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Cite as: 583 U. S. ____ (2017) 1 

BREYER, J., dissenting 

 SUPREME COURT OF THE UNITED 

STATES 

No. 17A570 (17–801) 

IN RE UNITED STATES, ET AL. 

ON APPLICATION FOR STAY AND PETITION FOR WRIT OF 

MANDAMUS
 

[December 8, 2017]
 

The application for a stay presented to JUSTICE 

KENNEDY and by him referred to the Court is granted, and

the District Court’s September 22, 2017, October 17, 2017,

and November 20, 2017 orders, to the extent they require 

discovery and addition to the administrative record filed 

by the Government, are stayed pending disposition of the 

Government’s petition for a writ of mandamus or in the

alternative a writ of certiorari. 

Responses to the Government’s petition for a writ of 

mandamus or in the alternative a writ of certiorari must 

be filed by Wednesday, December 13, 2017 at 4:00 p.m. 

JUSTICE BREYER, with whom JUSTICE GINSBURG,

JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting

from grant of stay. 

On September 5, 2017, the Government announced its 

decision to terminate the Deferred Action for Childhood 

Arrivals (DACA) program, effective March 5, 2018. The 

Department of Homeland Security (DHS) had adopted

DACA in 2012. Since that time, DACA has provided that 

immigrants brought to the United States illegally as 

children who meet certain other requirements could obtain 

work authorization, a social security number, and permission to travel overseas and lawfully return to the United

States. Nearly 800,000 people have benefited from the 

program. 
 

2 IN RE UNITED STATES 

BREYER, J., dissenting 

After the Government announced its decision to terminate DACA, respondents filed suit in the U. S. District 

Court for the Northern District of California to challenge 

the Government’s termination of the program under the

Administrative Procedure Act (APA) and on other 

grounds. The merits of that challenge have not yet been

addressed by the District Court, and they are not before 

us. But the Government has filed a petition for a writ of

mandamus in this Court to challenge the District Court’s

order that it provide additional documents to complete the 

administrative record concerning the Government’s decision to terminate DACA. The U. S. Court of Appeals for

the Ninth Circuit previously denied the Government most 

of the relief the Government seeks here. See In re United 

States, ___ F. 3d ___ (2017). I would do the same. 

A writ of mandamus is “a ‘drastic and extraordinary’

remedy ‘reserved for really extraordinary causes.’” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 380 

(2004) (quoting Ex parte Fahey, 332 U. S. 258, 259–260 

(1947)). In my view, the Government’s arguments do not 

come close to carrying the heavy burden that the Government bears in seeking such extraordinary relief. With 

respect, I therefore dissent from the Court’s decision to

grant a stay pending further consideration of the Government’s petition for a writ of mandamus. 

I 

The Government’s primary argument is that “the district court plainly erred by . . . ordering the government to

‘complete’ the administrative record with materials beyond those presented by the agency to the court,” because 

a reviewing court’s sole task under the APA is to “determine whether the agency’s action may be upheld on the

basis of the reasons the agency provides and ‘the record 

the agency presents to the reviewing court.’” Pet. for 

Mandamus 19, 24 (quoting ___ F. 3d, at ___ (Watford, J., 
 

Cite as: 583 U. S. ____ (2017) 3 

BREYER, J., dissenting 

dissenting) (slip op., at 1)). The Government thus contends that review of its decision terminating DACA must

be based exclusively on the documents that the Government itself unilaterally selected for submission to the 

District Court. I am not aware of any precedent supporting the Government’s position. 

The APA is clear that a court reviewing agency action

must review “the whole record” to determine whether that 

action is lawful. 5 U. S. C. §706. The basic question here

is what constitutes “the whole record” that the court must 

review. We held in Citizens to Preserve Overton Park, Inc. 

v. Volpe, 401 U. S. 402, 420 (1971), that the “whole record” 

means “the full administrative record that was before the 

Secretary at the time he made his decision.” Ibid. Neither 

this Court nor the lower courts has ever read Overton 

Park to limit the “full administrative record” to those 

materials that the agency unilaterally decides should be

considered by the reviewing court.

Indeed, judicial review cannot function if the agency is

permitted to decide unilaterally what documents it submits to the reviewing court as the administrative record.

Effective review depends upon the administrative record

containing all relevant materials presented to the agency,

including not only materials supportive of the government’s decision but also materials contrary to the government’s decision. See Motor Vehicle Mfrs. Assn. of United 

States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 

U. S. 29, 43–44 (1983). Otherwise, the reviewing court 

cannot engage in the “thorough, probing, in-depth review” 

that the APA requires. Overton Park, 401 U. S., at 415– 

416. A court deprived of a full administrative record could 

not consider, for example, whether the decision was based 

on the consideration of irrelevant factors, id., at 411–412; 

whether it considered the relevant factors, id., at 416; 

whether the decision was “arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with the law,” 
 

4 IN RE UNITED STATES 

BREYER, J., dissenting 

§706(2)(A); or whether the decision was unlawful for some 

other reason. 

Perhaps for this reason, the lower courts seem to have

unanimously rejected the Government’s position that the 

agency may unilaterally determine the contents of the

administrative record that a court may review. In Thompson v. Department of Labor, 885 F. 2d 551 (CA9 1989), for 

example, the Ninth Circuit explained: 

“The whole administrative record . . . is not necessarily those documents that the agency has compiled and

submitted as ‘the’ administrative record. The ‘whole’ 

administrative record, therefore, consists of all documents and materials directly or indirectly considered 

by agency decision-makers and includes evidence contrary to the agency’s position.” Id., at 555 (citation and 

some internal quotation marks omitted). 

See also, e.g., Bar MK Ranches v. Yuetter, 994 F. 2d 735, 

739 (CA10 1993) (“An agency may not unilaterally determine what constitutes the Administrative Record”).

To be sure, we also said in Overton Park (referring to

the famous case of United States v. Morgan, 313 U. S. 409, 

422 (1941)), that “inquiry into the mental processes of 

administrative decisionmakers is usually to be avoided” 

absent a showing of bad faith or improper conduct. 401 

U. S., at 420. But we said that in the context of explaining 

the circumstances under which officials “who participated

in the decision” could be required “to give testimony explaining their action.” Ibid. (emphasis added); see also 

Morgan, supra, at 422 (discussing the testimony of the 

Secretary of Agriculture). 

Probing a decisionmaker’s subjective mental reasoning—what was at issue in Morgan and Overton Park—is 

distinct from the ordinary judicial task of evaluating

whether the decision itself was objectively valid, considering all of the materials before the decisionmaker at the 
 

Cite as: 583 U. S. ____ (2017) 5 

BREYER, J., dissenting 

time he made the decision. Overton Park, supra, at 420. 

And the testimony of the decisionmaker, at issue in Morgan and Overton Park, cannot be deemed properly part of

the administrative record in any event, because it did not 

exist until after the agency decision had been made. See 

Florida Power & Light Co. v. Lorion, 470 U. S. 729, 743 

(1985) (“‘[T]he focal point for judicial review should be the 

administrative record already in existence, not some new 

record made initially in the reviewing court’” (quoting 

Camp v. Pitts, 411 U. S. 138, 142 (1973) (per curiam)).

The documents that the District Court ordered the 

Government to provide are documents that were considered by the decisionmaker or those advising her and that 

were “already in existence” at the time of the relevant

agency decision. At least facially, these documents do not

seem to involve “inquiry into the mental processes” of the 

decisionmaker at all. They thus do not implicate the bad 

faith or improper conduct standard from Overton Park. 

In taking the position that the agency unilaterally

decides which documents make up the administrative

record, the Government relies heavily on the D. C. Circuit’s decision in San Luis Obispo Mothers for Peace v. 

NRC, 789 F. 2d 26, 44–45 (CADC 1986) (en banc). San 

Luis Obispo expanded Morgan and Overton Park’s bad 

faith or improper conduct standard to apply to one narrow

category of pre-existing, documentary materials: records of 

the closed deliberations of the members of a multimember 

agency. See San Luis Obispo, 789 F. 2d, at 44–45. Such 

records, the D. C. Circuit has explained, are functionally 

equivalent to deposing an agency head to explain her 

decision—they represent the “collective mental processes 

of the agency.” Id., at 44. This Court has never passed on

this extension of Morgan and Overton Park. But in any 

event, it does not help the Government here because DHS,

which made the decision to terminate DACA, is not a 

multimember agency, and so the records the District 
 

6 IN RE UNITED STATES 

BREYER, J., dissenting 

Court ordered produced are not protected by San Luis 

Obispo either. 

The Government also relies on our decision in Cheney, 

542 U. S. 367. But Cheney concerned only requests for

documents from the White House itself. Such documents 

seem to form at most only a small portion of the documents that the District Court ordered the Government to 

add to the administrative record, so Cheney cannot justify

the broad relief from any obligation to complete the administrative record that the Government seeks. And, 

moreover, the Government has failed to argue with any 

specificity about the burden that the requirement to include White House documents in particular in the administrative record will impose, so it is impossible for this

Court to perform the sort of balancing analysis that we

said was necessary in Cheney. Id., at 385. 

Finally, the Government relies on dictum from Florida 

Power & Light, 470 U. S., at 742–744, that judicial review 

is to be conducted “based on the record the agency presents to the reviewing court.” But the Government takes 

that language out of context. The quoted language comes

as part of the Court’s explanation for why there is often no 

need for independent district court factfinding as part of 

APA review: namely, because that review will be based on 

“‘the administrative record already in existence, not some 

new record made initially in the reviewing court.’” Id., at 

743 (quoting Camp, supra, at 142). Thus, what we meant 

by the phrase the Government quotes was that review is

to be “based on the record the agency proceedings present

to the reviewing court,” 470 U. S., at 744—just what we

said in Overton Park. No more was at issue in Florida 

Power & Light. That case did not hold that the Government gets to define unilaterally the scope of the documents it submits to the reviewing court as the administrative record. 

In sum, the cases, both in this Court and in lower 
Cite as: 583 U. S. ____ (2017) 7 

BREYER, J., dissenting 

courts, hold or are consistent with the proposition that a 

reviewing court has the power to order the Government to 

supplement documents already provided with other documents where necessary to give the court “the full administrative record.” Overton Park, 401 U. S., at 420. 

II 

The Government also raises various other concerns, but 

they similarly fail to show the Government’s entitlement

to extraordinary mandamus relief.

The Government asserts that some of the documents the 

District Court ordered be included in the administrative 

record are protected by various privileges. But the Government has not developed a specific claim of privilege as 

to any particular document to us here or to any court 

below. See Application for Stay 24; see also ___ F. 3d, at 

___, n. 8 (noting that the Government “provided little in

the way of argument regarding the specific documents

ordered disclosed by the district court”). The closest the 

Government comes is with repeated references to a single 

document out of the 35 that the District Court found not 

privileged and ordered it to produce. The Government 

describes it as a memorandum from the White House 

Counsel’s office to the President. But even as to this one 

document, the Government offers no legal or factual support for its claim of privilege aside from its bare description. The District Court reviewed that document, and the 

other 34, and concluded that they were not privileged. We 

have not seen these documents, and we consequently have

no basis to question the District Court’s conclusion. 

As for any additional documents that the Government 

may believe are privileged, the District Court’s order

leaves the Government free to withhold privileged documents from the administrative record. The Government 

simply has to explain the basis for its privilege claim and

provide the documents in camera for the District Court to 
 

 

8 IN RE UNITED STATES 

BREYER, J., dissenting 

review. Given that the District Court concluded that of 

the first 84 privileged documents the Government attempted to withhold from the administrative record, 35 

were not in fact privileged, the District Court’s requirement that the Government justify its future privilege

claims and file the documents for review in camera seems 

to be a reasonable exercise of the District Court’s considerable discretion in this area. 

The Government also complains about the burden imposed by the District Court’s order, but that argument is

also beside the point. The Government complains that it

must review 21,000 documents as potentially part of the

administrative record. But the underlying agency action 

here is important, and that is by no means an unusually 

large number of documents; administrative records often 

contain hundreds of thousands of documents. See, e.g., 

Georgia ex. rel. Olens v. McCarthy, 833 F. 3d 1317, 1320 

(CA11 2016) (noting that the administrative record “is

more than a million pages long”). Moreover, the Government’s argument about burden is based almost entirely on

how quickly it must comply with the District Court’s

order. See Application for Stay 28–31. But the current 

December 22 deadline was set by the District Court on

November 20, 2017—three days after the Court of Appeals’ 

decision. The Government is free to request an additional 

extension of time from the District Court or to seek mandamus relief from the deadline in the Court of Appeals. 

The Government has done neither. And so the Government’s challenge to that deadline, and thus to what it says

is the unreasonable burden to review thousands of documents in such a short period of time, seems to be barred 

by this Court’s Rule 23.3, because it fails to explain “with 

particularity why the relief sought is not available in any 

other court.” 

The same is true of the Government’s objections to the 

District Court’s order that discovery of documents and 
Cite as: 583 U. S. ____ (2017) 9 

BREYER, J., dissenting 

information outside the administrative record will begin 

on December 22. The Government has not challenged any 

particular discovery order as overbroad in the District

Court, much less in the Court of Appeals. The Government’s objections are thus premature. Concerning depositions, for example, the most the Government can say is 

that “the district court will likely allow” depositions of 

“numerous witnesses.” Reply in Support of Application for

Stay 13–14 (emphasis added). Perhaps the District Court 

will allow those depositions and perhaps it will not. But I 

do not see how we can restrain by mandamus an order 

that the Government merely fears that the District Court

might enter in the future. 

III 

The Government also argues that a stay of the District 

Court’s orders is appropriate because judicial review of the 

agency decision at issue is precluded by the APA as “committed to agency discretion by law,” 5 U. S. C. §701(a)(2), 

and by the Immigration and Nationality Act, 8 U. S. C.

§1252(g). But that argument goes to the merits of the 

respondents’ underlying lawsuit, which have not yet been

addressed by the District Court and are not now before 

this Court, rather than to the proper contents of the administrative record assuming that the agency decision is 

subject to review. The District Court on September 21 

offered the Government the opportunity to file an early

motion to dismiss and thus obtain a decision on its threshold objections before the preparation of the administrative

record. The Government rejected that offer, preferring

instead to defer the issue to summary judgment motions. 

I see no reason to grant a writ of mandamus to relieve the 

Government of the consequences of that decision. 

IV 

Except in the most extraordinary circumstances, this 
 

10 IN RE UNITED STATES 

BREYER, J., dissenting 

Court’s long-settled practice has been to leave these sorts

of burden and discovery-related procedural disputes to the 

district courts, with occasional court of appeals intervention. We follow this practice for good reason. To understand whether a particular discovery order is overly burdensome typically requires a deep understanding of the

overall factual context and procedural history of an individual case. This Court is thus poorly positioned to second-guess district courts’ determinations in this area.

The Court today abandons its practice of nonintervention in this kind of discovery-related dispute. In addition 

to disrupting the progress of this litigation, I fear that the

Court’s decision to intervene here means we will be asked 

to address run-of-the-mill discovery disputes in many 

other matters, certainly when the Government is involved

and potentially when it is not involved. In my view, the 

Court should maintain its usual policy of abstaining from

disputes like this one.

For these reasons, with respect, I dissent from the

Court’s grant of the Government’s application for a stay

pending further consideration of its petition for a writ of 

mandamus.