry

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of a preliminary injunction.31 The district court also properly dismissed plaintiffs’ APA notice-and-comment claim, and their claim that the DACA rescission violates their substantive due process rights. The district court also properly denied the government’s motion to dismiss plaintiffs’ APA arbitrary-and-capricious claim, their claim that the new information-sharing policy violates their due process rights, and their claim that the DACA rescission violates their right to equal protection.

* * *

The Executive wields awesome power in the enforcement of our nation’s immigration laws. Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public. Whether Dulce Garcia and the hundreds of thousands of other young dreamers like her may continue to live productively in the only country they have ever known is, ultimately, a choice for the political branches of our constitutional government. With the power to make that choice, however, must come accountability for the consequences.

AFFIRMED.

31 We do not disagree with the reasoning of Judge Owens’s concurring opinion that the likelihood of success on plaintiffs’ equal protection claim is a second, alternative ground for affirming the entry of the injunction.

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OWENS, Circuit Judge, concurring in the judgment:
As I believe that Plaintiffs’ Equal Protection claim has some “likelihood of success on the merits,” I concur in the judgment affirming the preliminary injunction. The extraordinary practical impact of allowing DACA’s rescission to take effect before a final adjudication of its legality far outweighs the minimal practical impact of keeping the program in place a bit longer. For that reason, it is better now to risk incorrectly preserving the status quo than to risk incorrectly disrupting it.1 However, I disagree with the portion of the majority’s opinion that we may review the rescission of DACA for compliance with the APA.2
Under 5 U.S.C. § 701(a)(2), “agency action [that] is committed to agency discretion by law” is not subject to judicial review for compliance with the APA. Since Heckler

1 The government appears to share this view. In its petition for certiorari before judgment, the government asserted that “a primary purpose of the Acting Secretary’s orderly wind-down of the DACA policy was to avoid the disruptive effects on all parties of abrupt shifts in the enforcement of the Nation’s immigration laws. Inviting more changes before final resolution of this litigation would not further that interest.”
2 As for the government’s appeal from the motions to dismiss, I dissent, for reasons stated here, from the majority’s holding to affirm the district court’s denial of the motion to dismiss Plaintiffs’ APA arbitraryand-capricious claim (Part VI-A). However, I concur in the majority’s holding to affirm the district court’s dismissal of Plaintiffs’ APA noticeand-comment claim (Part VI-B). I also concur in the judgment to affirm the district court’s ruling on Plaintiffs’ Due Process claims (Part VI-C; Part VI-D). And, as explained here as well, I agree with the majority’s decision to affirm the district court’s denial of the motion to dismiss the Equal Protection claim (Part VI-E) and hold that the Equal Protection claim offers an alternative ground to affirm the preliminary injunction.

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v. Chaney, courts read § 701(a)(2) to preclude judicial review of certain types of administrative action that are “traditionally . . . ‘committed to agency discretion.’” 470 U.S. 821, 832 (1985) (holding unreviewable the decision not to institute enforcement proceedings); Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (same for the allocation of funds from a lump-sum appropriation); Webster v. Doe, 486 U.S. 592, 599–600 (1988) (same for decisions of the Director of the Central Intelligence Agency to terminate an employee due to national security interests); ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 281–82 (1987) (BLE) (same for an agency’s refusal to grant reconsideration of an action due to material error).
An agency decision to rescind a non-enforcement policy in the immigration context is this type of administrative action. From Heckler, we know that agency actions that “involve[] a complicated balancing of a number of factors,” like allocating agency resources and prioritizing agency policies, “are peculiarly within [the agency’s] expertise,” and are therefore “general[ly] unsuitab[le] for judicial review.” 470 U.S. at 831. And in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (AADC), the Supreme Court made clear that Executive Branch decisions that implicate enforcement priorities in the context of immigration are among those that judges are least equipped to review. Id. at 489–90. In AADC, the Court explained that the concerns necessitating the Executive’s “broad discretion” in criminal prosecutions are “greatly magnified in the deportation context.” Id. (citing United States v. Armstrong, 517 U.S. 456, 464 (1996)).
In deciding to rescind an immigration policy of nonenforcement, DHS thus acts with broad discretion that courts cannot review absent clear congressional authorization.

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Here, rather than authorize judicial review, the broad, discretion-granting language of the enabling statute reinforces that DHS’s enforcement decision is not subject to APA review. See 6 U.S.C. § 202(5) (“The Secretary shall be responsible for . . . [e]stablishing national immigration enforcement policies and priorities.”); see also Webster, 486 U.S. at 599–600.
Perhaps recognizing that immigration enforcement decisions exhibit the characteristics of unreviewable agency actions, the majority decides that we should nonetheless review the rescission of DACA because these features are not actually at work here: Acting Secretary Duke explained that DACA was rescinded based on DHS’s belief that the program was unlawful. The majority points to Heckler’s footnote 4, where the Court left open the question whether courts may review agency action if “a refusal by the agency to institute proceedings [is] based solely on the belief that it lacks jurisdiction.” Heckler, 470 U.S. at 833 n.4 (“[W]e express no opinion on whether such decisions would be unreviewable under § 701(a)(2) . . . .”). The majority concludes that the Supreme Court has not yet answered this question, and that our court, in Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753, 756–57 (9th Cir. 1990), has answered it in the affirmative: that otherwise unreviewable agency action is reviewable when the agency justifies its action by reference to its understanding of its jurisdiction. I respectfully disagree.
In Montana Air, we confronted the question left open in Heckler’s footnote 4. Specifically, we held that a decision by the Federal Labor Relations Authority’s General Counsel not to issue an unfair labor practice complaint was reviewable only because his decision was “based solely on his belief that he lacks jurisdiction to issue such a

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complaint.” Id. at 756. But what we held reviewable were the General Counsel’s “statutory and regulatory interpretations to determine if his belief that he lacked jurisdiction was correct.” Id. at 757. Applying Chevron, we found “impermissible” the General Counsel’s interpretations of the statute under which he acted. Id. at 758.
Here, by contrast, Plaintiffs do not ask that we apply Chevron to review whether Acting Secretary Duke impermissibly interpreted 6 U.S.C. § 202(5) in concluding that the statute authorized the rescission of DACA.3 Instead, Plaintiffs ask that we review for arbitrariness and capriciousness the procedures the agency used to rescind DACA. But nothing in Montana Air suggests that Heckler’s footnote 4 authorizes arbitrary-and-capricious, rather than Chevron, review of agency action simply because the agency acted based on its understanding of its enabling statute. And, despite Plaintiffs’ arguments to the contrary, BLE plainly prohibits us from doing so.
In BLE, the Supreme Court held that an agency’s refusal to reconsider a prior adjudicative decision was unreviewable even where the agency based its refusal on its interpretation of its enabling statute. 482 U.S. at 278–84. In so holding, the Court explained that the agency’s refusal to reconsider was unreviewable because it was the type of action that “has traditionally been ‘committed to agency discretion,’” id. at 282 (quoting Heckler, 470 U.S. at 832); thus any inquiry into its reasons for acting was inappropriate, id. at 280–81. “It is

3 This is not surprising: § 202(5) makes the Secretary “responsible for . . . [e]stablishing national immigration enforcement policies and priorities.” If we accept that this broad, discretion-granting statute authorized DACA’s implementation, it surely also sanctions DACA’s termination.

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irrelevant that the [agency’s] order refusing reconsideration discussed the merits of the unions’ claim at length,” the Court explained, as “[i]t would hardly be sensible to say that the [agency] can genuinely deny reconsideration only when it gives the matter no thought.” Id. BLE thus makes clear that when determining the scope of permissible judicial review, courts consider only the type of agency action at issue, not the agency’s reasons for acting.
Finally, Plaintiffs argue that even if BLE precludes review of some types of agency action regardless of the agency’s reason for acting, that rule only applies to singleshot enforcement decisions, not to general statements of policy. See NAACP v. Trump, 298 F. Supp. 3d 209, 227–36 (D.D.C. 2018) (discussing Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994), and permitting APA review on this ground). In other words, Plaintiffs would have us hold that general statements of policy—but not single-shot enforcement decisions—are subject to APA review when the agency’s sole reason for acting is its understanding of its jurisdiction. While the majority acknowledges Plaintiffs’ argument without reaching its merits, I believe that such a distinction collapses Heckler on its head: In deciding whether agency action is reviewable, the first question we ask is what type of agency action is before us—whether it is agency action that courts typically review or agency action “traditionally . . . ‘committed to agency discretion.’” Heckler, 470 U.S. at 832. This initial inquiry includes consideration of whether the action is a single-shot non-enforcement decision or a general statement of policy. It would beg the question to conclude that unreviewable agency action is in fact reviewable because it is the type of action that courts typically review.

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I would therefore hold that § 701(a)(2) precludes us from subjecting DACA’s rescission to arbitrary-and-capricious review.
At the same time, as the government concedes, DACA’s rescission may be reviewed for compliance with the Constitution. I would hold that Plaintiffs have plausibly alleged that the rescission of DACA was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment, and that the district court correctly denied the government’s motion to dismiss this claim.
Notably, Plaintiffs did not seek a preliminary injunction on their Equal Protection claim, instead relying solely on their APA argument. Nonetheless, this court may affirm a preliminary injunction on any basis supported by the record. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1021 (9th Cir. 2013). And because a preliminary injunction preserves the court’s power to render a meaningful decision on the merits, we can affirm an injunction issued on legally erroneous grounds where remand for consideration of alternative grounds is warranted. See Gerling Global Reinsurance Corp. of Am. v. Low, 240 F.3d 739, 754 (9th Cir. 2001) (“It is possible that [the challenged law] violates the Due Process Clause, but the district court did not reach that issue, and it is not fully developed in the record or in the briefs presented to this court. We leave the preliminary injunction in place in order to give the district court an opportunity to consider whether Plaintiffs are likely to succeed on the merits.”); see also United States v. Hovsepian, 359 F.3d 1144, 1157 (9th Cir. 2004) (en banc) (holding that the district court erred in entering an injunction but leaving “the injunction in place . . . pending the conclusion of all proceedings in this case, in aid of the court’s jurisdiction”). Accordingly, I would affirm

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the preliminary injunction and remand for consideration whether Plaintiffs have demonstrated a likelihood of success on the merits of their Equal Protection claim.
As the majority details, the record assembled at this early stage is promising. Plaintiffs highlight (1) the disproportionate impact DACA’s rescission has on “individuals of Mexican heritage, and Latinos, who together account for 93 percent of approved DACA applications”; (2) a litany of statements by the President and high-ranking members of his Administration that plausibly indicate animus toward undocumented immigrants from Central America;4 and (3) substantial procedural irregularities in the challenged agency action.
Such evidence—plus whatever additional evidence Plaintiffs muster on remand—may well raise a presumption that unconstitutional animus was a substantial factor in the rescission of DACA. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977); see also Hawaii, 138 S. Ct. at 2420 (holding that courts “may consider plaintiffs’ extrinsic evidence” as permitted by the applicable level of scrutiny). If the government fails to rebut that presumption, Plaintiffs will have demonstrated a likelihood of success on the merits. See Arlington Heights, 429 U.S. at 270 & n.21 (noting that proof that an action was motivated by a discriminatory purpose shifts to the government the burden of establishing that the same decision would have resulted without the impermissible purpose);

4 Like the majority, I do not interpret Trump v. Hawaii, 138 S. Ct. 2392 (2018), to preclude review of the President’s statements when applying the Arlington Heights standard. At the merits stage, the district court can still decide whether, or to what degree, the President’s statements betray a discriminatory animus behind DACA’s rescission.

CCaassee: 31:81-71-5c0v6-085,31219/0-W8/H20A18D, IoDc:u1m1e0n8t193386,FDilektdE1n1tr/y0:81/1989-1P, aPgaege9898ofo9f 999

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Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006) (affirming the injunction where the government failed to meet its burden at preliminary injunction stage, because “the burdens at the preliminary injunction stage track the burdens at trial”). As such, I believe that Plaintiffs have plausibly alleged an Equal Protection violation and that the district court should decide whether it is an alternative ground to grant the preliminary injunction.
Moreover, the balance of equities here weighs heavily in favor of affirming the preliminary injunction. A merits decision from the district court concluding that the Executive rescinded DACA because of unconstitutional racial animus would be little more than an advisory opinion if by that time thousands of young people had lost their status due to the lack of an injunction preserving it. Preliminary injunctive relief exists precisely for circumstances like these: “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Thus, on these facts, the district court was correct to issue a preliminary injunction. See Ashcroft v. ACLU, 542 U.S. 656, 670 (2004) (affirming injunction where “the potential harms from reversing the injunction outweigh those of leaving it in place by mistake”); Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975) (granting preliminary relief because “otherwise a favorable final judgment might well be useless”); Brown v. Chote, 411 U.S. 452, 457 (1973); cf. Winter v. NRDC, Inc., 555 U.S. 7, 26 (2008) (reversing injunction without addressing likelihood of success on the merits where “the balance of equities and consideration of the overall public interest in this case tip strongly in favor of [defendants]”).

CCaassee: 31:81-71-5c0v6-085,31219/0-W8/H20A18D, IoDc:u1m1e0n8t193386,FDilektdE1n1tr/y0:81/1989-1P, aPgaege9999ofo9f 999

REGENTS OF THE UNIV. OF CAL. V. USDHS

99

Accordingly, while I would remand for the district court to evaluate the Plaintiffs’ likelihood of success on the merits of their Equal Protection claim as an alternative basis for preliminary relief in the first instance, I join the majority in affirming the preliminary injunction to preserve the status quo while Plaintiffs attempt to prove up that claim.

 
 (Slip Opinion)

OCTOBER TERM, 2019

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
DEPARTMENT OF HOMELAND SECURITY ET AL. v. REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 18–587. Argued November 12, 2019—Decided June 18, 2020*
In 2012, the Department of Homeland Security (DHS) issued a memorandum announcing an immigration relief program known as Deferred Action for Childhood Arrivals (DACA), which allows certain unauthorized aliens who arrived in the United States as children to apply for a two-year forbearance of removal. Those granted such relief become eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Two years later, DHS expanded DACA eligibility and created a related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). If implemented, that program would have made 4.3 million parents of U. S. citizens or lawful permanent residents eligible for the same forbearance from removal, work eligibility, and other benefits as DACA recipients. Texas, joined by 25 other States, secured a nationwide preliminary injunction barring implementation of both the DACA expansion and DAPA. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act (INA), which carefully defines eligibility for benefits. This Court affirmed by an equally divided vote, and
—————— * Together with No. 18–588, Trump, President of the United States, et
al. v. National Association for the Advancement of Colored People et al., on certiorari before judgment to the United States Court of Appeals for the District of Columbia Circuit, and No. 18–589, Wolf, Acting Secretary of Homeland Security, et al. v. Batalla Vidal et al., on certiorari before judgment to the United States Court of Appeals for the Second Circuit.

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Syllabus

the litigation then continued in the District Court. In June 2017, following a change in Presidential administrations,
DHS rescinded the DAPA Memorandum, citing, among other reasons, the ongoing suit by Texas and new policy priorities. That September, the Attorney General advised Acting Secretary of Homeland Security Elaine C. Duke that DACA shared DAPA’s legal flaws and should also be rescinded. The next day, Duke acted on that advice. Taking into consideration the Fifth Circuit and Supreme Court rulings and the Attorney General’s letter, Duke decided to terminate the program. She explained that DHS would no longer accept new applications, but that existing DACA recipients whose benefits were set to expire within six months could apply for a two-year renewal. For all other DACA recipients, previously issued grants of relief would expire on their own terms, with no prospect for renewal.
Several groups of plaintiffs challenged Duke’s decision to rescind DACA, claiming that it was arbitrary and capricious in violation of the Administrative Procedure Act (APA) and infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause. District Courts in California (Regents, No. 18–587), New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588) all ruled for the plaintiffs. Each court rejected the Government’s arguments that the claims were unreviewable under the APA and that the INA deprived the courts of jurisdiction. In Regents and Batalla Vidal, the District Courts further held that the equal protection claims were adequately alleged, and they entered coextensive nationwide preliminary injunctions based on the conclusion that the plaintiffs were likely to succeed on their APA claims. The District Court in NAACP took a different approach. It deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, finding that the rescission was inadequately explained. The court then stayed its order for 90 days to permit DHS to reissue a memorandum rescinding DACA, this time with a fuller explanation of the conclusion that DACA was unlawful. Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded to the court’s order. She declined to disturb or replace Duke’s rescission decision and instead explained why she thought her predecessor’s decision was sound. In addition to reiterating the illegality conclusion, she offered several new justifications for the rescission. The Government moved for the District Court to reconsider in light of this additional explanation, but the court concluded that the new reasoning failed to elaborate meaningfully on the illegality rationale.
The Government appealed the various District Court decisions to the Second, Ninth, and D. C. Circuits, respectively. While those appeals were pending, the Government filed three petitions for certiorari

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Syllabus

before judgment. Following the Ninth Circuit affirmance in Regents, this Court granted certiorari.
Held: The judgment in No. 18–587 is vacated in part and reversed in part; the judgment in No. 18–588 is affirmed; the February 13, 2018 order in No. 18–589 is vacated, the November 9, 2017 order is affirmed in part, and the March 29, 2018 order is reversed in part; and all of the cases are remanded.
No. 18–587, 908 F. 3d 476, vacated in part and reversed in part; No. 18– 588, affirmed; and No. 18–589, February 13, 2018 order vacated, November 9, 2017 order affirmed in part, and March 29, 2018 order reversed in part; all cases remanded. THE CHIEF JUSTICE delivered the opinion of the Court, except as to Part IV, concluding: 1. DHS’s rescission decision is reviewable under the APA and is within this Court’s jurisdiction. Pp. 9–13. (a) The APA’s “basic presumption of judicial review” of agency action, Abbott Laboratories v. Gardner, 387 U. S. 136, 140, can be rebutted by showing that the “agency action is committed to agency discretion by law,” 5 U. S. C. §701(a)(2). In Heckler v. Chaney, the Court held that this narrow exception includes an agency’s decision not to institute an enforcement action. 470 U. S. 821, 831–832. The Government contends that DACA is a general non-enforcement policy equivalent to the individual non-enforcement decision in Chaney. But the DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. Therefore, unlike the non-enforcement decision in Chaney, DACA’s creation—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832. In addition, by virtue of receiving deferred action, 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. Access to such benefits is an interest “courts often are called upon to protect.” Ibid. DACA’s rescission is thus subject to review under the APA. Pp. 9–12. (b) The two jurisdictional provisions of the INA invoked by the Government do not apply. Title 8 U. S. C. §1252(b)(9), which bars review of claims arising from “action[s]” or “proceeding[s] brought to remove an alien,” is inapplicable where, as here, the parties do not challenge any removal proceedings. And the rescission is not a decision “to commence proceedings, adjudicate cases, or execute removal orders” within the meaning of §1252(g). Pp. 12–13. 2. DHS’s decision to rescind DACA was arbitrary and capricious under the APA. Pp. 13–26. (a) In assessing the rescission, the Government urges the Court to consider not just the contemporaneous explanation offered by Acting Secretary Duke but also the additional reasons supplied by Secretary

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REGENTS OF UNIV. OF CAL.

Syllabus

Nielsen nine months later. Judicial review of agency action, however, is limited to “the grounds that the agency invoked when it took the action.” Michigan v. EPA, 576 U. S. 743, 758. If those grounds are inadequate, a court may remand for the agency to offer “a fuller explanation of the agency’s reasoning at the time of the agency action,” Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (emphasis added), or to “deal with the problem afresh” by taking new agency action, SEC v. Chenery Corp., 332 U. S. 194, 201. Because Secretary Nielsen chose not to take new action, she was limited to elaborating on the agency’s original reasons. But her reasoning bears little relationship to that of her predecessor and consists primarily of impermissible “post hoc rationalization.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 420. The rule requiring a new decision before considering new reasons is not merely a formality. It serves important administrative law values by promoting agency accountability to the public, instilling confidence that the reasons given are not simply convenient litigating positions, and facilitating orderly review. Each of these values would be markedly undermined if this Court allowed DHS to rely on reasons offered nine months after the rescission and after three different courts had identified flaws in the original explanation. Pp. 13–17.
(b) Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the problem before the agency. Although Duke was bound by the Attorney General’s determination that DACA is illegal, see 8 U. S. C. §1103(a)(1), deciding how best to address that determination involved important policy choices reserved for DHS. Acting Secretary Duke plainly exercised such discretionary authority in winding down the program, but she did not appreciate the full scope of her discretion. The Attorney General concluded that the legal defects in DACA mirrored those that the courts had recognized in DAPA. The Fifth Circuit, the highest court to offer a reasoned opinion on DAPA’s legality, found that DAPA violated the INA because it extended eligibility for benefits to a class of unauthorized aliens. But the defining feature of DAPA (and DACA) is DHS’s decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance component from the associated benefits eligibility. Eliminating benefits eligibility while continuing forbearance thus remained squarely within Duke’s discretion. Yet, rather than addressing forbearance in her decision, Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy. 463 U. S. 29, 51. While DHS

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Syllabus

was not required to “consider all policy alternatives,” ibid., deferred action was “within the ambit of the existing” policy, ibid.; indeed, it was the centerpiece of the policy. In failing to consider the option to retain deferred action, Duke “failed to supply the requisite ‘reasoned analysis.’ ” Id., at 57.
That omission alone renders Duke’s decision arbitrary and capricious, but it was not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742. Certain features of the DACA policy may affect the strength of any reliance interests, but those features are for the agency to consider in the first instance. DHS has flexibility in addressing any reliance interests and could have considered various accommodations. While the agency was not required to pursue these accommodations, it was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns. Its failure to do so was arbitrary and capricious. Pp. 17–26.
THE CHIEF JUSTICE, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN, concluded in Part IV that respondents’ claims fail to establish a plausible inference that the rescission was motivated by animus in violation of the equal protection guarantee of the Fifth Amendment. Pp. 27–29.

ROBERTS, C. J., delivered the opinion of the Court, except as to Part IV. GINSBURG, BREYER, and KAGAN, JJ., joined that opinion in full, and SOTOMAYOR, J., joined as to all but Part IV. SOTOMAYOR, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which ALITO and GORSUCH, JJ., joined. ALITO, J., and KAVANAUGH, J., filed opinions concurring in the judgment in part and dissenting in part.

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1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589

_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to Part IV.
In the summer of 2012, the Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity.
Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department’s Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision. For the reasons that follow, we conclude that the Acting Secretary did violate the APA, and that the rescission must be vacated.
I A
In June 2012, the Secretary of Homeland Security issued a memorandum announcing an immigration relief program for “certain young people who were brought to this country as children.” App. to Pet. for Cert. in No. 18–587, p. 97a (App. to Pet. for Cert.). Known as DACA, the program applies to childhood arrivals who were under age 31 in 2012; have continuously resided here since 2007; are current students, have completed high school, or are honorably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public

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Opinion of the Court
safety. Id., at 98a. DHS concluded that individuals who meet these criteria warrant favorable treatment under the immigration laws because they “lacked the intent to violate the law,” are “productive” contributors to our society, and “know only this country as home.” Id., at 98a–99a.
“[T]o prevent [these] low priority individuals from being removed from the United States,” the DACA Memorandum instructs Immigration and Customs Enforcement to “exercise prosecutorial discretion[ ] on an individual basis . . . by deferring action for a period of two years, subject to renewal.” Id., at 100a. In addition, it directs U. S. Citizenship and Immigration Services (USCIS) to “accept applications to determine whether these individuals qualify for work authorization during this period of deferred action,” id., at 101a, as permitted under regulations long predating DACA’s creation, see 8 CFR §274a.12(c)(14) (2012) (permitting work authorization for deferred action recipients who establish “economic necessity”); 46 Fed. Reg. 25080–25081 (1981) (similar). Pursuant to other regulations, deferred action recipients are considered “lawfully present” for purposes of, and therefore eligible to receive, Social Security and Medicare benefits. See 8 CFR §1.3(a)(4)(vi); 42 CFR §417.422(h) (2012).
In November 2014, two years after DACA was promulgated, DHS issued a memorandum announcing that it would expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extending the deferred action and work authorization period to three years. App. to Pet. for Cert. 106a–107a. In the same memorandum, DHS created a new, related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. That program would have authorized deferred action for up to 4.3 million parents whose children were U. S. citizens or lawful permanent residents. These parents were to enjoy the same forbearance, work eligibility, and other benefits as DACA

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Opinion of the Court

recipients.
Before the DAPA Memorandum was implemented, 26 States, led by Texas, filed suit in the Southern District of Texas. The States contended that DAPA and the DACA
expansion violated the APA’s notice and comment requirement, the Immigration and Nationality Act (INA), and the
Executive’s duty under the Take Care Clause of the Constitution. The District Court found that the States were likely to succeed on the merits of at least one of their claims and
entered a nationwide preliminary injunction barring implementation of both DAPA and the DACA expansion. See Texas v. United States, 86 F. Supp. 3d 591, 677–678 (2015).
A divided panel of the Court of Appeals for the Fifth Circuit affirmed the preliminary injunction. Texas v. United
States, 809 F. 3d 134, 188 (2015). In opposing the injunction, the Government argued that the DAPA Memorandum
reflected an unreviewable exercise of the Government’s enforcement discretion. The Fifth Circuit majority disagreed.
It reasoned that the deferred action described in the DAPA Memorandum was “much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated
benefits on a class of unlawfully present aliens.” Id., at 166. From this, the majority concluded that the creation of the
DAPA program was not an unreviewable action “committed to agency discretion by law.” Id., at 169 (quoting 5 U. S. C. §701(a)(2)).
The majority then upheld the injunction on two grounds. It first concluded the States were likely to succeed on their
procedural claim that the DAPA Memorandum was a substantive rule that was required to undergo notice and comment. It then held that the APA required DAPA to be set
aside because the program was “manifestly contrary” to the INA, which “expressly and carefully provides legal designa-
tions allowing defined classes” to “receive the benefits” associated with “lawful presence” and to qualify for work

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Opinion of the Court
authorization, 809 F. 3d, at 179–181, 186 (internal quotation marks omitted). Judge King dissented.
This Court affirmed the Fifth Circuit’s judgment by an equally divided vote, which meant that no opinion was issued. United States v. Texas, 579 U. S. ___ (2016) (per curiam). For the next year, litigation over DAPA and the DACA expansion continued in the Southern District of Texas, while implementation of those policies remained enjoined.
Then, in June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum. In explaining that decision, DHS cited the preliminary injunction and ongoing litigation in Texas, the fact that DAPA had never taken effect, and the new administration’s immigration enforcement priorities.
Three months later, in September 2017, Attorney General Jefferson B. Sessions III sent a letter to Acting Secretary of Homeland Security Elaine C. Duke, “advis[ing]” that DHS “should rescind” DACA as well. App. 877. Citing the Fifth Circuit’s opinion and this Court’s equally divided affirmance, the Attorney General concluded that DACA shared the “same legal . . . defects that the courts recognized as to DAPA” and was “likely” to meet a similar fate. Id., at 878. “In light of the costs and burdens” that a rescission would “impose[ ] on DHS,” the Attorney General urged DHS to “consider an orderly and efficient wind-down process.” Ibid.
The next day, Duke acted on the Attorney General’s advice. In her decision memorandum, Duke summarized the history of the DACA and DAPA programs, the Fifth Circuit opinion and ensuing affirmance, and the contents of the Attorney General’s letter. App. to Pet. for Cert. 111a–117a. “Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings” and the “letter from the Attorney General,” she concluded that the “DACA program should be terminated.” Id., at 117a.

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Duke then detailed how the program would be wound
down: No new applications would be accepted, but DHS would entertain applications for two-year renewals from DACA recipients whose benefits were set to expire within
six months. For all other DACA recipients, previously issued grants of deferred action and work authorization
would not be revoked but would expire on their own terms, with no prospect for renewal. Id., at 117a–118a.

B
Within days of Acting Secretary Duke’s rescission announcement, multiple groups of plaintiffs ranging from individual DACA recipients and States to the Regents of the University of California and the National Association for the Advancement of Colored People challenged her decision in the U. S. District Courts for the Northern District of California (Regents, No. 18–587), the Eastern District of New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588). The relevant claims are that the rescission was arbitrary and capricious in violation of the APA and that it infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause.1
All three District Courts ruled for the plaintiffs, albeit at different stages of the proceedings.2 In doing so, each court rejected the Government’s threshold arguments that the

—————— 1 Plaintiffs also raised notice and comment claims, which uniformly
failed below, and assorted due process challenges, some of which survived motions to dismiss. Those claims are not before us.
2 In a related challenge not at issue here, the District Court for the District of Maryland granted partial summary judgment in favor of the Government. Casa de Maryland v. United States Dept. of Homeland Security, 284 F. Supp. 3d 758 (2018). After the Government filed petitions for certiorari in the instant cases, the Fourth Circuit reversed that decision and vacated Acting Secretary Duke’s rescission as arbitrary and capricious. Casa de Maryland v. United States Dept. of Homeland Security, 924 F. 3d 684 (2019), cert. pending, No. 18–1469. The Fourth Circuit has since stayed its mandate.

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Opinion of the Court
claims were unreviewable under the APA and that the INA deprived the court of jurisdiction. 298 F. Supp. 3d 209, 223–224, 234–235 (DC 2018); 279 F. Supp. 3d 1011, 1029– 1033 (ND Cal. 2018); 295 F. Supp. 3d 127, 150, 153–154 (EDNY 2017).
In Regents and Batalla Vidal, the District Courts held that the equal protection claims were adequately alleged. 298 F. Supp. 3d 1304, 1315 (ND Cal. 2018); 291 F. Supp. 3d 260, 279 (EDNY 2018). Those courts also entered coextensive nationwide preliminary injunctions, based on the conclusion that the plaintiffs were likely to succeed on the merits of their claims that the rescission was arbitrary and capricious. These injunctions did not require DHS to accept new applications, but did order the agency to allow DACA recipients to “renew their enrollments.” 279 F. Supp. 3d, at 1048; see 279 F. Supp. 3d 401, 437 (EDNY 2018).
In NAACP, the D. C. District Court took a different course. In April 2018, it deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, holding that Acting Secretary Duke’s “conclusory statements were insufficient to explain the change in [the agency’s] view of DACA’s lawfulness.” 298 F. Supp. 3d, at 243. The District Court stayed its order for 90 days to permit DHS to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” Id., at 245.
Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded via memorandum. App. to Pet. for Cert. 120a–126a. She explained that, “[h]aving considered the Duke memorandum,” she “decline[d] to disturb” the rescission. Id., at 121a. Secretary Nielsen went on to articulate her “understanding” of Duke’s memorandum, identifying three reasons why, in Nielsen’s estimation, “the decision to rescind the DACA policy was, and remains, sound.” Ibid. First, she reiterated that, “as the Attorney

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REGENTS OF UNIV. OF CAL.

Opinion of the Court

General concluded, the DACA policy was contrary to law.”
Id., at 122a. Second, she added that, regardless, the agency had “serious doubts about [DACA’s] legality” and, for law enforcement reasons, wanted to avoid “legally questiona-
ble” policies. Id., at 123a. Third, she identified multiple policy reasons for rescinding DACA, including (1) the belief
that any class-based immigration relief should come from Congress, not through executive non-enforcement; (2) DHS’s preference for exercising prosecutorial discretion on
“a truly individualized, case-by-case basis”; and (3) the importance of “project[ing] a message” that immigration laws
would be enforced against all classes and categories of aliens. Id., at 123a–124a. In her final paragraph, Secretary
Nielsen acknowledged the “asserted reliance interests” in DACA’s continuation but concluded that they did not “outweigh the questionable legality of the DACA policy and the
other reasons” for the rescission discussed in her memorandum. Id., at 125a.
The Government asked the D. C. District Court to revise its prior order in light of the reasons provided by Secretary Nielsen, but the court declined. In the court’s view, the new
memorandum, which “fail[ed] to elaborate meaningfully” on the agency’s illegality rationale, still did not provide an
adequate explanation for the September 2017 rescission. 315 F. Supp. 3d 457, 460, 473–474 (2018).
The Government appealed the various District Court de-
cisions to the Second, Ninth, and D. C. Circuits, respectively. In November 2018, while those appeals were pend-
ing, the Government simultaneously filed three petitions for certiorari before judgment. After the Ninth Circuit affirmed the nationwide injunction in Regents, see 908 F. 3d
476 (2018), but before rulings from the other two Circuits, we granted the petitions and consolidated the cases for ar-
gument. 588 U. S. ___ (2019). The issues raised here are (1) whether the APA claims are reviewable, (2) if so,

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Opinion of the Court
whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim.
II
The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.
The APA “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U. S. 788, 796 (1992). It requires agencies to engage in “reasoned decisionmaking,” Michigan v. EPA, 576 U. S. 743, 750 (2015) (internal quotation marks omitted), and directs that agency actions be “set aside” if they are “arbitrary” or “capricious,” 5 U. S. C. §706(2)(A). Under this “narrow standard of review, . . . a court is not to substitute its judgment for that of the agency,” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 513 (2009) (internal quotation marks omitted), but instead to assess only whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971).
But before determining whether the rescission was arbitrary and capricious, we must first address the Government’s contentions that DHS’s decision is unreviewable under the APA and outside this Court’s jurisdiction.
A
The APA establishes a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action.’ ” Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967) (quoting §702). That presumption can be rebutted by a showing that the relevant statute “preclude[s]” review,

10

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

§701(a)(1), or that the “agency action is committed to
agency discretion by law,” §701(a)(2). The latter exception is at issue here.
To “honor the presumption of review, we have read the
exception in §701(a)(2) quite narrowly,” Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. ___, ___
(2018) (slip op., at 12), confining it to those rare “administrative decision[s] traditionally left to agency discretion,” Lincoln v. Vigil, 508 U. S. 182, 191 (1993). This limited cat-
egory of unreviewable actions includes an agency’s decision not to institute enforcement proceedings, Heckler v.
Chaney, 470 U. S. 821, 831–832 (1985), and it is on that exception that the Government primarily relies.
In Chaney, several death-row inmates petitioned the Food and Drug Administration (FDA) to take enforcement
action against two States to prevent their use of certain drugs for lethal injection. The Court held that the FDA’s denial of that petition was presumptively unreviewable in
light of the well-established “tradition” that “an agency’s decision not to prosecute or enforce” is “generally commit-
ted to an agency’s absolute discretion.” Id., at 831. We identified a constellation of reasons that underpin this tradition. To start, a non-enforcement decision “often involves
a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise,” such as
“whether the particular enforcement action requested best fits the agency’s overall policies.” Ibid. The decision also
mirrors, “to some extent,” a prosecutor’s decision not to indict, which has “long been regarded as the special province of the Executive Branch.” Id., at 832. And, as a practical
matter, “when an agency refuses to act” there is no action to “provide[ ] a focus for judicial review.” Ibid.
The Government contends that a general non-enforcement policy is equivalent to the individual non-enforcement decision at issue in Chaney. In each case, the Government
argues, the agency must balance factors peculiarly within

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its expertise, and does so in a manner akin to a criminal prosecutor. Building on that premise, the Government argues that the rescission of a non-enforcement policy is no different—for purposes of reviewability—from the adoption of that policy. While the rescission may lead to increased enforcement, it does not, by itself, constitute a particular enforcement action. Applying this logic to the facts here, the Government submits that DACA is a non-enforcement policy and that its rescission is therefore unreviewable.
But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class. Ibid. Instead, it directed USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria. App. to Pet. for Cert. 100a. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively “adjudicat[ions].” Id., at 117a. And the result of these adjudications—DHS’s decision to “grant deferred action,” Brief for Petitioners 45—is an “affirmative act of approval,” the very opposite of a “refus[al] to act,” Chaney, 470 U. S., at 831–832. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832.
The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. See supra, at 3. Unlike an agency’s refusal to take requested enforcement action, access to these

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

types of benefits is an interest “courts often are called upon
to protect.” Chaney, 470 U. S., at 832. See also Barnhart v. Thomas, 540 U. S. 20 (2003) (reviewing eligibility determi-
nation for Social Security benefits). Because the DACA program is more than a non-enforce-
ment policy, its rescission is subject to review under the
APA.

B
The Government also invokes two jurisdictional provisions of the INA as independent bars to review. Neither applies.
Section 1252(b)(9) bars review of claims arising from “action[s]” or “proceeding[s] brought to remove an alien.” 66 Stat. 209, as amended, 8 U. S. C. §1252(b)(9). That targeted language is not aimed at this sort of case. As we have said before, §1252(b)(9) “does not present a jurisdictional bar” where those bringing suit “are not asking for review of an order of removal,” “the decision . . . to seek removal,” or “the process by which . . . removability will be determined.” Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 10–11); id., at ___ (BREYER, J., dissenting) (slip op., at 31). And it is certainly not a bar where, as here, the parties are not challenging any removal proceedings.
Section 1252(g) is similarly narrow. That provision limits review of cases “arising from” decisions “to commence proceedings, adjudicate cases, or execute removal orders.” §1252(g). We have previously rejected as “implausible” the Government’s suggestion that §1252(g) covers “all claims arising from deportation proceedings” or imposes “a general jurisdictional limitation.” Reno v. American-Arab AntiDiscrimination Comm., 525 U. S. 471, 482 (1999). The rescission, which revokes a deferred action program with associated benefits, is not a decision to “commence proceedings,” much less to “adjudicate” a case or “execute” a

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removal order. With these preliminary arguments out of the way, we
proceed to the merits.
III A
Deciding whether agency action was adequately explained requires, first, knowing where to look for the agency’s explanation. The natural starting point here is the explanation provided by Acting Secretary Duke when she announced the rescission in September 2017. But the Government urges us to go on and consider the June 2018 memorandum submitted by Secretary Nielsen as well. That memo was prepared after the D. C. District Court vacated the Duke rescission and gave DHS an opportunity to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” 298 F. Supp. 3d, at 245. According to the Government, the Nielsen Memorandum is properly before us because it was invited by the District Court and reflects the views of the Secretary of Homeland Security—the official responsible for immigration policy. Respondents disagree, arguing that the Nielsen Memorandum, issued nine months after the rescission, impermissibly asserts prudential and policy reasons not relied upon by Duke.
It is a “foundational principle of administrative law” that judicial review of agency action is limited to “the grounds that the agency invoked when it took the action.” Michigan, 576 U. S., at 758. If those grounds are inadequate, a court may remand for the agency to do one of two things: First, the agency can offer “a fuller explanation of the agency’s reasoning at the time of the agency action.” Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (1990) (emphasis added). See also Alpharma, Inc. v.

14

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Leavitt, 460 F. 3d 1, 5–6 (CADC 2006) (Garland, J.) (per-
mitting an agency to provide an “amplified articulation” of a prior “conclusory” observation (internal quotation marks omitted)). This route has important limitations. When an
agency’s initial explanation “indicate[s] the determinative reason for the final action taken,” the agency may elaborate
later on that reason (or reasons) but may not provide new ones. Camp v. Pitts, 411 U. S. 138, 143 (1973) (per curiam). Alternatively, the agency can “deal with the problem
afresh” by taking new agency action. SEC v. Chenery Corp., 332 U. S. 194, 201 (1947) (Chenery II). An agency taking
this route is not limited to its prior reasons but must comply with the procedural requirements for new agency action.
The District Court’s remand thus presented DHS with a choice: rest on the Duke Memorandum while elaborating on its prior reasoning, or issue a new rescission bolstered by
new reasons absent from the Duke Memorandum. Secretary Nielsen took the first path. Rather than making a new
decision, she “decline[d] to disturb the Duke memorandum’s rescission” and instead “provide[d] further explanation” for that action. App. to Pet. for Cert. 121a. Indeed,
the Government’s subsequent request for reconsideration described the Nielsen Memorandum as “additional expla-
nation for [Duke’s] decision” and asked the District Court to “leave in place [Duke’s] September 5, 2017 decision to rescind the DACA policy.” Motion to Revise Order in No. 17–
cv–1907 etc. (D DC), pp. 2, 19. Contrary to the position of the Government before this Court, and of JUSTICE
KAVANAUGH in dissent, post, at 4 (opinion concurring in judgment in part and dissenting in part), the Nielsen Memorandum was by its own terms not a new rule implementing
a new policy. Because Secretary Nielsen chose to elaborate on the rea-
sons for the initial rescission rather than take new administrative action, she was limited to the agency’s original reasons, and her explanation “must be viewed critically” to

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Opinion of the Court
ensure that the rescission is not upheld on the basis of impermissible “post hoc rationalization.” Overton Park, 401 U. S., at 420. But despite purporting to explain the Duke Memorandum, Secretary Nielsen’s reasoning bears little relationship to that of her predecessor. Acting Secretary Duke rested the rescission on the conclusion that DACA is unlawful. Period. See App. to Pet. for Cert. 117a. By contrast, Secretary Nielsen’s new memorandum offered three “separate and independently sufficient reasons” for the rescission, id., at 122a, only the first of which is the conclusion that DACA is illegal.
Her second reason is that DACA is, at minimum, legally questionable and should be terminated to maintain public confidence in the rule of law and avoid burdensome litigation. No such justification can be found in the Duke Memorandum. Legal uncertainty is, of course, related to illegality. But the two justifications are meaningfully distinct, especially in this context. While an agency might, for one reason or another, choose to do nothing in the face of uncertainty, illegality presumably requires remedial action of some sort.
The policy reasons that Secretary Nielsen cites as a third basis for the rescission are also nowhere to be found in the Duke Memorandum. That document makes no mention of a preference for legislative fixes, the superiority of case-bycase decisionmaking, the importance of sending a message of robust enforcement, or any other policy consideration. Nor are these points included in the legal analysis from the Fifth Circuit and the Attorney General. They can be viewed only as impermissible post hoc rationalizations and thus are not properly before us.
The Government, echoed by JUSTICE KAVANAUGH, protests that requiring a new decision before considering Nielsen’s new justifications would be “an idle and useless formality.” NLRB v. Wyman-Gordon Co., 394 U. S. 759, 766,

16

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

n. 6 (1969) (plurality opinion). See also post, at 5. Proce-
dural requirements can often seem such. But here the rule serves important values of administrative law. Requiring a new decision before considering new reasons promotes
“agency accountability,” Bowen v. American Hospital Assn., 476 U. S. 610, 643 (1986), by ensuring that parties and the
public can respond fully and in a timely manner to an agency’s exercise of authority. Considering only contemporaneous explanations for agency action also instills confi-
dence that the reasons given are not simply “convenient litigating position[s].” Christopher v. SmithKline Beecham
Corp., 567 U. S. 142, 155 (2012) (internal quotation marks omitted). Permitting agencies to invoke belated justifica-
tions, on the other hand, can upset “the orderly functioning of the process of review,” SEC v. Chenery Corp., 318 U. S.
80, 94 (1943), forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered
nine months after Duke announced the rescission and after three different courts had identified flaws in the original explanation.
JUSTICE KAVANAUGH asserts that this “foundational principle of administrative law,” Michigan, 576 U. S., at
758, actually limits only what lawyers may argue, not what agencies may do. Post, at 5. While it is true that the Court
has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc ration-
alizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with
equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency
or by agency officials themselves. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 539 (1981)
(“[T]he post hoc rationalizations of the agency . . . cannot serve as a sufficient predicate for agency action.”); Overton

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Opinion of the Court
Park, 401 U. S., at 419 (rejecting “litigation affidavits” from agency officials as “merely ‘post hoc’ rationalizations”).3
Justice Holmes famously wrote that “[m]en must turn square corners when they deal with the Government.” Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). But it is also true, particularly when so much is at stake, that “the Government should turn square corners in dealing with the people.” St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.
B
We turn, finally, to whether DHS’s decision to rescind DACA was arbitrary and capricious. As noted earlier, Acting Secretary Duke’s justification for the rescission was succinct: “Taking into consideration” the Fifth Circuit’s conclusion that DAPA was unlawful because it conferred benefits in violation of the INA, and the Attorney General’s conclusion that DACA was unlawful for the same reason, she concluded—without elaboration—that the “DACA program should be terminated.” App. to Pet. for Cert. 117a.4
—————— 3 JUSTICE KAVANAUGH further argues that the contemporaneous expla-
nation requirement applies only to agency adjudications, not rulemakings. Post, at 5–6 (opinion concurring in judgment in part and dissenting in part). But he cites no authority limiting this basic principle— which the Court regularly articulates in the context of rulemakings—to adjudications. The Government does not even raise this unheralded argument.
4 The Government contends that Acting Secretary Duke also focused on litigation risk. Although the background section of her memo references a letter from the Texas Attorney General threatening to challenge DACA, the memo never asserts that the rescission was intended to avert litigation. And, given the Attorney General’s conclusion that the policy was unlawful—and thus presumably could not be maintained or defended in its current form—it is difficult to see how the risk of litigation

18

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Respondents maintain that this explanation is deficient
for three reasons. Their first and second arguments work in tandem, claiming that the Duke Memorandum does not adequately explain the conclusion that DACA is unlawful,
and that this conclusion is, in any event, wrong. While those arguments carried the day in the lower courts, in our
view they overlook an important constraint on Acting Secretary Duke’s decisionmaking authority—she was bound by the Attorney General’s legal determination.
The same statutory provision that establishes the Secretary of Homeland Security’s authority to administer and en-
force immigration laws limits that authority, specifying that, with respect to “all questions of law,” the determinations of the Attorney General “shall be controlling.” 8
U. S. C. §1103(a)(1). Respondents are aware of this constraint. Indeed they emphasized the point in the reviewa-
bility sections of their briefs. But in their merits arguments, respondents never addressed whether or how this unique statutory provision might affect our review. They
did not discuss whether Duke was required to explain a legal conclusion that was not hers to make. Nor did they dis-
cuss whether the current suits challenging Duke’s rescission decision, which everyone agrees was within her legal authority under the INA, are proper vehicles for attacking
the Attorney General’s legal conclusion. Because of these gaps in respondents’ briefing, we do not
evaluate the claims challenging the explanation and cor-
rectness of the illegality conclusion. Instead we focus our attention on respondents’ third argument—that Acting Sec-
retary Duke “failed to consider . . . important aspect[s] of the problem” before her. Motor Vehicle Mfrs. Assn. of
United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983).

—————— carried any independent weight.

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Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General. But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS.
Acting Secretary Duke plainly exercised such discretionary authority in winding down the program. See App. to Pet. for Cert. 117a–118a (listing the Acting Secretary’s decisions on eight transition issues). Among other things, she specified that those DACA recipients whose benefits were set to expire within six months were eligible for two-year renewals. Ibid.
But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off. The Attorney General concluded that “the DACA policy has the same legal . . . defects that the courts recognized as to DAPA.” App. 878. So, to understand those defects, we look to the Fifth Circuit, the highest court to offer a reasoned opinion on the legality of DAPA. That court described the “core” issue before it as the “Secretary’s decision” to grant “eligibility for benefits”— including work authorization, Social Security, and Medicare—to unauthorized aliens on “a class-wide basis.” Texas, 809 F. 3d, at 170; see id., at 148, 184. The Fifth Circuit’s focus on these benefits was central to every stage of its analysis. See id., at 155 (standing); id., at 163 (zone of interest); id., at 164 (applicability of §1252(g)); id., at 166 (reviewability); id., at 176–177 (notice and comment); id., at 184 (substantive APA). And the Court ultimately held that DAPA was “manifestly contrary to the INA” precisely because it “would make 4.3 million otherwise removable aliens” eligible for work authorization and public benefits. Id., at 181–182 (internal quotation marks omitted).5
—————— 5 As the Fifth Circuit noted, DAPA recipients were eligible for Social

20

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

But there is more to DAPA (and DACA) than such bene-
fits. The defining feature of deferred action is the decision to defer removal (and to notify the affected alien of that decision). See App. to Pet. for Cert. 99a. And the Fifth Circuit
was careful to distinguish that forbearance component from eligibility for benefits. As it explained, the “challenged por-
tion of DAPA’s deferred-action program” was the decision to make DAPA recipients eligible for benefits. See Texas, 809 F. 3d, at 168, and n. 108. The other “[p]art of DAPA,”
the court noted, “involve[d] the Secretary’s decision—at least temporarily—not to enforce the immigration laws as
to a class of what he deem[ed] to be low-priority illegal aliens.” Id., at 166. Borrowing from this Court’s prior description of deferred action, the Fifth Circuit observed that
“the states do not challenge the Secretary’s decision to ‘decline to institute proceedings, terminate proceedings, or de-
cline to execute a final order of deportation.’ ” Id., at 168 (quoting Reno, 525 U. S., at 484). And the Fifth Circuit un-
derscored that nothing in its decision or the preliminary injunction “requires the Secretary to remove any alien or to alter” the Secretary’s class-based “enforcement priorities.”
Texas, 809 F. 3d, at 166, 169. In other words, the Secretary’s forbearance authority was unimpaired.
Acting Secretary Duke recognized that the Fifth Circuit’s holding addressed the benefits associated with DAPA. In her memorandum she explained that the Fifth Circuit con-

—————— Security and Medicare benefits because they had been designated “lawfully present.” Texas, 809 F. 3d, at 168. Lawful presence is a statutory prerequisite for receipt of certain benefits. See id., at 148 (citing 8 U. S. C. §1611). It is not the same as forbearance nor does it flow inexorably from forbearance. Thus, while deferred action recipients have been designated lawfully present for purposes of Social Security and Medicare eligibility, see 8 CFR §1.3; 42 CFR §417.422(h), agencies can also exclude them from this designation, see 45 CFR §152.2(8) (2019) (specifying that DACA recipients are not considered lawfully present for purposes of coverage under the Affordable Care Act).

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Opinion of the Court
cluded that DAPA “conflicted with the discretion authorized by Congress” because the INA “ ‘flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.’ ” App. to Pet. for Cert. 114a (quoting Texas, 809 F. 3d, at 184). Duke did not characterize the opinion as one about forbearance.
In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116 Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.
That reasoning repeated the error we identified in one of our leading modern administrative law cases, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. There, the National Highway Traffic Safety Administration (NHTSA) promulgated a requirement that motor vehicles produced after 1982 be equipped with one of two passive restraints: airbags or automatic seatbelts. 463 U. S., at 37–38, 46. Four years later, before the requirement went into effect, NHTSA concluded that automatic seatbelts, the restraint of choice for most manufacturers, would not provide effective protection. Based on that premise, NHTSA rescinded the passive restraint requirement in full. Id., at 38.
We concluded that the total rescission was arbitrary and capricious. As we explained, NHTSA’s justification supported only “disallow[ing] compliance by means of ” automatic seatbelts. Id., at 47. It did “not cast doubt” on the

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

“efficacy of airbag technology” or upon “the need for a
passive restraint standard.” Ibid. Given NHTSA’s prior judgment that “airbags are an effective and cost-beneficial lifesaving technology,” we held that “the mandatory
passive restraint rule [could] not be abandoned without any consideration whatsoever of an airbags-only requirement.”
Id., at 51. While the factual setting is different here, the error is the
same. Even if it is illegal for DHS to extend work authori-
zation and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits. Id., at 47. It
did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to child-
hood arrivals. Ibid. Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children
and “know only this country as home,” App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be re-
scinded in full “without any consideration whatsoever” of a forbearance-only policy, State Farm, 463 U. S., at 51.6
The Government acknowledges that “[d]eferred action
coupled with the associated benefits are the two legs upon which the DACA policy stands.” Reply Brief 21. It insists,
however, that “DHS was not required to consider whether DACA’s illegality could be addressed by separating” the

—————— 6 The three-page memorandum that established DACA is devoted en-
tirely to forbearance, save for one sentence directing USCIS to “determine whether [DACA recipients] qualify for work authorization.” App. to Pet. for Cert. 101a. The benefits associated with DACA flow from a separate regulation. See 8 CFR §1.3(a)(4)(vi); see also 42 CFR §417.422(h) (cross-referencing 8 CFR §1.3). Thus, DHS could have addressed the Attorney General’s determination that such benefits were impermissible under the INA by amending 8 CFR §1.3 to exclude DACA recipients from those benefits without rescinding the DACA Memorandum and the forbearance policy it established. But Duke’s rescission memo shows no cognizance of this possibility.

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Opinion of the Court
two. Ibid. According to the Government, “It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.” Ibid. Perhaps. But that response misses the point. The fact that there may be a valid reason not to separate deferred action from benefits does not establish that DHS considered that option or that such consideration was unnecessary.
The lead dissent acknowledges that forbearance and benefits are legally distinct and can be decoupled. Post, at 21– 22, n. 14 (opinion of THOMAS, J). It contends, however, that we should not “dissect” agency action “piece by piece.” Post, at 21. The dissent instead rests on the Attorney General’s legal determination—which considered only benefits—“to supply the ‘reasoned analysis’ ” to support rescission of both benefits and forbearance. Post, at 22 (quoting State Farm, 463 U. S., at 42). But State Farm teaches that when an agency rescinds a prior policy its reasoned analysis must consider the “alternative[s]” that are “within the ambit of the existing [policy].” Id., at 51. Here forbearance was not simply “within the ambit of the existing [policy],” it was the centerpiece of the policy: DACA, after all, stands for “Deferred Action for Childhood Arrivals.” App. to Pet. for Cert. 111a (emphasis added). But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits. Duke “entirely failed to consider [that] important aspect of the problem.” State Farm, 463 U. S., at 43.
That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). When an agency changes course, as DHS did here, it must “be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’ ” Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___ (2016)

24

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

(slip op., at 9) (quoting Fox Television, 556 U. S., at 515). “It
would be arbitrary and capricious to ignore such matters.” Id., at 515. Yet that is what the Duke Memorandum did.
For its part, the Government does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government’s view, shared by the
lead dissent, DACA recipients have no “legally cognizable reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and pro-
vided benefits only in two-year increments. Reply Brief 16– 17; App. to Pet. for Cert. 125a. See also post, at 23–24 (opin-
ion of THOMAS, J). But neither the Government nor the lead dissent cites any legal authority establishing that such fea-
tures automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that
consideration must be undertaken by the agency in the first instance, subject to normal APA review. There was no such
consideration in the Duke Memorandum. Respondents and their amici assert that there was much
for DHS to consider. They stress that, since 2012, DACA
recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even
married and had children, all in reliance” on the DACA program. Brief for Respondent Regents of Univ. of California et al. in No. 18–587, p. 41 (Brief for Regents). The conse-
quences of the rescission, respondents emphasize, would “radiate outward” to DACA recipients’ families, including
their 200,000 U. S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. See id., at
41–42; Brief for Respondent State of New York et al. in No. 18–589, p. 42 (Brief for New York). See also Brief for 143
Businesses as Amici Curiae 17 (estimating that hiring and training replacements would cost employers $6.3 billion).

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Opinion of the Court
In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Brief for Regents 6. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year. Ibid.
These are certainly noteworthy concerns, but they are not necessarily dispositive. To the Government and lead dissent’s point, DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum. Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight. And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it.
DHS has considerable flexibility in carrying out its responsibility. The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipients whose benefits were set to expire within six months. But Duke’s consideration was solely for the purpose of assisting the agency in dealing with “administrative complexities.” App. to Pet. for Cert. 116a–118a. She should have considered whether she had similar flexibility in addressing any reliance interests of DACA recipients. The lead dissent contends that accommodating such interests would be “another exercise of unlawful power,” post, at 23 (opinion of THOMAS, J.), but the Government does not make that argument and DHS has already extended benefits for purposes other than reliance, following consultation with the Office of the Attorney General. App. to Pet. for Cert. 116a.

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Had Duke considered reliance interests, she might, for
example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommo-
dating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say,
graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient
weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion.
To be clear, DHS was not required to do any of this or to
“consider all policy alternatives in reaching [its] decision.” State Farm, 463 U. S., at 51. Agencies are not compelled to
explore “every alternative device and thought conceivable by the mind of man.” Vermont Yankee Nuclear Power Corp.
v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551 (1978). But, because DHS was “not writing on a blank
slate,” post, at 22, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such
interests against competing policy concerns. The lead dissent sees all the foregoing differently. In its
view, DACA is illegal, so any actions under DACA are themselves illegal. Such actions, it argues, must cease immediately and the APA should not be construed to impede that
result. See post, at 19–23 (opinion of THOMAS, J.). The dissent is correct that DACA was rescinded because
of the Attorney General’s illegality determination. See ante, at 20. But nothing about that determination fore-
closed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters
but did not. That failure was arbitrary and capricious in violation of the APA.

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27

OpOinpiionnioonf oRfOtBhEeRCTSo,uCrt. J.
IV
Lastly, we turn to respondents’ claim that the rescission violates the equal protection guarantee of the Fifth Amendment.
The parties dispute the proper framing of this claim. The Government contends that the allegation that the Executive, motivated by animus, ended a program that disproportionately benefits certain ethnic groups is a selective enforcement claim. Such a claim, the Government asserts, is barred by our decision in Reno v. American-Arab AntiDiscrimination Committee. See 525 U. S., at 488 (holding that “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation”). Respondents counter that their claim falls outside the scope of that precedent because they are not challenging individual enforcement proceedings. We need not resolve this debate because, even if the claim is cognizable, the allegations here are insufficient.
To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Id., at 266–268. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.
None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized

28

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

OpOinpiionnioonf oRfOtBhEeRCTSo,uCrt. J.

share of recipients of any cross-cutting immigration relief
program. See B. Baker, DHS, Office of Immigration Statistics, Population Estimates, Illegal Alien Population Residing in the United States: January 2015, Table 2 (Dec.
2018), https://www.dhs.gov/sites/default/files/publications/ 18_1214_PLCY_pops-est-report.pdf. Were this fact suffi-
cient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.
Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that “DACA received reaffirmation by [DHS] as
recently as three months before the rescission,” 908 F. 3d, at 519 (quoting 298 F. Supp. 3d, at 1315), referring to the
June 2017 DAPA rescission memo, which stated that DACA would “remain in effect,” App. 870. But this reasoning confuses abstention with reaffirmation. The DAPA memo did
not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that
DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.” 908 F. 3d, at 519. It was a natural response to a newly identified
problem. Finally, the cited statements are unilluminating. The
relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements
by [either] that would give rise to an inference of discriminatory motive.” 291 F. Supp. 3d, at 278. Instead, respond-
ents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these state-
ments—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of
the decision at issue. Arlington Heights, 429 U. S., at 268. Thus, like respondents’ other points, the statements fail to

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29

Opinion of the Court
raise a plausible inference that the rescission was motivated by animus.
* * *
We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.
The judgment in NAACP, No. 18–588, is affirmed.7 The judgment in Regents, No. 18–587, is vacated in part and reversed in part. And in Batalla Vidal, No. 18–589, the February 13, 2018 order granting respondents’ motion for a preliminary injunction is vacated, the November 9, 2017 order partially denying the Government’s motion to dismiss is affirmed in part, and the March 29, 2018 order partially denying the balance of the Government’s motion to dismiss is reversed in part. All three cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

—————— 7 Our affirmance of the NAACP order vacating the rescission makes it
unnecessary to examine the propriety of the nationwide scope of the injunctions issued by the District Courts in Regents and Batalla Vidal.

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1

SOOpTiOnMioAnYOofRS, JO.T,OcMonAcYuOrRr,inJg.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE SOTOMAYOR, concurring in part, concurring in the judgment in part, and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of SOTOMAYOR, J.

The majority rightly holds that the Department of Home-
land Security (DHS) violated the Administrative Procedure Act in rescinding the Deferred Action for Childhood Arrivals (DACA) program. But the Court forecloses any chal-
lenge to the rescission under the Equal Protection Clause. I believe that determination is unwarranted on the existing
record and premature at this stage of the litigation. I would instead permit respondents to develop their equal protection claims on remand.
Respondents’ equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state sufficient facts that
would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U. S. 662, 678 (2009). The three courts to evaluate respondents’ pleadings below held that they cleared
this modest threshold. 908 F. 3d 476, 518–520 (CA9 2018) (affirming the District Court’s denial of the Government’s motion to dismiss); see also Batalla Vidal v. Nielsen, 291 F.
Supp. 3d 260, 274 (EDNY 2018). I too would permit respondents’ claims to proceed on re-
mand. The complaints each set forth particularized facts that plausibly allege discriminatory animus. The plurality disagrees, reasoning that “[n]one of these points, either sin-
gly or in concert, establishes a plausible equal protection claim.” Ante, at 27. But it reaches that conclusion by dis-
counting some allegations altogether and by narrowly viewing the rest.
First, the plurality dismisses the statements that President Trump made both before and after he assumed office. The Batalla Vidal complaints catalog then-candidate
Trump’s declarations that Mexican immigrants are “people that have lots of problems,” “the bad ones,” and “criminals,
drug dealers, [and] rapists.” 291 F. Supp. 3d, at 276 (internal quotation marks omitted). The Regents complaints ad-

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3

Opinion of SOTOMAYOR, J.
ditionally quote President Trump’s 2017 statement comparing undocumented immigrants to “animals” responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, [and] MS13.” 298 F. Supp. 3d 1304, 1314 (ND Cal. 2018) (internal quotation marks omitted). The plurality brushes these aside as “unilluminating,” “remote in time,” and having been “made in unrelated contexts.” Ante, at 28.
But “nothing in our precedent supports [the] blinkered approach” of disregarding any of the campaign statements as remote in time from later-enacted policies. Trump v. Hawaii, 585 U. S. ___, ___, n. 3 (2018) (SOTOMAYOR, J., dissenting) (slip op., at 11, n. 3). Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to respondents, were an animating force behind the rescission of DACA. Cf. ibid. (noting that Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017), which barred entry of individuals from several Muslim-majority countries, was an outgrowth of the President’s campaign statements about Muslims). Taken together, “the words of the President” help to “create the strong perception” that the rescission decision was “contaminated by impermissible discriminatory animus.” 585 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip op., at 13). This perception provides respondents with grounds to litigate their equal protection claims further.
Next, the plurality minimizes the disproportionate impact of the rescission decision on Latinos after considering this point in isolation. Ante, at 28 (“Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds”). But the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail. At the motion-to-dismiss

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of SOTOMAYOR, J.

stage, I would not so readily dismiss the allegation that an
executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier.
Finally, the plurality finds nothing untoward in the “specific sequence of events leading up to the challenged deci-
sion.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (1977). I disagree. As late as June 2017, DHS insisted it remained committed to
DACA, even while rescinding a related program, the Deferred Action for Parents of Americans and Lawful Perma-
nent Residents. App. 718–720. But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termi-
nation. The abrupt change in position plausibly suggests that something other than questions about the legality of
DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision . . . made and the rationale . . . provided.” Depart-
ment of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 26). Only by bypassing context does the plural-
ity conclude otherwise.

* * *
The facts in respondents’ complaints create more than a “sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U. S., at 678. Whether they ultimately amount to actionable discrimination should be determined only after factual development on remand. Because the Court prematurely disposes of respondents’ equal protection claims by overlooking the strength of their complaints, I join all but Part IV of the opinion and do not concur in the corresponding part of the judgment.

Cite as: 591 U. S. ____ (2020)

1

TOHpOinMiAoSn, oJf.,TdHisOsMeAnSti,nJg.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE THOMAS, with whom JUSTICE ALITO and
JUSTICE GORSUCH join, concurring in the judgment in part and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

Between 2001 and 2011, Congress considered over two
dozen bills that would have granted lawful status to millions of aliens who were illegally brought to this country as children. Each of those legislative efforts failed. In the
wake of this impasse, the Department of Homeland Security (DHS) under President Barack Obama took matters
into its own hands. Without any purported delegation of authority from Congress and without undertaking a rulemaking, DHS unilaterally created a program known as
Deferred Action for Childhood Arrivals (DACA). The threepage DACA memorandum made it possible for approximately 1.7 million illegal aliens to qualify for temporary
lawful presence and certain federal and state benefits. When President Donald Trump took office in 2017, his Act-
ing Secretary of Homeland Security, acting through yet another memorandum, rescinded the DACA memorandum. To state it plainly, the Trump administration rescinded
DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.
Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging
in the routine application of standard principles of administrative law. On the contrary, this is anything but a stand-
ard administrative law case. DHS created DACA during the Obama administration
without any statutory authorization and without going
through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority
does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capri-
cious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s
determination of illegality is sound, our review should be at an end.

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3

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.
Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration. I respectfully dissent in part.1
I A
In 2012, after more than two dozen attempts by Congress to grant lawful status to aliens who were brought to this country as children,2 the then-Secretary of Homeland Security Janet Napolitano announced, by memorandum, a new
—————— 1 I concur in the judgment insofar as the majority rejects respondents’
equal protection claim. 2 See Immigrant Children’s Educational Advancement and Dropout

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

“prosecutorial discretion” policy known as DACA. App. to
Pet. for Cert. in No. 18–587, p. 97a. The memorandum directed immigration enforcement officers not to remove “certain young people who were brought to this country as chil-
dren” that met delineated criteria. Id., at 97a–98a. In the Secretary’s view, the program was consistent with “the
framework of the existing law.” Id., at 101a. DACA granted a renewable 2-year period of “deferred ac-
tion” that made approximately 1.7 million otherwise remov-
able aliens eligible to remain in this country temporarily.3 By granting deferred action, the memorandum also made
recipients eligible for certain state and federal benefits, including Medicare and Social Security. See 8 U. S. C. §§1611(b)(2)–(4); 8 CFR §1.3(a)(4)(vi) (2020); 45 CFR
§152.2(4)(vi) (2019). In addition, deferred action enabled the recipients to seek work authorization. 8 U. S. C.

—————— Prevention Act of 2001, H. R. 1582, 107th Cong., 1st Sess.; Student Adjustment Act of 2001, H. R. 1918, 107th Cong., 1st Sess.; DREAM Act, S. 1291, 107th Cong., 1st Sess. (2001); DREAM Act, S. 1545, 108th Cong., 1st Sess. (2003); Student Adjustment Act of 2003, H. R. 1684, 108th Cong., 1st Sess.; DREAM Act, S. 2863, 108th Cong., 2d Sess., Tit. XVIII (2003); DREAM Act of 2005, S. 2075, 109th Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong., 2d Sess., Tit. VI, Subtitle C; American Dream Act, H. R. 5131, 109th Cong., 2d Sess. (2006); DREAM Act of 2007, S. 774, 110th Cong., 1st Sess.; DREAM Act of 2007, S. 2205, 110th Cong., 1st Sess.; STRIVE Act of 2007, H. R. 1645, 110th Cong., 1st Sess., Tit. VI, Subtitle B; Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong., 1st Sess., Tit. VI, Subtitle C; DREAM Act of 2009, S. 729, 111th Cong., 1st Sess.; American Dream Act, H. R. 1751, 111th Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2010, S. 3932, 111th Cong., 2d Sess., Tit. V, Subtitle D; DREAM Act of 2010, S. 3827, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3962, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3963, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3992, 111th Cong., 2d Sess.; DREAM Act of 2010, H. R. 6497, 111th Cong., 2d Sess.; DREAM Act of 2011, S. 952, 112th Cong., 1st Sess.
3 See J. Passel & M. Lopez, Pew Research Center, Up to 1.7 Million Unauthorized Immigrant Youth May Benefit From New Deportation Rules (Aug. 14, 2012).

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5

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
§1324a(h)(3)(B); 8 CFR §274a.12(c)(14). Despite these changes, the memorandum contradictorily claimed that it “confer[red] no substantive right [or] immigration status,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” App. to Pet. for Cert. in No. 18–587, at 101a.
In 2014, then-Secretary of Homeland Security Jeh Johnson broadened the deferred-action program in yet another brief memorandum. This 2014 memorandum expanded DACA eligibility by extending the deferred-action period to three years and by relaxing other criteria. It also implemented a related program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA allowed unlawfully present parents to obtain deferred action derivatively through their children who were either citizens or lawful permanent residents. Approximately 4.3 million aliens qualified for DAPA and, as with DACA, these individuals would have become eligible for certain federal and state benefits upon the approval of their DAPA applications. See Texas v. United States, 809 F. 3d 134, 181 (CA5 2015). Nevertheless, the 2014 memorandum repeated the incongruous assertion that these programs “d[id] not confer any form of legal status in this country” and added that deferred action “may be terminated at any time at the agency’s discretion.” App. to Pet. for Cert. in No. 18–587, at 104a.
B
Twenty-six States filed suit to enjoin the implementation of these new programs, DAPA and “expanded DACA,” maintaining that they violated the Constitution, the Administrative Procedure Act (APA), and the Immigration and Naturalization Act (INA). The States contended that, because the 2014 memorandum allowed aliens to receive deferred action and other benefits, it amounted to a legislative rule that had to comply with the APA’s notice and

6

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

comment procedures. The States also argued that DHS’ de-
cision to recategorize an entire class of aliens from “unlawfully present” to “lawfully present” exceeded its statutory authority under the federal immigration laws. According
to the States, these defects rendered the 2014 memorandum arbitrary, capricious, or otherwise not in accordance
with law. The District Court preliminarily enjoined DAPA and ex-
panded DACA. The Fifth Circuit affirmed, rejecting DHS’
claim that the programs were an exercise of prosecutorial discretion. Texas, 809 F. 3d, at 167, 188. The court con-
cluded that the States were likely to succeed on their claim that the 2014 memorandum was a legislative rule that had to be adopted through notice and comment rulemaking. Id.,
at 171–178. The court further concluded that the 2014 memorandum was “substantively contrary to law” because
the INA did not grant DHS the statutory authority to implement either program. Id., at 170, 178–186.
This Court affirmed the Fifth Circuit’s judgment by an equally divided vote. United States v. Texas, 579 U. S. ___ (2016) (per curiam).

C
The 2014 memorandum was rescinded on June 15, 2017, before taking effect. Shortly after that rescission, several of the plaintiff States sent a letter to then-Attorney General Jefferson Sessions III. They contended that the 2012 DACA memorandum was also legally defective because, “just like DAPA, DACA unilaterally confers eligibility for . . . lawful presence without any statutory authorization from Congress.” App. 873. The States wrote that they would amend their complaint to challenge DACA if the administration did not rescind the 2012 memorandum creating DACA by September 5, 2017.
On September 4, then-Attorney General Sessions wrote to then-Acting Secretary of Homeland Security Elaine

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7

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
Duke, advising her to rescind DACA. Sessions stated that, in his legal opinion, DACA took effect “through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id., at 877. The letter also stated that DACA was infected with the “same legal . . . defects that the courts recognized as to DAPA,” id., at 878, and thus DACA would likely be enjoined as well.
Then-Acting Secretary Duke rescinded DACA the next day, also through a memorandum. Her memorandum began by noting that DACA “purported to use deferred action . . . to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.” App. to Pet. for Cert. in No. 18–587, at 112a. It described the history of the Fifth Circuit litigation, noting that the court had concluded that DAPA “conflicted with the discretion authorized by Congress” because “the [INA] flatly does not permit the reclassification of millions of illegal aliens as lawfully present.” Id., at 114a (internal quotation marks omitted). Finally, the memorandum accepted then-Attorney General Sessions’ legal determination that DACA was unlawful for the same reasons as DAPA. See §1103(a)(1). In light of the legal conclusions reached by the Fifth Circuit and the Attorney General, then-Acting Secretary Duke set forth the procedures for winding down DACA.
These three cases soon followed. In each, respondents claimed, among other things, that DACA’s rescission was arbitrary and capricious under the APA. Two District Courts granted a preliminary nationwide injunction, while the third vacated the rescission.
II
“ ‘[A]n agency literally has no power to act . . . unless and

8

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

until Congress confers power upon it.’ ” Arlington v. FCC,
569 U. S. 290, 317 (2013) (ROBERTS, C. J., dissenting) (quoting Louisiana Pub. Serv. Comm’n v. FCC, 476 U. S. 355,
374 (1986)). When an agency exercises power beyond the bounds of its authority, it acts unlawfully. See, e.g., SAS Institute Inc. v. Iancu, 584 U. S. ___, ___, n. (2018) (slip op.,
at 11, n.). The 2012 memorandum creating DACA provides a poignant illustration of ultra vires agency action.
DACA alters how the immigration laws apply to a certain class of aliens. “DACA [recipients] primarily entered the country either by overstaying a visa or by entering without
inspection, and the INA instructs that aliens in both classes are removable.” Texas v. United States, 328 F. Supp. 3d
662, 713 (SD Tex. 2018) (footnote omitted). But DACA granted its recipients deferred action, i.e., a decision to “de-
cline to institute [removal] proceedings, terminate [removal] proceedings, or decline to institute a final order of [removal].” Reno v. American-Arab Anti-Discrimination
Comm., 525 U. S. 471, 484 (1999) (internal quotation marks omitted). Under other regulations, recipients of deferred
action are deemed lawfully present for purposes of certain federal benefits. See supra, at 4. Thus, DACA in effect cre-
ated a new exception to the statutory provisions governing removability and, in the process, conferred lawful presence on an entire class of aliens.
To lawfully implement such changes, DHS needed a grant of authority from Congress to either reclassify remov-
able DACA recipients as lawfully present, or to exempt the entire class of aliens covered by DACA from statutory removal procedures. No party disputes that the immigration
statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immi-
gration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth. Accordingly, DACA
is substantively unlawful.

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THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
This conclusion should begin and end our review. The decision to rescind an unlawful agency action is per se lawful. No additional policy justifications or considerations are necessary. And, the majority’s contrary holding—that an agency is not only permitted, but required, to continue an ultra vires action—has no basis in law.
A
Congress has not authorized DHS to reclassify an entire class of removable aliens as lawfully present or to categorically exempt aliens from statutory removal provisions.
1
I begin with lawful presence. As just stated, nothing in the federal immigration laws expressly delegates to DHS the unfettered discretion to create new categories of lawfully present aliens. And, there is no basis for concluding that Congress implicitly delegated to DHS the power to reclassify categories of aliens as lawfully present. The immigration statutes provide numerous ways to obtain lawful presence, both temporary and permanent. The highly detailed nature of these provisions indicates that Congress has exhaustively provided for all of the ways that it thought lawful presence should be obtainable, leaving no discretion to DHS to add new pathways.
For example, federal immigration laws provide over 60 temporary nonimmigrant visa options, including visas for ambassadors, full-time students and their spouses and children, those engaged to marry a United States citizen within 90 days of arrival, athletes and performers, and aliens with specialized knowledge related to their employers. See §§1101(a)(15)(A)–(V), 1184; 8 CFR §214.1; see also Congressional Research Service, J. Wilson, Nonimmigrant and Immigrant Visa Categories: Data Brief 1–6 (2019) (Table 1). In addition, the statutes permit the Attorney General to grant temporary “parole” into the United States “for urgent

10

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

humanitarian reasons or [a] significant public benefit,” 8
U. S. C. §1182(d)(5)(A); provide for temporary protected status when the Attorney General finds that removal to a country with an ongoing armed conflict “would pose a seri-
ous threat to [an alien’s] personal safety,” §1254a(b)(1)(A); and allow the Secretary of Homeland Security (in consulta-
tion with the Secretary of State) to waive visa requirements for certain aliens for up to 90 days, §§1187(a)–(d).
The immigration laws are equally complex and detailed
when it comes to obtaining lawful permanent residence. Congress has expressly specified numerous avenues for obtaining an immigrant visa, which aliens may then use
to become lawful permanent residents. §§1201, 1255(a). Among other categories, immigrant visas are available to
specified family-sponsored aliens, aliens with advanced degrees or exceptional abilities, certain types of skilled and unskilled workers, “special immigrants,” and those enter-
ing the country to “engag[e] in a new commercial enterprise.” §§1153(a)–(b), 1154; see also Congressional Re-
search Service, Nonimmigrant and Immigrant Visa Categories, at 6–7 (Table 2). Refugees and asylees also may receive lawful permanent residence under certain condi-
tions, §1159; 8 CFR §§209.1, 209.2.4 As with temporary lawful presence, each avenue to lawful permanent resi-
dence status has its own set of rules and exceptions.5 As the Fifth Circuit held in the DAPA litigation, a conclu-
sion with which then-Attorney General Sessions agreed,
“specific and detailed provisions[ of] the INA expressly and

—————— 4 The immigration statutes also provide for conditional lawful perma-
nent residence status. See §1186a(b)(1)(A)(i) (two years for spouses to demonstrate that the marriage “was [not] entered into for the purpose of procuring an alien’s admission as an immigrant”); §1186b (qualifying business entrepreneurs).
5 For instance, Congress has carved out rules for aliens who served in the Armed Forces, §§1438–1440, and alien spouses who have been subject to domestic abuse, §§1186a(c)(4)(C)–(D).

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carefully provid[e] legal designations allowing defined classes of aliens to be lawfully present.” Texas, 809 F. 3d, at 179. In light of this elaborate statutory scheme, the lack of any similar provision for DACA recipients convincingly establishes that Congress left DHS with no discretion to create an additional class of aliens eligible for lawful presence. Congress knows well how to provide broad discretion, and it has provided open-ended delegations of authority in statutes too numerous to name. But when it comes to lawful presence, Congress did something strikingly different. Instead of enacting a statute with “broad general directives” and leaving it to the agency to fill in the lion’s share of the details, Mistretta v. United States, 488 U. S. 361, 372 (1989), Congress put in place intricate specifications governing eligibility for lawful presence. This comprehensive scheme indicates that DHS has no discretion to supplement or amend the statutory provisions in any manner, least of all by memorandum. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 125 (2000) (An agency “may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted” (internal quotation marks omitted)); see also ETSI Pipeline Project v. Missouri, 484 U. S. 495, 509–510 (1988).
2
The relief that Congress has extended to removable aliens likewise confirms that DACA exceeds DHS’ delegated authority. Through deferred action, DACA grants temporary relief to removable aliens on a programmatic scale. See Texas, 328 F. Supp. 3d, at 714. But as with lawful presence, Congress did not expressly grant DHS the authority to create categorical exceptions to the statute’s removal requirements. And again, as with lawful presence, the intricate level of detail in the federal immigration laws regarding relief from removal indicates that DHS has no discretionary authority to supplement that relief with an

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entirely new programmatic exemption.
At the outset, Congress clearly knows how to provide for classwide deferred action when it wishes to do so. On multiple occasions, Congress has used express language to
make certain classes of individuals eligible for deferred action. See 8 U. S. C. §§1154(a)(1)(D)(i)(II), (IV) (certain indi-
viduals covered under the Violence Against Women Act are “eligible for deferred action”); Victims of Trafficking and Violence Protection Act of 2000, 114 Stat. 1522 (“ ‘Any individ-
ual described in subclause (I) is eligible for deferred action’ ”); Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Ter-
rorism (USA PATRIOT ACT) Act of 2001, §423(b), 115 Stat. 361 (“Such spouse, child, son, or daughter may be eligible
for deferred action”); National Defense Authorization Act for Fiscal Year 2004, §§1703(c)(1)(A), (2), 117 Stat. 1694– 1695 (“Such spouse or child shall be eligible for deferred ac-
tion”).6 Congress has failed to provide similar explicit provisions for DACA recipients, and the immigration laws con-
tain no indication that DHS can, at will, create its own categorical policies for deferred action.
Other provisions pertaining to relief from removal fur-
ther demonstrate that DHS lacked the delegated authority

—————— 6 In the DAPA litigation, DHS noted that some deferred-action pro-
grams have been implemented by the Executive Branch without explicit legislation. But “ ‘past practice does not, by itself, create [executive] power.’ ” Medellín v. Texas, 552 U. S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U. S. 654, 686 (1981)). If any of these programs had been challenged, it would seem that they would be legally infirm for the same reasons as DACA. Moreover, if DHS had the authority to create new categories of aliens eligible for deferred action, then all of Congress’ deferred-action legislation was but a superfluous exercise. Duncan v. Walker, 533 U. S. 167, 174 (2001). Finally, whereas some deferred-action programs were followed by legislation, DACA has existed for eight years, and Congress is no closer to a legislative solution than it was in 2012. See, e.g., American Dream and Promise Act of 2019, H. R. 6, 116th Cong., 1st Sess.

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to create DACA. As with lawful presence, Congress has provided a plethora of methods by which aliens may seek relief from removal. For instance, both permanent and temporary residents can seek cancellation of removal if they meet certain residency requirements and have not committed certain crimes. §§1229b(a)–(b). And certain nonpermanent residents may have their status adjusted to permanent residence during these proceedings. §1229b(b)(2). Aliens can apply for asylum or withholding of removal during removal proceedings unless they have committed certain crimes. §§1158, 1231(b)(3). Applicants for certain nonimmigrant visas may be granted a stay of removal until the visa application is adjudicated. §1227(d). And, aliens may voluntarily depart rather than be subject to an order of removal. §1229c.
In sum, like lawful presence, Congress has provided for relief from removal in specific and complex ways. This nuanced detail indicates that Congress has provided the full panoply of methods it thinks should be available for an alien to seek relief from removal, leaving no discretion to DHS to provide additional programmatic forms of relief.7
3
Finally, DHS could not appeal to general grants of authority, such as the Secretary’s ability to “perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter,” §1103(a)(3), or to “[e]stablis[h] national immigration enforcement policies and priorities,” 6 U. S. C. §202(5). See also 8 U. S. C. §1103(g)(2). Because we must interpret the statutes “as a
—————— 7 It is uncontested that deferred action frequently occurs on a case-by-
case basis, often justified on the grounds that the agency lacks resources to remove all removable aliens. Even assuming that these ad hoc exercises of discretion are permissible, however, we have stated that “[a]n agency confronting resource constraints may change its own conduct, but it cannot change the law.” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 327 (2014).

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THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

symmetrical and coherent regulatory scheme,” Gustafson v.
Alloyd Co., 513 U. S. 561, 569 (1995), these grants of authority must be read alongside the express limits contained
within the statute. Basing the Secretary’s ability to completely overhaul immigration law on these general grants of authority would eviscerate that deliberate statutory
scheme by “allow[ing the Secretary of DHS] to grant lawful presence . . . to any illegal alien in the United States.” Texas, 809 F. 3d, at 184. Not only is this “an untenable po-
sition in light of the INA’s intricate system,” ibid., but it would also render many of those provisions wholly super-
fluous due to DHS’ authority to disregard them at will, Duncan v. Walker, 533 U. S. 167, 174 (2001). And in addi-
tion to these fatal problems, adopting a broad interpretation of these general grants of authority would run afoul of
the presumption that “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking
Assns., Inc., 531 U. S. 457, 468 (2001). And it would also conflict with the major questions doctrine, which is based
on the expectation that Congress speaks clearly when it delegates the power to make “decisions of vast economic and political significance.” Utility Air Regulatory Group v. EPA,
573 U. S. 302, 324 (2014) (UARG) (internal quotation marks omitted); see also Texas, 787 F. 3d, at 760–761.
Read together, the detailed statutory provisions governing temporary and lawful permanent resident status, relief
from removal, and classwide deferred-action programs lead ineluctably to the conclusion that DACA is “inconsisten[t] with the design and structure of the statute as a whole.”
University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 353 (2013). As the District Court stated in
the DAPA litigation and as then-Attorney General Sessions agreed, “[i]nstead of merely refusing to enforce the INA’s
removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence . . . to

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individuals Congress has deemed deportable or removable.” Texas v. United States, 86 F. Supp. 3d 591, 654 (SD Tex. 2015). The immigration statutes contain a level of granular specificity that is exceedingly rare in the modern administrative state. It defies all logic and common sense to conclude that a statutory scheme detailed enough to provide conditional lawful presence to groups as narrowly defined as “alien entrepreneurs,” §1186b, is simultaneously capacious enough for DHS to grant lawful presence to almost two million illegal aliens with the stroke of a Cabinet secretary’s pen.
B
Then-Attorney General Sessions concluded that the initial DACA program suffered from the “same legal . . . defects” as DAPA and expanded DACA, finding that, like those programs, DACA was implemented without statutory authority. App. 877–878. Not only was this determination correct, but it is also dispositive for purposes of our review. “It is axiomatic that an administrative agency’s power . . . is limited to the authority granted by Congress.” Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 208 (1988). DHS had no authority here to create DACA, and the unlawfulness of that program is a sufficient justification for its rescission.
The majority opts for a different path, all but ignoring DACA’s substantive legal defect. See ante, at 18–19. On the majority’s understanding of APA review, DHS was required to provide additional policy justifications in order to rescind an action that it had no authority to take. This rule “has no basis in our jurisprudence, and support for [it] is conspicuously absent from the Court’s opinion.” Massachusetts v. EPA, 549 U. S. 497, 536 (2007) (ROBERTS, C. J., dissenting).
The lack of support for the majority’s position is hardly

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surprising in light of our Constitution’s separation of pow-
ers. No court can compel Executive Branch officials to exceed their congressionally delegated powers by continuing a program that was void ab initio. Cf. Clinton v. City of New
York, 524 U. S. 417 (1998); INS v. Chadha, 462 U. S. 919 (1983); see also EPA v. EME Homer City Generation, L. P.,
572 U. S. 489, 542, n. 5 (2014) (Scalia, J., dissenting); Public Citizen v. Department of Justice, 491 U. S. 440, 487 (1989)
(Kennedy, J., concurring in judgment). In reviewing agency action, our role is to ensure that Executive Branch officials
do not transgress the proper bounds of their authority, Arlington, 569 U. S., at 327 (ROBERTS, C. J., dissenting), not
to perpetuate a decision to unlawfully wield power in direct contravention of the enabling statute’s clear limits, see UARG, 573 U. S., at 327–328; Barnhart v. Sigmon Coal Co.,
534 U. S. 438, 462 (2002). Under our precedents, DHS can only exercise the author-
ity that Congress has chosen to delegate to it. See UARG, 573 U. S., at 327. In implementing DACA, DHS under the Obama administration arrogated to itself power it was not
given by Congress. Thus, every action taken by DHS under DACA is the unlawful exercise of power. Now, under the
Trump administration, DHS has provided the most compelling reason to rescind DACA: The program was unlawful and would force DHS to continue acting unlawfully if it car-
ried the program forward.

III
The majority’s demanding review of DHS’ decisionmaking process is especially perverse given that the 2012 memorandum flouted the APA’s procedural requirements—the very requirements designed to prevent arbitrary decisionmaking. Even if DHS were authorized to create DACA, it could not do so without undertaking an administrative rulemaking. The fact that DHS did not engage in this process likely provides an independent basis for rescinding

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DACA. But at the very least, this procedural defect compounds the absurdity of the majority’s position in these cases.
As described above, DACA fundamentally altered the immigration laws. It created a new category of aliens who, as a class, became exempt from statutory removal procedures, and it gave those aliens temporary lawful presence. Both changes contravened statutory limits. DACA is thus what is commonly called a substantive or legislative rule.8 As the name implies, our precedents state that legislative rules are those that “have the force and effect of law.” Chrysler Corp. v. Brown, 441 U. S. 281, 295 (1979) (internal quotation marks omitted).
Our precedents allow the vast majority of legislative rules to proceed through so-called “informal” notice and comment rulemaking. See United States v. Florida East Coast R. Co., 410 U. S. 224, 237–238 (1973).9 But under our precedents, an agency must engage in certain procedures mandated by the APA before its rule carries legal force. Kisor v. Wilkie, 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 23) (“[A] legislative rule, . . . to be valid[,] must go through notice and comment”); id., at ___ (GORSUCH, J., concurring in judgment) (slip op., at 17) (same); Perez v. Mortgage Bankers Assn., 575 U. S. 92, 96 (2015); cf. Azar v. Allina Health Services, 587 U. S. ___, ___ (2019) (slip op., at 1) (same with respect to materially identical procedures under the Medicare Act). These procedures specify that the agency “shall” publish a notice of proposed rulemaking in
—————— 8 The majority tacitly acknowledges as much, as it must. See ante, at
11–12. Otherwise, the majority would have to accept that DACA was nothing more than a policy of prosecutorial discretion, which would make its rescission unreviewable. See Heckler v. Chaney, 470 U. S. 821, 831 (1985).
9 As I have previously pointed out, “the APA actually contemplated a much more formal process for most rulemaking.” Perez v. Mortgage Bankers Assn., 575 U. S. 92, 128, n. 5 (2015) (opinion concurring in judgment).

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THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

the Federal Register, justify the rule by reference to legal
authority, describe “the subjects and issues involved” in the rule, and allow interested parties to submit comments. 5 U. S. C. §§553(b)–(c); see also Kisor, 588 U. S., at ___ (opin-
ion of GORSUCH, J.) (slip op., at 17). As we have recognized recently, use of the word “shall” indicates that these proce-
dures impose mandatory obligations on the agency before it can adopt a valid binding regulation. See Maine Community Health Options v. United States, 590 U. S. ___, ___
(2020) (slip op., at 12). After undergoing notice and comment, the agency then publishes the final rule, which must
“articulate a satisfactory explanation for [the] action including a rational connection between the facts found and
the choice made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463
U. S. 29, 43 (1983) (internal quotation marks omitted). Only after completing this process is the legislative rule a valid law. See Kisor, 588 U. S., at ___ (opinion of GORSUCH,
J.) (slip op., at 17).10 Because DACA has the force and effect of law, DHS was
required to observe the procedures set out in the APA if it wanted to promulgate a legislative rule. It is undisputed, however, that DHS did not do so. It provided no oppor-
tunity for interested parties to submit comments regarding the effect that the program’s dramatic and very significant
change in immigration law would have on various aspects of society. It provided no discussion of economic considerations or national security interests. Nor did it provide any
substantial policy justifications for treating young people

—————— 10 The APA also provides certain exceptions from notice and comment
rulemaking. For example, an agency may promulgate a legally binding rule without notice and comment if good cause exists to do so. 5 U. S. C. §553(b)(B). This text would become a nullity if the agency could achieve the same effect by simply dispensing with notice and comment procedures altogether.

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brought to this country differently from other classes of aliens who have lived in the country without incident for many years. And, it did not invoke any law authorizing DHS to create such a program beyond its inexplicable assertion that DACA was consistent with existing law. Because DHS failed to engage in the statutorily mandated process, DACA never gained status as a legally binding regulation that could impose duties or obligations on third parties. See id., at ___ (plurality opinion) (slip op., at 23); id., at ___ (opinion of GORSUCH, J.) (slip op., at 17).
Given this state of affairs, it is unclear to me why DHS needed to provide any explanation whatsoever when it decided to rescind DACA. Nothing in the APA suggests that DHS was required to spill any ink justifying the rescission of an invalid legislative rule, let alone that it was required to provide policy justifications beyond acknowledging that the program was simply unlawful from the beginning. And, it is well established that we do not remand for an agency to correct its reasoning when it was required by law to take or abstain from an action. See Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U. S. 527, 544–545 (2008). Here, remand would be futile, because no amount of policy explanation could cure the fact that DHS lacked statutory authority to enact DACA in the first place.
Instead of recognizing this, the majority now requires the rescinding Department to treat the invalid rule as though it were legitimate. As just explained, such a requirement is not supported by the APA.11 It is also absurd, as evidenced by its application to DACA in these cases. The majority insists that DHS was obligated to discuss its choices regarding benefits and forbearance in great detail, even

—————— 11 Thus, it is not that the APA “should not” be construed to support the
majority’s result, ante, at 26 (emphasis added), it is that the APA does not and cannot support that result.

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though no such detailed discussion accompanied DACA’s is-
suance. And, the majority also requires DHS to discuss reliance interests at length, even though deferred action traditionally does not take reliance interests into account and
DHS was not forced to explain its treatment of reliance interests in the first instance by going through notice and
comment. See infra, at 23–24. The majority’s demand for such an explanation here simply makes little sense.
At bottom, of course, none of this matters, because DHS
did provide a sufficient explanation for its action. DHS’ statement that DACA was ultra vires was more than suffi-
cient to justify its rescission.12 By requiring more, the majority has distorted the APA review process beyond recognition, further burdening all future attempts to rescind
unlawful programs. Plaintiffs frequently bring successful challenges to agency actions by arguing that the agency has
impermissibly dressed up a legislative rule as a policy statement and must comply with the relevant procedures before functionally binding regulated parties. See, e.g., Mendoza
v. Perez, 754 F. 3d 1002 (CADC 2014); Natural Resources Defense Council v. EPA, 643 F. 3d 311 (CADC 2011); Na-
tional Family Planning & Reproductive Health Assn., Inc. v. Sullivan, 979 F. 2d 227 (CADC 1992). But going forward,
when a rescinding agency inherits an invalid legislative rule that ignored virtually every rulemaking requirement
of the APA, it will be obliged to overlook that reality. Instead of simply terminating the program because it did not go through the requisite process, the agency will be com-
pelled to treat an invalid legislative rule as though it were legitimate.13

—————— 12 I express no view on what other reasons would justify an agency’s
decision to rescind a procedurally unlawful action. I merely point out that correctly concluding that the program was illegal is sufficient.
13 In my view, even if DACA were permitted under the federal immigration laws and had complied with the APA, it would still violate the Constitution as an impermissible delegation of legislative power. See

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IV
Even if I were to accept the majority’s premise that DACA’s rescission required additional policy justifications, the majority’s reasons for setting aside the agency’s decision still fail.
A
First, the majority claims that the Fifth Circuit discussed only the legality of the 2014 memorandum’s conferral of benefits, not its “forbearance component”—i.e., the decision not to place DACA recipients into removal proceedings. Ante, at 20. The majority, therefore, claims that, notwithstanding the then-Attorney General’s legal conclusion, then-Acting Secretary Duke was required to consider revoking DACA recipients’ lawful presence and other attendant benefits while continuing to defer their removal. Ante, at 22–23. Even assuming the majority correctly characterizes the Fifth Circuit’s opinion, it cites no authority for the proposition that arbitrary and capricious review requires an agency to dissect an unlawful program piece by piece, scrutinizing each separate element to determine whether it would independently violate the law, rather than just to rescind the entire program.14
—————— Department of Transportation v. Association of American Railroads, 575 U. S. 43, 77 (2015) (THOMAS, J., concurring in judgment). Putting aside this constitutional concern, however, the notice and comment process at least attempts to provide a “surrogate political process” that takes some of the sting out of the inherently undemocratic and unaccountable rulemaking process. Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L. Rev. 703, 708 (1999).
14 The majority’s interpretation of the Fifth Circuit’s opinion is highly questionable. Because a grant of deferred action renders DACA recipients eligible for certain benefits and work authorization, it is far from clear that the Department could separate DACA’s “forbearance component” from the major benefits it conferred without running into yet another APA problem. The majority points to the fact that, under the Patient Protection and Affordable Care Act of 2010, relevant regulations exclude those receiving deferred action through DACA from coverage.

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DEPARTMENT OF HOMELAND SECURITY v.

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THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

The then-Attorney General reviewed the thorough deci-
sions of the District Court and the Fifth Circuit. Those courts exhaustively examined the INA’s text and structure, the relevant provisions of other federal immigration stat-
utes, the historical practice of deferred action, and the general grants of statutory authority to set immigration policy.
Both decisions concluded that DAPA and expanded DACA violated the carefully crafted federal immigration scheme, that such violations could not be justified through reference
to past exercises of deferred action, and that the general grants of statutory authority did not give DHS the power to enact such a sweeping nonenforcement program. Based on
the reasoning of those decisions, then-Attorney General Sessions concluded that DACA was likewise implemented
without statutory authority. He directed DHS to restore the rule of law. DHS followed the then-Attorney General’s legal analysis and rescinded the program. This legal con-
clusion more than suffices to supply the “reasoned analysis” necessary to rescind an unlawful program. State Farm, 463
U. S., at 42. The majority has no answer except to suggest that this
approach is inconsistent with State Farm. See ante, at 21– 22. But in doing so, the majority ignores the fact that, unlike the typical “prior policy” contemplated by the Court in

—————— Ante, at 19, n. 5. But that misses the point. Those regulations were promulgated before “anyone with deferred action under the DACA process applie[d]” for those benefits. See 77 Fed. Reg. 52616 (2012). By contrast, DACA recipients have been eligible for and have received Medicare, Social Security, and work authorization for years. DHS therefore is not writing on a blank slate. Under the majority’s rule, DHS would need to amend all relevant regulations and explain why all recipients of deferred action who have previously received such benefits may no longer receive them. Alternatively and perhaps more problematically, it would need to provide a reason why other recipients of deferred action should continue to qualify, while DACA recipients should not. It thus seems highly likely that the majority’s proposed course of action would be subject to serious arbitrary and capricious challenges.

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State Farm, DACA is unlawful. Neither State Farm nor any other decision cited by the majority addresses what an agency must do when it has inherited an unlawful program. It is perhaps for this reason that, rather than responding with authority of its own, the majority simply opts to excise the “unlawful policy” aspect from its discussion.
B
Second, the majority claims that DHS erred by failing to take into account the reliance interests of DACA recipients. Ante, at 23–26. But reliance interests are irrelevant when assessing whether to rescind an action that the agency lacked statutory authority to take. No amount of reliance could ever justify continuing a program that allows DHS to wield power that neither Congress nor the Constitution gave it. Any such decision would be “not in accordance with law” or “in excess of statutory . . . authority.” 5 U. S. C. §§706(2)(A), (C). Accordingly, DHS would simply be engaging in yet another exercise of unlawful power if it used reliance interests to justify continuing the initially unlawful program, and a court would be obligated to set aside that action.15
Even if reliance interests were sometimes relevant when rescinding an ultra vires action, the rescission still would not be arbitrary and capricious here. Rather, as the majority does not dispute, the rescission is consistent with how deferred action has always worked. As a general matter, deferred action creates no rights—it exists at the Government’s discretion and can be revoked at any time. See App.

—————— 15 The majority contends that this argument does not carry force be-
cause the rescission implemented a winddown period during which recipients would continue to receive benefits. But whether DHS’ decision to wind down DACA was lawful is a separate question from whether DHS was required to consider reliance interests before discontinuing an unlawful program.

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

to Pet. for Cert. in No. 18–587, at 104a (DACA and ex-
panded DACA); 8 CFR §214.11(j)(3) (T visas); §214.14(d)(2) (U visas); 62 Fed. Reg. 63249, 63253 (1997) (discussing Exec. Order No. 12711 for certain citizens of the People’s
Republic of China). The Government has made clear time and again that, because “deferred action is not an immigra-
tion status, no alien has the right to deferred action. It is used solely in the discretion of the [Government] and confers no protection or benefit upon an alien.” DHS Immigra-
tion and Customs Enforcement Office of Detention and Removal, Detention and Deportation Officers’ Field Manual §20.8 (Mar. 27, 2006); see also Memorandum from D. Meiss-
ner, Comm’r, INS, to Regional Directors et al., pp. 11–12 (Nov. 17, 2000); Memorandum from W. Yates, Assoc. Direc-
tor of Operations, DHS, Citizenship and Immigration Servs., to Director, Vt. Serv. Center, p. 5 (2003). Thus, contrary to the majority’s unsupported assertion, ante, at 23,
this longstanding administrative treatment of deferred action provides strong evidence and authority for the proposi-
tion that an agency need not consider reliance interests in this context.16
Finally, it is inconceivable to require DHS to study reliance interests before rescinding DACA considering how the program was previously defended. DHS has made clear
since DACA’s inception that it would not consider such reliance interests. Contemporaneous with the DACA memo, DHS stated that “DHS can terminate or renew deferred ac-
tion at any time at the agency’s discretion.” Consideration

—————— 16 The majority’s approach will make it far more difficult to change
deferred-action programs going forward, which is hardly in keeping with this Court’s own understanding that deferred action is an “exercise in administrative discretion” used for administrative “convenience.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 484 (1999). Agencies will likely be less willing to grant deferred action knowing that any attempts to undo it will require years of litigation and time-consuming rulemakings.

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of Deferred Action for Childhood Arrivals Process, 89 Interpreter Releases 1557, App. 4, p. 2 (Aug. 20, 2012). In fact, DHS repeatedly argued in court that the 2014 memorandum was a valid exercise of prosecutorial discretion in part because deferred action created no rights on which recipients could rely. Before the Fifth Circuit, DHS stated that “DHS may revoke or terminate deferred action and begin removal proceedings at any time at its discretion.” Brief for Appellants in Texas v. United States, No. 15–40238, p. 7; see also id., at 45–46. And before this Court, in that same litigation, DHS reiterated that “DHS has absolute discretion to revoke deferred action unilaterally, without notice or process.” Brief for United States in United States v. Texas, O. T. 2015, No. 15–674, p. 5; see also id., at 37. If that treatment of reliance interests was incorrect, it provides yet one more example of a deficiency in DACA’s issuance, not its rescission.
* * *
President Trump’s Acting Secretary of Homeland Security inherited a program created by President Obama’s Secretary that was implemented without statutory authority and without following the APA’s required procedures. Then-Attorney General Sessions correctly concluded that this ultra vires program should be rescinded. These cases could—and should—have ended with a determination that his legal conclusion was correct.
Instead, the majority today concludes that DHS was required to do far more. Without grounding its position in either the APA or precedent, the majority declares that DHS was required to overlook DACA’s obvious legal deficiencies and provide additional policy reasons and justifications before restoring the rule of law. This holding is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority. I would

26

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

therefore reverse the judgments below and remand with instructions to dissolve the nationwide injunctions.

Cite as: 591 U. S. ____ (2020)

1

Opinion of ALITO, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE ALITO, concurring in the judgment in part and dissenting in part.
Anyone interested in the role that the Federal Judiciary

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of ALITO, J.

now plays in our constitutional system should consider
what has happened in these cases. Early in the term of the current President, his administration took the controversial step of attempting to rescind the Deferred Action for
Childhood Arrivals (DACA) program. Shortly thereafter, one of the nearly 700 federal district court judges blocked
this rescission, and since then, this issue has been mired in litigation. In November 2018, the Solicitor General filed petitions for certiorari, and today, the Court still does not
resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again. What this means is that the Federal Judiciary, with-
out holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term.
Our constitutional system is not supposed to work that way. I join JUSTICE THOMAS’s opinion. DACA presents a deli-
cate political issue, but that is not our business. As JUSTICE
THOMAS explains, DACA was unlawful from the start, and that alone is sufficient to justify its termination. But even
if DACA were lawful, we would still have no basis for overturning its rescission. First, to the extent DACA represented a lawful exercise of prosecutorial discretion, its re-
scission represented an exercise of that same discretion, and it would therefore be unreviewable under the Adminis-
trative Procedure Act. 5 U. S. C. §701(a)(2); see Heckler v. Chaney, 470 U. S. 821, 831–832 (1985). Second, to the ex-
tent we could review the rescission, it was not arbitrary and capricious for essentially the reasons explained by JUSTICE KAVANAUGH. See post, at 4–6 (opinion concurring in the
judgment in part and dissenting in part).

Cite as: 591 U. S. ____ (2020)

1

Opinion of KAVANAUGH, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE KAVANAUGH, concurring in the judgment in part and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

For the last 20 years, the country has engaged in consequential policy, religious, and moral debates about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. Those young immigrants do not have legal status in the United States under current statutory law. They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants.
In 2012, exercising its view of the Executive’s prosecutorial discretion under Article II and the immigration laws, President Obama’s administration unilaterally instituted a program known as Deferred Action for Childhood Arrivals, or DACA. Under DACA, eligible young immigrants may apply for and receive deferred action. They must renew their DACA status every two years. Under the program, the Executive Branch broadly forbears from enforcing certain immigration removal laws against DACA recipients. And by virtue of the forbearance, DACA recipients also become eligible for work authorization and other benefits.
Since 2017, President Trump’s administration has sought to rescind DACA based on its different and narrower understanding of the Executive’s prosecutorial discretion under Article II and the immigration laws. In its view, the Executive Branch legally may not, and as a policy matter should not, unilaterally forbear from enforcing the immigration laws against such a large class of individuals. The current administration has stated that it instead wants to work with Congress to enact comprehensive legislation that would address the legal status of those immigrants together with other significant immigration issues.
The question before the Court is whether the Executive Branch acted lawfully in ordering rescission of the ongoing DACA program. To begin with, all nine Members of the Court accept, as do the DACA plaintiffs themselves, that

Cite as: 591 U. S. ____ (2020)

3

Opinion of KAVANAUGH, J.
the Executive Branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress. Having previously adopted a policy of prosecutorial discretion and nonenforcement with respect to a particular class of offenses or individuals, the Executive Branch has the legal authority to rescind such a policy and resume enforcing the law enacted by Congress. The Executive Branch’s exercise of that rescission authority is subject to constitutional constraints and may also be subject to statutory constraints. The narrow legal dispute here concerns a statutory constraint— namely, whether the Executive Branch’s action to rescind DACA satisfied the general arbitrary-and-capricious standard of the Administrative Procedure Act, or APA.
The APA’s arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained. As the Court has long stated, judicial review under that standard is deferential to the agency. The Court may not substitute its policy judgment for that of the agency. The Court simply ensures that the agency has acted within a broad zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision. See FCC v. Fox Television Stations, Inc., 556 U. S. 502 (2009); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983).
The Executive Branch explained its decision to rescind DACA in two sequential memorandums by successive Secretaries of Homeland Security: the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. The Duke Memorandum focused on DACA’s perceived legal flaws. The Court today finds the Duke Memorandum insufficient under the APA’s arbitrary-and-capricious standard.
But regardless of whether the Court is correct about the Duke Memorandum, the Nielsen Memorandum more fully explained the Department’s legal reasons for rescinding

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

DACA, and clarified that even if DACA were lawful, the Department would still rescind DACA for a variety of policy reasons. The Nielsen Memorandum also expressly addressed the reliance interests of DACA recipients. The question under the APA’s deferential arbitrary-and-capricious standard is not whether we agree with the Department’s decision to rescind DACA. The question is whether the Nielsen Memorandum reasonably explained the decision to rescind DACA. Under ordinary application of the arbitrary-and-capricious standard, the Nielsen Memorandum—with its alternative and independent rationales and its discussion of reliance—would pass muster as an explanation for the Executive Branch’s action.
The Nielsen Memorandum was issued nine months after the Duke Memorandum. Under the Administrative Procedure Act, the Nielsen Memorandum is itself a “rule” setting forth “an agency statement of general . . . applicability and future effect designed to implement . . . policy.” 5 U. S. C. §551(4). Because it is a rule, the Nielsen Memorandum constitutes “agency action.” §551(13). As the Secretary of Homeland Security, Secretary Nielsen had the authority to decide whether to stick with Secretary Duke’s decision to rescind DACA, or to make a different decision. Like Secretary Duke, Secretary Nielsen chose to rescind DACA, and she provided additional explanation. Her memorandum was akin to common forms of agency action that follow earlier agency action on the same subject—for example, a supplemental or new agency statement of policy, or an agency order with respect to a motion for rehearing or reconsideration. Courts often consider an agency’s additional explanations of policy or additional explanations made, for example, on agency rehearing or reconsideration, or on remand from a court, even if the agency’s bottom-line decision itself does not change.
Yet the Court today jettisons the Nielsen Memorandum by classifying it as a post hoc justification for rescinding

Cite as: 591 U. S. ____ (2020)

5

Opinion of KAVANAUGH, J.
DACA. Ante, at 14–16. Under our precedents, however, the post hoc justification doctrine merely requires that courts assess agency action based on the official explanations of the agency decisionmakers, and not based on after-the-fact explanations advanced by agency lawyers during litigation (or by judges). See, e.g., State Farm, 463 U. S., at 50 (“courts may not accept appellate counsel’s post hoc rationalizations for agency action”); FPC v. Texaco Inc., 417 U. S. 380, 397 (1974) (same); NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438, 443–444 (1965) (same); Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168–169 (1962) (same). As the D. C. Circuit has explained, the post hoc justification doctrine “is not a time barrier which freezes an agency’s exercise of its judgment after an initial decision has been made and bars it from further articulation of its reasoning. It is a rule directed at reviewing courts which forbids judges to uphold agency action on the basis of rationales offered by anyone other than the proper decisionmakers.” Alpharma, Inc. v. Leavitt, 460 F. 3d 1, 6 (2006) (Garland, J.) (internal quotation marks omitted).
Indeed, the ordinary judicial remedy for an agency’s insufficient explanation is to remand for further explanation by the relevant agency personnel. It would make little sense for a court to exclude official explanations by agency personnel such as a Cabinet Secretary simply because the explanations are purportedly post hoc, and then to turn around and remand for further explanation by those same agency personnel. Yet that is the upshot of the Court’s application of the post hoc justification doctrine today. The Court’s refusal to look at the Nielsen Memorandum seems particularly mistaken, moreover, because the Nielsen Memorandum shows that the Department, back in 2018, considered the policy issues that the Court today says the Department did not consider. Ante, at 20–26.
To be sure, cases such as Overton Park and Camp v. Pitts suggest that courts reviewing certain agency adjudications

6

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

may in some circumstances decline to examine an after-thefact agency explanation. See Camp v. Pitts, 411 U. S. 138, 142–143 (1973) (per curiam); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 419–421 (1971). But agency adjudications are “concerned with the determination of past and present rights and liabilities,” Attorney General’s Manual on the Administrative Procedure Act 14 (1947), and implicate the due process interests of the individual parties to the adjudication. Judicial review of an adjudication therefore ordinarily focuses on what happened during the agency’s adjudication process of deciding that individual case.
Even if certain agency adjudications have a slightly more stringent restriction on post hoc explanations, the APA is “based upon a dichotomy between rule making and adjudication,” ibid., and this case involves an ongoing agency rule that has future effect—the rescission of DACA. The Nielsen Memorandum implements and explains the rescission of DACA. I am aware of no case from this Court, and the Court today cites none, that has employed the post hoc justification doctrine to exclude an agency’s official explanation of an agency rule. For purposes of arbitrary-and-capricious review, it does not matter whether the latest official explanation was two years ago or three years ago. What matters is whether the explanation was reasonable and followed the requisite procedures. In my view, the Court should consider the Nielsen Memorandum in deciding whether the Department’s rescission of DACA satisfies the APA’s arbitrary-and-capricious standard.
Because the Court excludes the Nielsen Memorandum, the Court sends the case back to the Department of Homeland Security for further explanation. Although I disagree with the Court’s decision to remand, the only practical consequence of the Court’s decision to remand appears to be some delay. The Court’s decision seems to allow the Department on remand to relabel and reiterate the substance

Cite as: 591 U. S. ____ (2020)

7

Opinion of KAVANAUGH, J.
of the Nielsen Memorandum, perhaps with some elaboration as suggested in the Court’s opinion. Ante, at 23–26.*
* * *
The Court’s resolution of this narrow APA issue of course cannot eliminate the broader uncertainty over the status of the DACA recipients. That uncertainty is a result of Congress’s inability thus far to agree on legislation, which in turn has forced successive administrations to improvise, thereby triggering many rounds of relentless litigation with the prospect of more litigation to come. In contrast to those necessarily short-lived and stopgap administrative measures, the Article I legislative process could produce a sturdy and enduring solution to this issue, one way or the other, and thereby remove the uncertainty that has persisted for years for these young immigrants and the Na-

—————— * Because I conclude that the Executive Branch satisfied the APA’s ar-
bitrary-and-capricious standard, I need not consider whether its prosecutorial enforcement policy was “committed to agency discretion by law” and therefore not subject to APA arbitrary-and-capricious review in the first place. 5 U. S. C. §701(a)(2). Several judges have advanced arguments suggesting that DACA—at least to the extent it was simply an exercise of forbearance authority—and the repeal of DACA are decisions about whether and to what extent to exercise prosecutorial discretion against a class of offenses or individuals, and are therefore unreviewable under the APA as “committed to agency discretion by law.” Ibid.; see Casa De Maryland v. United States Dept. of Homeland Security, 924 F. 3d 684, 709–715 (CA4 2019) (Richardson, J., concurring in part and dissenting in part); Regents of Univ. Cal. v. United States Dept. of Homeland Security, 908 F. 3d 476, 521–523 (CA9 2018) (Owens, J., concurring in judgment); see also Texas v. United States, 809 F. 3d 134, 196–202 (CA5 2015) (King, J., dissenting); Texas v. United States, 787 F. 3d 733, 770– 776 (CA5 2015) (Higginson, J., dissenting); cf. Heckler v. Chaney, 470 U. S. 821, 831–835 (1985); ICC v. Locomotive Engineers, 482 U. S. 270, 277–284 (1987); United States v. Nixon, 418 U. S. 683, 693 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); In re Aiken County, 725 F. 3d 255, 262–264 (CADC 2013).

8

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

tion’s immigration system. In the meantime, as to the narrow APA question presented here, I appreciate the Court’s careful analysis, but I ultimately disagree with its treatment of the Nielsen Memorandum. I therefore respectfully dissent from the Court’s judgment on plaintiffs’ APA claim, and I concur in the judgment insofar as the Court rejects plaintiffs’ equal protection claim.

 
 Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 1 of 8

1 JEFFREY M. DAVIDSON (SBN 248620)

MATTHEW RODRIQUEZ

ALAN BERSIN (SBN 63874)

Acting Attorney General of California

2 COVINGTON & BURLING LLP

CHRISTINE CHUANG

One Front Street, 35th Floor

JAMES F. ZAHRADKA II (SBN 196822)

3 San Francisco, CA 94111-5356

Supervising Deputy Attorneys General

Telephone: (415) 591-6000

1515 Clay Street, 20th Floor

4 Facsimile: (415) 591-6091

Oakland, CA 94612-0550

Email: jdavidson@cov.com,

Telephone: (510) 879-1247

5 abersin@cov.com

Email: James.Zahradka@doj.ca.gov

Attorneys for Plaintiff The Regents of the

Attorneys for Plaintiff State of California

6 University of California

JOSEPH W. COTCHETT (SBN 36324)

7 THEODORE J. BOUTROUS, JR. (SBN 132099) JUSTIN T. BERGER (SBN 250346)

ETHAN D. DETTMER (SBN 196046)

COTCHETT, PITRE & McCARTHY, LLP

8 GIBSON, DUNN & CRUTCHER LLP

San Francisco Airport Office Center

333 South Grand Avenue

840 Malcolm Road, Suite 200

9 Los Angeles, CA 90071-3197

Burlingame, CA 94010

Telephone: (213) 229-7000

Telephone: (650) 697-6000

10 Facsimile: (213) 229-7520

Facsimile: (650) 697-0577

Email: tboutrous@gibsondunn.com,

Email: jberger@cpmlegal.com

11 edettmer@gibsondunn.com

Attorneys for Plaintiff City of San Jose

Attorneys for Plaintiffs Dulce Garcia, Miriam

12 Gonzalez Avila, Saul Jimenez Suarez, Norma

STACEY M. LEYTON (SBN 203827)

Ramirez, Jirayut Latthivongskorn, Marco

ALTSHULER BERZON LLP

13 Antonio Salinas Munoz, Dulce Berenice Vargas 177 Post Street, Suite 300

Baltazar, Ericka Lisseth Daniel Santellan, Grisel San Francisco, CA 94108

14 Guadalupe Chavez Diaz, and Felipe Alvarez

Telephone: (415) 421-7151

Carrillo

Facsimile: (415) 362-8064

15

Email: sleyton@altber.com

Attorneys for Plaintiffs County of Santa Clara and

16

Service Employees International Union Local 521

17

(Additional counsel listed on signature page)

18 UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

20 THE REGENTS OF THE UNIVERSITY OF

CASE NO. 17-CV-05211-WHA

21 CALIFORNIA,

STIPULATION RE: VACATION OF

22

Plaintiff,

DEADLINES AND STAY OF

23

v.

PROCEEDINGS PENDING DEFENDANTS’ ACTIONS PURSUANT TO JANUARY 20,

24 U.S. DEPARTMENT OF HOMELAND

2021 PRESIDENTIAL MEMORANDUM RE: DACA

25 SECURITY and ALEJANDRO MAYORKAS,1 in his official capacity as
26 Secretary of the Department of Homeland Security,

Judge:

Hon. William Alsup

Trial Date: None set

Action Filed: September 8, 2017

27
1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary of Homeland Security Alejandro 28 Mayorkas is automatically substituted as a Defendant in his official capacity for former Acting Secretary

of Homeland Security David Pekoske.

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 2 of 8

1 Defendants.
2 STATE OF CALIFORNIA, STATE OF MAINE, STATE OF MARYLAND, and
3 STATE OF MINNESOTA,

CASE NO. 17-CV-05235-WHA

4

Plaintiffs,

5

v.

6 U.S. DEPARTMENT OF HOMELAND
7 SECURITY; ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland
8 Security; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; JOSEPH
9 EDLOW, in his purported official capacity as Deputy Director for Policy of the U.S.
10 Citizenship and Immigration Services2; and UNITED STATES OF AMERICA,
11 Defendants.
12
CITY OF SAN JOSE, a municipal corporation, CASE NO. 17-CV-05329-WHA 13
Plaintiffs, 14
v. 15
JOSEPH R. BIDEN, President of the United 16 States, in his official capacity,3 ALEJANDRO
MAYORKAS, in his official capacity, and the 17 UNITED STATES OF AMERICA,

18

Defendants.

19

CASE NO. 17-CV-05380-WHA

DULCE GARCIA; MIRIAM GONZALEZ 20 AVILA; SAUL JIMENEZ SUAREZ;

NORMA RAMIREZ; JIRAYUT 21 LATTHIVONGSKORN; MARCO ANTONIO

SALINAS MUNOZ; DULCE BERENICE 22 VARGAS BALTAZAR; ERICKA LISSETH

DANIEL SANTELLAN; GRISEL 23 GUADALUPE CHAVEZ DIAZ; and FELIPE

ALVAREZ CARRILLO, 24

Plaintiffs, 25

v. 26

27

2 Joseph Edlow left the Department of Homeland Security in January of 2021, and the office he

formerly occupied is currently vacant.

28

3 Pursuant to Federal Rule of Civil Procedure 25(d), President Joseph R. Biden is automatically

substituted as a Defendant in his official capacity for former President Donald J. Trump.

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 3 of 8

1 UNITED STATES OF AMERICA; U.S.
2 DEPARTMENT OF HOMELAND SECURITY; ALEJANDRO MAYORKAS, in
3 his official capacity as Secretary of Homeland Security; JOSEPH EDLOW, in his official
4 capacity as purported DHS Deputy Director of Policy; and UNITED STATES CITIZENSHIP
5 AND IMMIGRATION SERVICES,

6

Defendants.

7
COUNTY OF SANTA CLARA and 8 SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521, 9
Plaintiffs, 10
v. 11
JOSEPH R. BIDEN, in his official capacity as 12 President of the United States; ALEJANDRO
MAYORKAS, in his official capacity as 13 Secretary of the Department of Homeland
Security; U.S. DEPARTMENT OF 14 HOMELAND SECURITY; JOSEPH
EDLOW, in his official capacity as Deputy 15 Director of Policy of USCIS; and U.S.
CITIZENSHIP AND IMMIGRATION 16 SERVICES,

17

Defendants.

18

19

20

21

22

23

24

25

26

27

28

CASE NO. 17-CV-05813-WHA

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 4 of 8

1

STIPULATION RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS

PENDING DEFENDANTS’ ACTIONS PURSUANT TO JANUARY 20, 2021

2

PRESIDENTIAL MEMORANDUM RE: DACA

3

Per Defendants’ filing on January 21, 2021, ECF No. 315, on January 20, 2021, President

4 Biden issued a memorandum entitled “Preserving and Fortifying Deferred Action for Childhood

5 Arrivals (DACA).” 86 Fed. Reg. 7053 (Jan. 25, 2021). In that memorandum, the President

6 instructed the Secretary of Homeland Security, in consultation with the Attorney General, to “take

7 all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.”

8 Id. at 7053. The Secretary of Homeland Security, in consultation with the Attorney General, is

9 currently working to implement the recent Presidential Memorandum, which may result in further

10 agency action that impacts the substantive and procedural aspects of this litigation.

11

In light of the above, to prevent the unnecessary expenditure of public resources, and to

12 promote judicial economy, the parties hereby stipulate to the following, and request that the

13 Court:

14

 Vacate all pending deadlines in this matter;

15

 Stay further proceedings in this matter pending further court order; and

16

 Order the parties to submit joint status reports every 60 days pending further court order,

17

with the first joint status report to be filed on May 24, 2021.

18 IT IS SO STIPULATED THIS 22 DAY OF MARCH, 2021

19

20

21

22

23

24

25

26

27

28
1
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 5 of 8

1 Dated: March 22, 2021

Respectfully submitted,

2 COVINGTON & BURLING LLP

MATTHEW RODRIQUEZ

Acting Attorney General of California

3 /s/ Jeffrey M. Davidson

4

JEFFREY M. DAVIDSON Attorneys for Plaintiffs The Regents of the

/s/ James F. Zahradka II JAMES F. ZAHRADKA II

5

University of California and Janet Napolitano, in Supervising Deputy Attorney General her official capacity as President of the University Attorneys for Plaintiff State of California

6

of California

AARON FREY

7 GIBSON, DUNN & CRUTCHER LLP

Attorney General of Maine KIMBERLY L. PATWARDHAN (pro hac

8 /s/ Ethan D. Dettmer ETHAN D. DETTMER
9

vice) Deputy Attorney General Attorneys for Plaintiff State of Maine

PUBLIC COUNSEL 10

BRIAN E. FROSH

11

/s/ Mark D. Rosenbaum MARK D. ROSENBAUM

Attorney General of Maryland STEVEN M. SULLIVAN (pro hac vice)

12 Attorneys for Plaintiffs Dulce Garcia, Miriam Solicitor General

Gonzalez Avila, Saul Jimenez Suarez, Norma

Attorneys for Plaintiff State of Maryland

13 Ramirez, Jirayut Latthivongskorn, Marco Antonio

Salinas Munoz, Dulce Berenice Vargas Baltazar, KEITH ELLISON

14 Ericka Lisseth Daniel Santellan, Grisel

Attorney General State of Minnesota

15 Guadalupe Chavez Diaz, and Felipe Alvarez Carrillo

JULIANNA F. PASSE (pro hac vice) Attorneys for Plaintiff State of Minnesota

16 COTCHETT, PITRE & McCARTHY, LLP
17

/s/ Justin T. Berger 18 JUSTIN T. BERGER
Attorneys for Plaintiff City of San Jose 19

20

21

22

23

24

25

26

27

28
2
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 6 of 8

1

ALTSHULER BERZON LLP

2

/s/ Stacey M. Leyton

STACEY M. LEYTON

3

Attorneys for Plaintiffs COUNTY OF

SANTA CLARA AND SERVICE

4

EMPLOYEES INTERNATIONAL

UNION LOCAL 521

5

JAMES R. WILLIAMS (SBN 271253)

6

County Counsel

GRETA S. HANSEN (SBN 251471)

7

LAURA S. TRICE (SBN 284837)

MARCELO QUIÑONES (SBN 279132)

8

HANNAH KIESCHNICK (SBN 319011)

OFFICE OF THE COUNTY COUNSEL

9

70 West Hedding Street, East Wing, Ninth

Floor

10

San Jose, California 95110

Telephone: (408) 299-5900

11

Facsimile: (408) 292-7240

Email: laura.trice@cco.sccgov.org,

12

marcelo.quinones@cco.sccgov.org,

hannah.kieschnick@cco.sccgov.org

13

/s/ Hannah Kieschnick

14

HANNAH KIESCHNICK

Attorneys for Plaintiff COUNTY OF

15

SANTA CLARA

16

17

BRIAN M. BOYNTON

Acting Assistant Attorney General

18

BRAD P. ROSENBERG

19

Assistant Branch Director

20 /s/ Stephen M. Pezzi

21

STEPHEN M. PEZZI (DC Bar #995500)

Trial Attorney

22

United States Department of Justice

Civil Division, Federal Programs Branch

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1100 L Street, N.W.

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Washington, DC 20005

Telephone: (202) 305-8576

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Facsimile: (202) 616-8460

E-mail: stephen.pezzi@usdoj.gov 26

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Attorneys for Defendants

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STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 7 of 8

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[PROPOSED] ORDER

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Pursuant to the parties’ stipulation, this Court hereby issues the following ORDER:

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All pending deadlines in this matter are hereby VACATED;

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All further proceedings in this matter are hereby STAYED pending further court

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The parties are hereby ORDERED to submit joint status reports every 60 days

7 pending further court order, with the first joint status report due on May 24, 2021.

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IT IS SO ORDERED.

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WILLIAM ALSUP UNITED STATES DISTRICT

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JUDGE

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STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 8 of 8

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ATTESTATION OF SIGNATURES

2 I, James F. Zahradka II, hereby attest, pursuant to Local Civil Rule 5-1(i)(3) of the Northern
3 District of California that concurrence in the filing of this document has been obtained from each
4 signatory hereto.
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6 Dated: March 22, 2021 7 8

/s/ James F. Zahradka II JAMES F. ZAHRADKA II Supervising Deputy Attorney General Attorney for State of California

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STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)