Opposition Brief — Department of Homeland Security, et al., Petitioners v. Regents of the University of California, et al.
Supreme Court briefFeb 2, 2018
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No. 17-1003
IN THE
Supreme Court of the United States
_______________
UNITED STATES DEPARTMENT OF HOMELAND
SECURITY, ET AL.,
Petitioners,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
Respondents.
_______________
On Petition For A Writ Of Certiorari
Before Judgment To The United States
Court of Appeals For The Ninth Circuit
_______________
Brief in Opposition for Respondents Dulce Garcia,
Miriam Gonzalez Avila, Saul Jimenez Suarez,
Viridiana Chabolla Mendoza, Norma Ramirez, and
Jirayut Latthivongskorn
_______________
NICOLE A. SAHARSKY
MATTHEW S. ROZEN
HALEY S. MORRISSON
GIBSON, DUNN & CRUTCHER LLP
1050 CONNECTICUT AVENUE, N.W.
WASHINGTON, DC 20036
(202) 955-8500
MARK D. ROSENBAUM
JUDY LONDON
PUBLIC COUNSEL
610 SOUTH ARDMORE AVENUE
LOS ANGELES, CA 90005
(213) 385-2977
THEODORE J. BOUTROUS, JR.
COUNSEL OF RECORD
ETHAN D. DETTMER
KIRSTEN GALLER
JONATHAN N. SOLEIMANI
KELSEY J. HELLAND
GIBSON, DUNN & CRUTCHER LLP
333 SOUTH GRAND AVENUE
LOS ANGELES, CA 90071
(213) 229-7000
TBOUTROUS@GIBSONDUNN.COM
Counsel for Respondents Dulce Garcia, Miriam Gonzalez Avila,
Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez,
and Jirayut Latthivongskorn
(Additional Counsel Listed on Inside Cover)
LUIS CORTES ROMERO
BARRERA LEGAL GROUP, PLLC
19309 68TH AVENUE SOUTH,
SUITE R102
KENT, WA 98032
(253) 872-4730
ERWIN CHEMERINSKY
UNIVERSITY OF CALIFORNIA,
BERKELEY SCHOOL OF LAW*
215 BOALT HALL
BERKELEY, CA 94720
(510) 642-6483
LAURENCE H. TRIBE
HARVARD LAW SCHOOL*
1575 MASSACHUSETTS AVENUE
CAMBRIDGE, MA 02138
(617) 495-1767
LEAH M. LITMAN
UNIVERSITY OF CALIFORNIA,
IRVINE SCHOOL OF LAW*
401 E. PELTASON DRIVE
IRVINE, CA 92697
(949) 824-7722
Additional Counsel for Respondents Dulce Garcia, Miriam Gonzalez
Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma
Ramirez, and Jirayut Latthivongskorn
*Affiliation for identification purposes only
QUESTIONS PRESENTED
Since 2012, the Deferred Action for Childhood Arrivals program (DACA) has enabled nearly 800,000
undocumented individuals who were brought to the
United States as children to live and work here without fear of deportation. In September 2017, the Acting
Secretary of Homeland Security abruptly decided to
terminate the program.
Respondents brought suit to challenge that decision. The district court granted respondents’ motion
for a preliminary injunction and also denied the government’s motion to dismiss for lack of jurisdiction.
Those rulings are now before the court of appeals, and
that court has expedited briefing. Apparently unsatisfied with expedited appellate review, and without
seeking a stay of the district court’s orders, the government has filed a petition for a writ of certiorari before judgment in this Court—a procedure reserved for
only the most extraordinary cases.
The questions presented are:
1. Whether either the Administrative Procedure
Act (APA), 5 U.S.C. § 701(a)(2), or a particular provision of the Immigration and Nationality Act (INA),
8 U.S.C. § 1252(g), precludes judicial review of the
Acting Secretary’s decision to terminate the DACA
program.
2. Whether the district court abused its discretion in entering a preliminary injunction, based on its
balancing of the equities and its conclusion that respondents are likely to succeed on their claim that the
decision to end DACA was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance
with law,” in violation of the APA, 5 U.S.C.
§ 706(2)(A).
ii
TABLE OF CONTENTS
Page
OPINIONS BELOW .................................................... 2
JURISDICTION .......................................................... 3
STATEMENT .............................................................. 3
ARGUMENT ............................................................. 10
I. The Government’s Claims Of Conflict,
Urgency, And Importance Do Not
Justify The Extraordinary Step Of
Certiorari Before Judgment ......................... 12
A. The
Decision
Below
Is
Preliminary, And There Is No
Circuit Split (And In Fact No
Circuit
Decision)
On
The
Questions Presented ............................. 12
B. There Is No Urgent Need For This
Court’s Review ....................................... 16
II. The Government’s Merits Arguments
Do Not Justify Certiorari Before
Judgment ...................................................... 24
A. The Government’s Reviewability
Arguments Are Insubstantial ............... 24
B. The Preliminary Injunction Ruling
Does Not Warrant Immediate
Review.................................................... 27
CONCLUSION .......................................................... 32
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Adarand Constructors, Inc. v. Mineta,
534 U.S. 103 (2001) .............................................. 14
Ashcroft v. ACLU,
542 U.S. 656 (2004) ........................................ 12, 27
Beame v. Friends of the Earth,
434 U.S. 1310 (1977) ............................................ 19
Braxton v. United States,
500 U.S. 344 (1991) .............................................. 21
Brown v. Chote,
411 U.S. 452 (1973) .............................................. 13
Califano v. Sanders,
430 U.S. 99 (1977) ................................................ 25
Citizens to Pres. Overton Park, Inc. v.
Volpe,
401 U.S. 402 (1971) .............................................. 25
Coleman v. Paccar Inc.,
424 U.S. 1301 (1976) ............................................ 12
Dames & Moore v. Regan,
453 U.S. 654 (1981) .................................. 11, 22, 23
Elonis v. United States,
135 S. Ct. 2001 (2015) .......................................... 14
iv
Encino Motorcars, LLC v. Navarro,
136 S. Ct. 2117 (2016) .............................. 26, 28, 30
Gonzalez v. O Centro Espirita
Beneficente Uniao
do Vegetal, 546 U.S. 418 (2006) ........................... 18
Heckler v. Chaney,
470 U.S. 821 (1985) ........................................ 25, 26
INS v. St. Cyr,
533 U.S. 289 (2001) .............................................. 25
Mach Mining, LLC v. EEOC,
135 S. Ct. 1645 (2015) .......................................... 25
Martin v. Blessing,
134 S. Ct. 402 (2013) ............................................ 24
Mistretta v. United States,
488 U.S. 361 (1989) ........................................ 14, 23
Nat’l Ass’n of Mfrs. v. Dep’t of Defense,
No. 16-299, slip op. (Jan. 22, 2018) ..................... 18
Nat’l Treas. Emps. Union v. Horner,
854 F.2d 490 (D.C. Cir. 1988) .............................. 26
Organized Vill. of Kake v. U.S. Dep’t of
Agric.,
795 F.3d 956 (9th Cir. 2015) ................................ 30
Reno v. Am.-Arab Anti-Discrimination
Comm.,
525 U.S. 471 (1999) .................................... 3, 26, 27
v
Ruckelshaus v. Monsanto Co.,
463 U.S. 1315 (1983) ............................................ 19
SEC v. Chenery Corp.,
332 U.S. 194 (1947) .............................................. 30
Spears v. United States,
555 U.S. 261 (2009) .............................................. 14
Texas v. United States,
809 F.3d 134 (5th Cir. 2015), aff ’d,
136 S. Ct. 2271 (2016) .................... 5, 15, 16, 27, 29
In re United States,
138 S. Ct. 443 (2017) .............................................. 7
In re United States,
875 F.3d 1200 (9th Cir. 2017) .............................. 14
United States v. Clinton,
524 U.S. 912 (1998) .............................................. 17
United States v. Nixon,
418 U.S. 683 (1974) ........................................ 11, 23
Va. Military Inst. v. United States,
508 U.S. 946 (1993) .............................................. 13
Volpe v. D.C. Fed’n of Civic Ass’ns,
405 U.S. 1030 (1972) ............................................ 21
Wong v. United States,
373 F.3d 952 (9th Cir. 2004) ................................ 27
Youngstown Sheet & Tube Co. v.
Sawyer,
343 U.S. 579 (1952) .................................. 11, 23, 24
vi
Statutes
5 U.S.C. § 701(a)(2) ............................................... 7, 24
5 U.S.C. § 706(2)(A) ........................................... 6, 7, 28
6 U.S.C. § 202(5) .......................................................... 3
8 U.S.C. § 1103(a)(1) ................................................. 16
8 U.S.C. § 1154(a)(1)(D)(i)(II).................................... 16
8 U.S.C. § 1154(a)(1)(D)(i)(IV) .................................. 16
8 U.S.C. § 1158(b)(1)(A) ............................................ 16
8 U.S.C. § 1182(d)(5)(A) ............................................ 16
8 U.S.C. § 1227(d)(2) ................................................... 3
8 U.S.C. § 1229(b) ...................................................... 16
8 U.S.C. § 1252 .......................................................... 16
8 U.S.C. § 1252(g) .................................................. 7, 26
28 U.S.C. § 1292(b) .................................................... 10
28 U.S.C. § 2101(e) .................................................... 12
Rules
Sup. Ct. R. 10............................................................. 11
Sup. Ct. R. 11....................................... 2, 11, 12, 16, 22
vii
Other Authorities
CNN.com, READ: President Trump’s
Full Exchange With Reporters,
https://tinyurl.com/ydcafdtr (Jan. 24,
2018) ..................................................................... 19
Donald J. Trump (@realDonaldTrump),
Twitter (Jan. 22, 2018, 8:30 PM),
https://twitter.com/realdonaldtrump/
status/ 955658992793149440 .............................. 21
Interview by John Dickerson with
Kirstjen Nielsen, Sec’y, Dep’t of
Homeland Sec., “CBS This Morning”
(Jan. 16, 2018),
https://tinyurl.com/y8ekmzar .............................. 19
James Lindgren & William P. Marshall,
The Supreme Court’s Extraordinary
Power to Grant Certiorari Before
Judgment in the Court of Appeals,
1986 Sup. Ct. Rev. 259, 289–97
(1986) .................................................................... 22
Oversight of the United States
Department of Homeland Security:
Hearing before the S. Comm. on the
Judiciary, 115th Cong. (2018) ............................. 19
Trump Pressures Democrats to Bargain
on Immigration, N.Y. Times, Feb. 1,
2018, https://tinyurl.com/ydb2hcn9 ..................... 21
1
BRIEF IN OPPOSITION
This case is about whether 700,000 young adults
who came to the United States as undocumented immigrant children and have lived their entire lives here
will be subject to removal because the government decided to rescind the Deferred Action for Childhood Arrivals (DACA) program. Since 2012, DACA has allowed these individuals, known as “Dreamers,” to obtain an education, work, and contribute to our Nation.
The program has been an unqualified success, and
DACA recipients have relied on the federal government’s repeated promises of protection from removal.
In September 2017, the federal government dramatically reversed course and announced that it
would terminate DACA as of March 5, 2018. The fate
of the Dreamers has captured the attention of the administration, Congress, and millions of Americans
who worry about the devastating impact that terminating DACA will have on families, schools, communities, and our economy.
Respondents brought this lawsuit to challenge the
government’s decision to end DACA. The district
court entered a preliminary injunction to freeze the
DACA program in place, and protect the livelihood
and well-being of the nearly 700,000 current DACA
recipients, while the courts determine whether the rescission was lawful. The district court also rejected
the government’s arguments that no court may review
the decision to end DACA. The court of appeals is now
reviewing those rulings on an expedited basis.
The government has not sought a stay of the district court’s rulings. Instead, it leapfrogged the court
of appeals to seek a writ of certiorari before judgment
in this Court—an extraordinary procedure reserved
2
only for cases of such “imperative public importance”
that the Court’s “immediate” review is necessary.
Sup. Ct. R. 11.
This Court should reject the government’s attempt to upset the normal appellate process. The decision below is preliminary and interlocutory; no appellate court has ruled on the questions presented;
and the government conspicuously declined to argue
below that DACA is unlawful. There is no need for
immediate review. The appeal has been expedited,
and the government cannot credibly claim harm when
it has not even bothered to seek a stay. DACA recipients are contributing members of society who have
been carefully vetted, and their continued presence in
this country while the courts determine their rights
harms no one. This Court should not rush in, especially because Congress currently is considering
whether to provide a permanent solution for the
Dreamers, and the President has stated that he supports allowing the Dreamers to remain in the United
States. Nothing about the merits warrants immediate review: The district court had ample justification
to enter a preliminary injunction, and the government
is flatly wrong to say that no court can review its decision to terminate a long-standing program and disrupt the lives of 700,000 people. The petition should
be denied.
OPINIONS BELOW
The order of the district court granting respondents’ motion for a preliminary injunction and denying
the government’s motion to dismiss for lack of jurisdiction (Pet. App. 1a-70a) is not yet published in the
Federal Supplement but is available at 2018 WL
339144. The district court’s order granting in part
3
and denying in part the government’s motion to dismiss for failure to state a claim (Pet. App. 76a-94a) is
not yet published in the Federal Supplement but is
available at 2018 WL 401177.
JURISDICTION
The district court entered its order granting a preliminary injunction and denying the government’s
motion to dismiss on jurisdictional grounds on January 9, 2018, and its order granting in part and denying
in part the government’s motion to dismiss for failure
to state a claim on January 12, 2018. The government
filed a notice of appeal of the preliminary injunction
order on January 16, 2018, Pet. App. 71a-75a, and
that appeal is pending in the court of appeals. The
government filed a petition for interlocutory review of
the motion to dismiss orders on January 16, 2018; the
court of appeals granted that petition on January 25,
2018; and that appeal also is pending in the court of
appeals. The petition for a writ of certiorari before
judgment was filed on January 18, 2018. The jurisdiction of the court of appeals rests on 28 U.S.C.
§ 1292(a)(1) and (b). The jurisdiction of this Court is
invoked under 28 U.S.C. §§ 1254(1) and 2101(e).
STATEMENT
1. This case concerns the Deferred Action for
Childhood Arrivals (DACA) program. Deferred action
is “a regular practice” in which the government elects
not to seek removal of individuals “for humanitarian
reasons or simply for [its] own convenience.” Reno v.
Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,
483-84, n.8 (1999) (AADC). Congress has recognized
this established practice in the Immigration and Nationality Act (INA). See 8 U.S.C. § 1227(d)(2); see also
6 U.S.C. § 202(5).
4
Over the past several decades, both Republican
and Democratic presidential administrations have
used deferred action to permit certain categories of individuals to remain in the United States. Pet. App.
5a-8a. As a result of that consistent practice, deferred
action programs have become “a well-accepted feature
of the [E]xecutive’s enforcement of our immigration
laws.” Id. at 8a.
In 2012, Secretary of Homeland Security Janet
Napolitano established DACA. Pet. App. 9a. The program permits young people who were brought to the
United States as children to lawfully live and work in
this country. Id. Qualifying individuals may obtain
work authorization and a social security number, and
travel overseas and lawfully return to the United
States. Id. at 12a.
DACA has allowed nearly 800,000 people to come
out of the shadows and build productive and fulfilling
lives in the United States. Compl. ¶ 128. 1 The
Dreamers have relied on the promise of DACA to advance their education, serve in the U.S. military, start
businesses, have families, and make many other lifechanging decisions. Id. ¶¶ 37, 41, 48-98. Like so
many other Dreamers, the six individual respondents
here—Dulce Garcia, Miriam Gonzalez Avila, Saul
Jimenez Suarez, Viridiana Chabolla Mendoza, Norma
Ramirez, and Jirayut Latthivongskorn—have
achieved remarkable success through hard work,
fierce determination, and incredible resilience. Id.
¶¶ 4-9. Because of DACA, they have been able to pursue careers as lawyers, medical professionals, and
teachers, in furtherance of their commitment to serve
“Compl.” refers to the complaint filed in Garcia, et al. v.
United States, et al., Case No. 3:17-cv-05380 (N.D. Cal.).
1
5
their communities. Id. ¶¶ 53-98. Without DACA,
they will face possible deportation and risk losing
their families, community connections, and livelihoods. Id. ¶¶ 48-49, 56, 63, 76, 83, 91, 128.
2. The current administration originally supported DACA and the Dreamers. In March 2017, Secretary of Homeland Security John Kelly stated that
DACA embodies a “commitment … by the government
towards … Dreamer[s].” Compl. ¶ 46. In April 2017,
the President himself emphasized that the “dreamers
should rest easy” and agreed that the “policy of [his]
administration [is] to allow the dreamers to stay.” Id.
¶ 47.
But on September 4, 2017, the administration abruptly reversed course. The Attorney General sent a
one-page letter to Acting Secretary of Homeland Security Elaine Duke, summarily concluding that
“DACA was effectuated by the previous administration through executive action, without proper statutory authority” and “was an unconstitutional exercise
of authority by the Executive Branch.” Pet. App.
114a. The following day, he announced the government’s decision to end DACA. As a reason, he cited
the Fifth Circuit’s decision (which was affirmed by an
equally divided Court) approving an injunction
against a different deferred action program—Deferred Action for Parents of Americans and Lawful
Permanent Residents (DAPA). Dkt. 64-1 at 251 (citing remarks referring to Texas v. United States, 809
F.3d 134 (5th Cir. 2015), aff ’d, 136 S. Ct. 2271, 2272
(2016)).
Acting Secretary Duke issued a memorandum formally rescinding DACA. Pet. App. 17a. The memorandum instructed the agency to stop approving new
DACA applications and to allow individuals’ DACA
6
status to expire beginning March 5, 2018. Id. at 115a16a. Her reasoning was quite brief: Citing the “Supreme Court’s and the Fifth Circuit’s rulings [in
Texas] and the September 4, 2017 letter from the Attorney General,” she concluded that the “program
should be terminated.” Id. at 115a. The memorandum did not analyze any purported litigation risk and
did not weigh defending DACA and its widespread
benefits against the many harms that would result if
DACA were rescinded. Acting Secretary Duke then
released a statement where she said—directly contrary to the President’s and prior Secretaries’ statements—that “DACA was fundamentally a lie.” Dkt.
121-2 at 1869. 2
3. Respondents filed five related lawsuits
against the federal government and various federal officials to challenge the decision to rescind DACA. Respondents contend, inter alia, that DACA’s rescission
(1) is unlawful under the APA because it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” 5 U.S.C. § 706(2)(A); (2) violates
the APA’s notice-and-comment rulemaking requirement; (3) denies DACA recipients equal protection of
the laws; and (4) deprives DACA recipients of constitutionally protected property and liberty interests in
violation of due process. Pet. App. 19a-22a.
Because DACA is set to expire in March 2018, the
district court immediately took steps to ensure that
the litigation would proceed quickly and efficiently.
After an initial dispute about the administrative record (which ultimately was addressed by this Court, see
“Dkt.” refers to the electronic docket for Regents of the University of California, et al. v. DHS, et al., Case No. 3:17-cv-05211
(N.D. Cal.).
2
7
In re United States, 138 S. Ct. 443 (2017) (per curiam)), the district court considered the government’s
motion to dismiss, Dkt. 114, and respondents’ request
for a preliminary injunction, Dkt. 111.
The district court denied the government’s motion
to dismiss for lack of jurisdiction and granted preliminary injunctive relief. Pet. App. 1a-70a. The court
rejected the government’s arguments that no court
can review the decision to end DACA. Id. at 26a-33a.
The court held that the Secretary’s decision is not
“committed to agency discretion by law” under the
APA, 5 U.S.C. § 701(a)(2), because it is a “major policy
decisio[n]” based on the agency’s “interpretation of the
INA”—a “quintessential[ly]” reviewable legal question for which “there is law to apply.” Pet. App. 28a30a. The court also held that 8 U.S.C. § 1252(g) does
not bar judicial review, Pet. App. 30a-33a, because
that provision applies only to the “three discrete decisions or actions named” in the statute—decisions to
“commence proceedings, adjudicate cases, or execute
removal orders against any alien,” 8 U.S.C.
§ 1252(g)—and the decision to end DACA is none of
those. Rather, it is an “across-the-board cancellation
of a nationwide program” done “prior to the commencement of any removal proceedings.” Pet. App.
31a-32a.
The district court granted respondents preliminary injunctive relief based on its initial assessment
of the merits and its balancing of the equities. Pet.
App. 41a-69a. The court found respondents likely to
succeed on their claim that DACA’s rescission is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A),
because neither of the government’s claimed reasons
for ending DACA withstood scrutiny. First, the court
8
rejected the view that DACA is illegal, explaining that
it is “based on the flawed legal premise that the
agency lacked authority to implement DACA.” Pet.
App. 42a. Citing guidance from the Office of Legal
Counsel—guidance on which the government itself
has relied—the court explained that DACA is a permissible exercise of the Executive’s immigration enforcement authority because each feature of the program is “anchored in authority granted or recognized
by Congress or the Supreme Court.” Id. at 42a-43a.
The court noted that “the government [had] ma[de] no
effort” in this litigation “to challenge any of the … reasons why DACA was and remains within the authority of the agency,” id. at 48a; all it did was cite the
Fifth Circuit’s decision in Texas, which the district
court distinguished on multiple grounds, id. at 51a52a.
Second, the court rejected the government’s post
hoc rationalization that litigation risk was a sufficient
reason to end DACA. Pet. App. 55a-62a. The court
explained that this was not the reason relied upon by
the decision-makers: The Attorney General’s stated
reason for ending DACA was his belief that it is illegal, and the Acting Secretary’s memorandum relied
on that determination, without “consider[ing]
whether defending the program in court would (or
would not) be worth the litigation risk.” Id. at 55a. In
fact, the court concluded, the agency never assessed
litigation risk or weighed it against “DACA’s programmatic objectives” and “the reliance interests of DACA
recipients.” Id. at 58a. The agency’s about-face without a reasoned explanation, the court held, was a paradigmatic example of arbitrary and capricious agency
action. Id. at 60a-61a.
9
Finally, the district court concluded that the equities strongly favor a preliminary injunction. Pet. App.
62a-66a. The government “d[id] not dispute” that respondents—especially the individual DACA recipients—will face irreparable injury absent temporary
injunctive relief. Id. at 62a-63a. And the court concluded that the “public interest will be served by
DACA’s continuation,” because the rescission will “result in hundreds of thousands of individuals losing
their work authorizations and deferred action status,”
which will tear apart families and remove productive
workers from the national economy. Id. at 65a.
The preliminary injunction directs the government
“to maintain the DACA program” as it was pre-rescission, except that the government may deny new applications and foreign travel requests. Pet. App. 66a67a. The government may exercise its discretion “on
an individualized basis for each renewal application”
and may “remove any individual, including any DACA
enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its
judgment, to be removed.” Id. at 67a.
The district court then entered another order,
granting the government’s motion to dismiss respondents’ notice-and-comment and substantive due process claims and denying the motion with respect to respondents’ substantive APA and equal protection
claims. Pet. App. 76a-94a. (The notice-and-comment,
due process, and equal protection claims are not at issue in this petition.)
4. The government appealed the preliminary injunction order but did not seek expedited briefing.
Pet. App. 71a-75a. With permission from the district
court and court of appeals, the government and re-
10
spondents each filed interlocutory appeals of the motion to dismiss order. See C.A. No. 18-15128, Dkt. 11;
C.A. No. 18-15133, Dkt. 6; C.A. No. 18-15134, Dkt. 1;
see also 28 U.S.C. § 1292(b). The court of appeals has
consolidated the appeals and sua sponte ordered expedited briefing, and all briefing will be completed by
May 1, 2018. C.A. No. 18-15068, Dkt. 2 at 3.
5. The government filed a petition for a writ of
certiorari before judgment in this Court. That petition challenges only the district court’s preliminary
injunction and reviewability holdings. The government has not sought a stay of the district court’s orders from any court.
ARGUMENT
The government asks this Court to grant a writ of
certiorari before judgment to review two interlocutory
decisions of the district court. There is no disagreement in the circuits on the questions presented. In
fact, no court of appeals has ever addressed those
questions. And the district courts that have done so
have unanimously sided with respondents.
There is no immediate need for this Court’s intervention. The district court and court of appeals have
proceeded expeditiously to ensure that the issues in
the case can reach this Court quickly and with the
benefit of full appellate review. There is great benefit
in following the normal appellate process, and no
harm in doing so. The district court’s orders simply
freeze the DACA program in place and allow the government to continue exercising its usual authority to
grant or deny individuals deferred action under DACA
and remove them from the United States on an individualized basis.
11
The government cannot credibly claim harm when
the current administration has willingly permitted
the Dreamers to stay for over a year; has stated that
it will continue to do so, either by treating recipients
as a low enforcement priority or by extending DACA;
and has forgone opportunities to expedite this dispute
or avoid any purported harm through a stay. And the
fact that Congress is now considering legislation that
would provide permanent legal status for DACA recipients makes it especially wise for this Court to stay
its hand.
This case is nothing like the rare and unique circumstances that have previously justified certiorari
before judgment. Skipping the courts of appeals may
be appropriate where necessary to protect the national defense during wartime, Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 583-84 (1952); prevent a treaty breach, Dames & Moore v. Regan, 453
U.S. 654, 660 (1981); or speed grand jury proceedings
naming the sitting President as an unindicted co-conspirator in defrauding the United States, United
States v. Nixon, 418 U.S. 683, 687-88 (1974). But
there is no comparable urgency here. And nothing
about the merits justifies granting certiorari at this
very early stage.
This case does not meet the Court’s standard for
certiorari, see Sup. Ct. R. 10, let alone the exceptionally demanding standard for certiorari before judgment, Sup. Ct. R. 11. The petition should be denied.
12
I. The Government’s Claims Of Conflict, Urgency, And Importance Do Not Justify The
Extraordinary Step Of Certiorari Before
Judgment
This Court exercises its authority to review a case
before judgment in the court of appeals in “extremely
rare” instances. Coleman v. Paccar Inc., 424 U.S.
1301, 1304 n.* (1976) (Rehnquist, J.) (in chambers);
see 28 U.S.C. § 2101(e). Under the Court’s rules, certiorari before judgment is warranted only where the
petitioner establishes that “the case is of such imperative public importance as to justify deviation from
normal appellate practice and to require immediate
determination in this Court.” Sup. Ct. R. 11. This
case does not meet that standard.
A.
The Decision Below Is Preliminary, And
There Is No Circuit Split (And In Fact No
Circuit Decision) On The Questions Presented
1. The decision under review could hardly be
more preliminary. The court entered a preliminary
injunction—a provisional determination to freeze the
DACA program in place while the courts address
whether its rescission was lawful. This Court reviews
that determination for “abuse of discretion” and “uphold[s] the injunction” if “the underlying … question
is close.” Ashcroft v. ACLU, 542 U.S. 656, 664-65
(2004). The district court’s rulings about reviewability and about likelihood of success on the APA claim
both are interlocutory. The Court normally does not
review interlocutory orders, and for good reason; further development of the issues often crystallizes the
arguments in preparation for this Court’s review. See
13
Va. Military Inst. v. United States, 508 U.S. 946 (1993)
(Scalia, J., concurring in denial of certiorari).
The preliminary injunction is based on only one of
respondents’ claims for relief—the substantive APA
claim—and the district court did not decide the ultimate merits of that claim, but only found that respondents “have shown a likelihood of success.” Pet.
App. 41a. Because the district court has not yet expressed its definitive view of the merits of the substantive APA claim after full development of the record and briefing, and because there are other claims
not before this Court that could support the injunction, the petition does not provide the opportunity to
decide the “ultimate merits” of respondents’ claims.
Brown v. Chote, 411 U.S. 452, 457 (1973). Granting
certiorari at this very early stage therefore would embroil this Court in piecemeal review without the ability to conclusively resolve the substantive claims in
this case.
2. Review of the district court’s preliminary orders is especially unwarranted because the issues
have not been considered by any federal appellate
court. Not only is there no disagreement in the circuits on either of the questions presented, but no court
of appeals has even considered those questions. The
most the government can say is that challenges to
DACA’s rescission are pending in federal district
courts in several circuits. Pet. 15. But none of those
challenges (other than in this case) has even reached
the court of appeals on the merits, let alone been de3
cided on appeal.
The Second Circuit considered a mandamus petition challenging an order about the administrative record, much like the
one the Ninth Circuit considered in this case. See In re Kirstjen
3
14
Further, there is no “disarray among the Federal
District Courts” that might justify review in an extraordinary case. Mistretta v. United States, 488 U.S.
361, 371 (1989). No district court has accepted the
government’s arguments. The only other court that
has considered them has rejected the government’s argument that “the decision to rescind the DACA program is unreviewable” and did not address the lawfulness of DACA’s rescission. Batalla Vidal v. Duke, Nos.
16-CV-4756 & 16-CV-5228, 2017 WL 5201116, at *10
(E.D.N.Y. Nov. 9, 2017), petition for leave to appeal
pending but stayed, No. 18-122 (2d Cir. Jan. 31, 2018).
With no conflict in the circuits, or even any disagreement in the district courts, the Court “should not
rush to answer a novel question” that “could benefit
from further attention in the court of appeals.” Spears
v. United States, 555 U.S. 261, 270 (2009) (Roberts,
C.J., dissenting). That is especially true where, as
here, this Court would be the “first appellate tribunal”
to decide the questions presented. Elonis v. United
States, 135 S. Ct. 2001, 2013 (2015); see Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per
curiam) (Supreme Court is “a court of final review and
not first view”). Granting certiorari now would require the Court to decide the issues without the benefit of views from any federal appellate court, and it
would send an unfortunate message to the lower
courts about the value of their work.
M. Nielsen, Secretary of Homeland Security, No. 17-3345 (2nd
Cir. Dec. 27, 2017) (order denying mandamus petition). But neither petition addressed reviewability or the merits of the parties’
dispute. See In re United States, 875 F.3d 1200, 1204 (9th Cir.
2017) (“The merits of [plaintiffs’] claims are not before us today.”).
15
3. The government suggests that certiorari is
warranted because there is a “conflict” of authority
over whether DACA is lawful. Pet. 15, 32. There are
two problems with that argument. First, there is no
such conflict. The government’s claim of conflict
wrongly assumes that the Fifth Circuit’s analysis of
the adoption of DAPA applies equally to the rescission
of DACA, despite acknowledged differences between
the programs and the posture of the litigation. DAPA
was a never-implemented deferred action program
that would have affected up to 4.3 million individuals.
Pet. App. 54a. The Fifth Circuit itself recognized that
“DACA and DAPA are not identical” and that “any extrapolation from DACA [to DAPA] must be done carefully.” Texas v. United States, 809 F.3d 134, 173-74
(5th Cir. 2015), aff ’d, 136 S. Ct. 2271, 2272 (2016).
The district court here correctly gave several reasons
why the question before it was not the same as the
issue before the Fifth Circuit in Texas. Pet. App. 50a54a; see note 6, infra. The only court that has addressed the lawfulness of DACA is the district court
below.
Second, even if there were disagreement about
DACA’s lawfulness, this case would be a poor vehicle
for considering it, because in the court below, the government conspicuously failed to argue that DACA is
unlawful. The government’s argument to justify the
rescission was that there was a risk of litigation if
DACA remained in force—not that DACA was unlawful. See Dkt. 204 at 10-11, 14-21. In fact, the government told the district court that it “need not agree
with [the Acting Secretary’s] determination [that
DACA was unlawful] to uphold her decision.” Dkt.
204 at 17; see also Pet. 8 (making the same argument).
The government cited the Fifth Circuit’s decision in
Texas v. United States as evidence of litigation risk
16
and briefly summarized that decision, id. at 4, 17, but
it meticulously avoided defending that decision’s reasoning or offering any full-throated argument that
DACA is unlawful, id. at 17. 4 The government simply
“ma[de] no effort in its briefs to challenge any of the
… reasons why DACA was and remains within the authority of the agency.” Pet. App. 48a. Having made
that strategic decision in the district court, the government should not be allowed to change course now,
especially when it is asking this Court to decide the
issues in the first instance.
B.
There Is No Urgent Need For This
Court’s Review
1. The government has not shown a need for an
“immediate determination” by this Court. Sup. Ct.
R. 11. Throughout this case, the district court and
court of appeals have proceeded expeditiously in light
of the government’s self-imposed deadline of March 5,
2018. The district court ordered expedited briefing on
the preliminary injunction request and motion to dismiss; it decided those issues promptly; and it certified
certain issues for immediate interlocutory review.
For example, although the petition claims that “ ‘specific and
intricate provisions’ of the INA” preclude deferred action for
DACA recipients, Pet. 28, the government’s district court brief
cited only statutes that support deferred action and similar relief, Dkt. 204 at 2, 8, 22, 28 (citing 8 U.S.C. §§ 1103(a)(1),
1154(a)(1)(D)(i)(II) and (IV), 1158(b)(1)(A), 1182(d)(5)(A), 1229b,
and 1252). Further, although the Attorney General stated that
he found “constitutional defects” in DACA, Pet. App. 17a, the
government’s brief below did not identify any relevant constitutional provisions. And the government declined to endorse the
Fifth Circuit’s holding (809 F.3d at 178) that DAPA was procedurally defective; instead, the government told the district court
that “INS deferred-action directives” are “policy statements exempt from notice and comment.” Dkt. 204 at 26-27.
4
17
The court of appeals granted permission for the interlocutory appeal quickly, then sua sponte entered an
expedited briefing schedule, where all briefing will be
completed by May 1, 2018. C.A. No. 18-15068,
Dkt. 21. There is every indication here “that the
Court of Appeals will proceed expeditiously to decide
[the] case.” United States v. Clinton, 524 U.S. 912
(1998).
The government contends that, because “time is of
the essence,” Pet. 14, it is appropriate to dispense with
normal appellate review. That argument is mistaken:
A desire for a prompt decision does not justify skipping the steps that help make the final decision a good
one. If it did, then every significant case should come
directly to this Court, without giving the parties an
opportunity to develop their arguments or the lower
courts a chance to provide their views. And the government should not be able to truncate appellate review based on exigency when it created the urgency
by deciding to end DACA in March 2018. Foregoing
appellate review of a decision affecting hundreds of
thousands of people is not worth the incremental time
benefit—especially where, as here, the government is
not harmed in the interim.
2. The government’s main complaint is that the
injunction requires it to “sanction indefinitely an ongoing violation of federal law” by each DACA recipient. Pet. 12 (emphasis omitted). As an initial matter,
the injunction does not compel the government to
“sanction” the unlawful presence of anyone. As the
district court made clear, the government may continue to exercise “fair discretion … on an individualized basis for each renewal application,” and
“[n]othing in [the] order prohibits [DHS] from proceeding to remove any individual, including any
18
DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves,
in its judgment, to be removed.” Pet. App. 67a.
Also, the government is routinely required to
“sanction” what it perceives to be ongoing violations of
federal law pending appellate review, e.g., Nat’l Ass’n
of Mfrs. v. Dep’t of Defense, No. 16-299, slip op. at 7
(Jan. 22, 2018) (noting the “nationwide stay of the
[waters of the United States] Rule pending further
proceedings”), and it is often enjoined from enforcing
federal laws against conduct that it believes to be unlawful, e.g., Gonzalez v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418, 423 (2006) (affirming
injunction against enforcement of Controlled Substances Act). The government’s belief in the correctness of its own position has never been enough to skip
over the court of appeals.
More fundamentally, the government’s conduct
simply is not consistent with its expressions of harm.
The injunction merely freezes the situation that has
been in place for more than five years, including under
the current administration, and with the support of
the current President. See Compl. ¶ 47 (President
confirming that his “policy” is “to allow the dreamers
to stay”). The current administration voluntarily continued DACA for more than eight months before rescinding it. Pet. App. 115a-16a. And when the district
court issued the preliminary injunction, the government did not seek a stay of the district court’s rulings—not from the district court, or the court of appeals, or this Court—even though it recognizes that a
19
stay pending appeal is the appropriate mechanism for
addressing any claim of harm. Pet. 12. 5
Instead, the Secretary of Homeland Security
stated publicly—and repeated to Congress under
oath—that removal of DACA recipients would “not [be
a] priority of enforcement for ICE” “should the program end.”
Interview by John Dickerson with
Kirstjen Nielsen, Sec’y, Dep’t of Homeland Sec., “CBS
This Morning” (Jan. 16, 2018), https://tinyurl.com/
y8ekmzar; see Oversight of the United States Department of Homeland Security: Hearing before the S.
Comm. on the Judiciary, 115th Cong. (2018). After
the petition was filed, the President stated that he
“certainly [has] the right” to keep DACA in place after
March 2018 (contrary to the petition’s argument that
DACA is unlawful), and that he very well “might” do
so. See CNN.com, READ: President Trump’s Full Exchange With Reporters, https://tinyurl.com/ydcafdtr
(Jan. 24, 2018) (CNN Statement). These statements
“blunt [the government’s] claim of urgency,” Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1317-18 (1983)
(Blackmun, J., in chambers), and “vitiate[] much of
the force” of its claimed harm, Beame v. Friends of the
Earth, 434 U.S. 1310, 1313 (1977) (Marshall, J., in
chambers).
The truth is that the government has no demonstrable basis for demanding “immediate determination” by this Court because the continuation of DACA
causes no concrete harm to anyone. DACA recipients
are heavily vetted to ensure they pose no “threat to
The government’s stated reason for not seeking a stay
makes little sense; a stay would not cause “abrupt shifts in the
enforcement of the Nation’s immigration laws,” Pet. 12, unless
the government was doing the shifting.
5
20
national security or public safety”; have not been convicted of a felony, or multiple or significant misdemeanors; and fulfill educational and work-related criteria. Pet. App. 9a. Their continued presence is not
an irreparable injury to the United States that warrants short-circuiting appellate review.
3. The government’s backup argument is that
granting certiorari now is needed to avoid “embroil[ing] [it] in protracted litigation.” Pet. 12-13. But
the only imminent litigation that the government will
face if this Court denies the petition is an ordinary appeal. And with the court of appeals’ expedited briefing
schedule, there is no reason to believe that litigation
will be “protracted.”
Piggybacking off its prior mandamus petition, the
government invokes “the risk [of ] onerous discovery
and administrative-record orders” if normal appellate
proceeds. Pet. 13. But the district court and court of
appeals have taken this Court’s mandamus ruling to
heart. See Pet. App. 25a. Discovery has been stayed,
Dkt. 244, and both sides have advised the district
court that they are willing to maintain that stay pending appeal, Dkt. 249. With respect to the administrative record, the court of appeals instructed the district
court not to compel disclosure of privileged documents
before the government can contest that outcome and
encouraged the district court to certify interlocutory
appeals where appropriate to obtain prompt resolution of those issues. C.A. No. 17-72917, Dkt. 45. The
parties and the district court are following that approach. Dkt. 249. The government’s complaints are
baseless.
4. At the same time the Solicitor General claims
an urgent need for resolution by this Court, Congress
and the President are pursuing a political solution
21
that will permit the Dreamers to remain in the United
States. See, e.g., Trump Pressures Democrats to Bargain on Immigration, N.Y. Times, Feb. 1, 2018,
https://tinyurl.com/ydb2hcn9. This Court sometimes
“choose[s] not to resolve [a] question” on writ of certiorari when “Congress itself can eliminate [the] conflict” between the parties. Braxton v. United States,
500 U.S. 344, 347-48 (1991); see Volpe v. D.C. Fed’n of
Civic Ass’ns, 405 U.S. 1030, 1030 (1972) (Burger, C.J.,
concurring in denial of certiorari) (noting “legislative
action” could effectively preclude review of questions
presented to the Court before it would be able to decide the case).
Here, the government’s petition would potentially
preempt the political process (in addition to preempting the work of the court of appeals). And it would do
so in contravention of the President’s statements that
his policy is to protect the Dreamers, that he favors a
political resolution of their status, and that he has the
“right” to keep DACA in place and (absent a political
solution) may well do so. See Compl. ¶ 47; CNN Statement; Donald J. Trump (@realDonaldTrump), Twitter
(Jan. 22, 2018, 8:30 p.m.), https://twitter.com/realdonaldtrump/status/ 955658992793149440 (“I want a
big win for everyone, including Republicans, Democrats and DACA ... Should be able to get there. See
you at the negotiating table!”). This is an “unusual”
case in which “the ultimate authority over the agency,
the Chief Executive, publicly favors the very program
the agency has ended.” Pet. App. 65a.
22
C.
This Dispute Does Not Raise An Issue Of
“Imperative Public Importance” Warranting Immediate Review
1. The parties’ dispute at this stage is not one of
“imperative public importance.” Sup. Ct. R. 11. Certainly this case is important, especially for the individual respondents here, who have relied on the promise of DACA to make decisions about their education,
jobs, and families. See, e.g., Compl. ¶¶ 37, 41, 48-98.
But in this posture there is no imminent crisis that
warrants parting with the tried-and-true appellate
process. The district court has entered a preliminary
injunction freezing DACA while the lower courts work
diligently to resolve the parties’ claims and Congress
and the President work towards a political solution.
Moreover, the narrow issues presented—concerning
APA review of the government’s cursory justification
for the rescission—have nothing in common with the
issues that this Court has previously resolved on writ
of certiorari before judgment.
2. Historically, “all public importance cases” in
which the Court has granted certiorari before judgment involved just three types of circumstances: “the
constitutionality of [an] Ac[t] of Congress,” “foreign
policy,” or a threat to “the Court’s institutional authority.” James Lindgren & William P. Marshall, The
Supreme Court’s Extraordinary Power to Grant Certiorari Before Judgment in the Court of Appeals, 1986
Sup. Ct. Rev. 259, 289-97 (1986). These are questions
that “touch fundamentally on the manner in which
our Republic is to be governed.” Dames & Moore, 453
U.S. at 659.
Of the four cases that the government cites, for example, three asked this Court to determine whether
the Constitution grants the President extraordinary
23
powers—to suspend litigation against a foreign state
to ensure compliance with this country’s treaty obligations, id. at 661; to “take possession of and operate
most of the Nation’s steel mills” to “avert a national
catastrophe” due to a wartime labor strike, Youngstown, 343 U.S. at 582; and to claim “absolute, unqualified Presidential privilege of immunity from judicial
process under all circumstances,” Nixon, 418 U.S. at
706. In the fourth—the last time this Court granted
certiorari before judgment in the court of appeals—
this Court reviewed the constitutionality of the Sentencing Guidelines used to issue “more than 40,000
sentences” annually—an issue that without prompt
resolution would have paralyzed the lower courts.
Mistretta, 488 U.S. at 369. Each of these questions
was so important and urgent that both sides of the
dispute favored this Court’s immediate intervention.
See id. at 371; Dames & Moore, 452 U.S. at 932-33
(1981); Nixon, 418 U.S. at 686-87; Youngstown, 343
U.S. at 937.
The routine questions of administrative review
presented here are not remotely comparable. The first
question—interpretation of judicial review bars in the
APA and INA—is a question of statutory interpretation, and plainly not an issue that “touch[es] fundamentally upon the manner in which our Republic is to
be governed.” Dames & Moore, 453 U.S. at 659. The
second question—a challenge to a preliminary injunction—concerns whether a particular agency decision
was arbitrary or capricious. The parties disagree
about the reasons for the rescission, Pet. App. 55a57a; whether those reasons are inadequate, legally erroneous, or pretextual; and whether the government
considered all of the relevant factors, Dkt. 111 at 1631. These are run-of-the-mill APA issues, raised in
the context of a preliminary injunction reviewed for
24
abuse of discretion, not questions of “imperative public importance” necessitating immediate review.
3. The conceded importance of the issues presented should only enhance, rather than diminish, the
need for lower court review. The critical question of
whether 700,000 current Dreamers will be permitted
to remain and earn a livelihood in the only country
they have known since childhood “deserves for its solution all of the wisdom that our judicial process
makes available.” Youngstown, 343 U.S. at 938 (Burton, J., dissenting from certiorari before judgment).
“The need for soundness in the result outweighs the
need for speed in reaching it.” Id. Respondents and—
indeed, “[t]he Nation”—are therefore “entitled to the
substantial value inherent in an intermediate consideration of the issue by the Court of Appeals.” Id.
II. The Government’s Merits Arguments Do Not
Justify Certiorari Before Judgment
The government also argues that certiorari is warranted because “[t]he decision below is wrong.”
Pet. 15. But this Court does not sit as a “court of error
correction,” least of all as to the type of issues of first
impression presented here. Martin v. Blessing, 134 S.
Ct. 402, 405 (2013) (Alito, J., respecting the denial of
certiorari). The government’s merits arguments fail
to demonstrate a compelling need for this Court’s involvement at this stage.
A.
The Government’s Reviewability Arguments Are Insubstantial
The government first argues that the APA, 5 U.S.C
§ 701(a)(2), and a particular provision of the INA,
8 U.S.C. § 1252(g), preclude all judicial review of the
Acting Secretary’s decision to end the DACA program.
Not so.
25
1. Section 701(a)(2) precludes APA review of
agency action that is “committed to agency discretion
by law.” The government’s argument rests on the
premise that a “presumption of nonreviewability applies with particular force when it comes to immigration.” Pet. 18. That premise is f latly wrong: This
Court has consistently applied a “strong presumption
in favor of judicial review of administrative action” in
the immigration context. INS v. St. Cyr, 533 U.S. 289,
298 (2001); see also, e.g., Mach Mining, LLC v. EEOC,
135 S. Ct. 1645, 1651 (2015) (“[T]his Court applies a
‘strong presumption’ favoring judicial review of administrative action.”) (citation omitted).
Section 701(a)(2) “is a very narrow exception” that
is applicable only where “there is no law to apply,” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402,
410 (1971) (citation omitted), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977),
meaning that “a court would have no judicially manageable standards … for judging how and when an
agency should exercise its discretion,” Heckler v.
Chaney, 470 U.S. 821, 830 (1985). This is not one of
those rare instances where there is no law to apply.
As the district court explained, “the new administration didn’t terminate DACA on policy grounds”; it “terminated DACA over a point of law.” Pet. App. 18a.
Rather than arguing that the rescission rested on the
Acting Secretary’s discretion to determine DHS’s enforcement priorities, the government now maintains
that she had no choice but to terminate DACA due to
its purported unlawfulness. See Pet. 30 n.8. “[D]etermining illegality is a quintessential role of the
courts.” Pet. App. 30a.
26
The government’s backup argument—that the rescission was justified by litigation risk—likewise is reviewable. The agency abruptly changed position, and
when that happens, courts may review the decision to
see if the agency provided reasons to justify the
change. See, e.g., Encino Motorcars, LLC v. Navarro,
136 S. Ct. 2117, 2126-27 (2016); see Pet. App. 58a-60a.
The government’s “litigation-risk rationale,” Pet. 26,
is not one that depends on a “complicated balancing of
a number of factors which are peculiarly within
[DHS’s] expertise” or an assessment whether the decision “best fits the agency’s overall policies.” Chaney,
470 U.S. at 831. And the decision to rescind DACA is
a “major policy decision” that is “quite different from
day-to-day agency nonenforcement decisions,” and
thus the “appropriate starting point” in such a case is
the “APA presumption of reviewability.” Nat’l Treas.
Emps. Union v. Horner, 854 F.2d 490, 496 (D.C. Cir.
1988).
2. Section 1252(g) of Title 8 likewise does not bar
judicial review here. By its text, that provision bars
judicial review of three specific types of decisions or
actions: those taken “to commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C.
§ 1252(g). This Court has interpreted those provisions narrowly, explaining that judicial review is precluded only for those “three discrete actions.” AADC,
525 U.S. at 482. This case involves none of them. This
case is not a challenge to the government’s decision to
start the removal process against a particular person,
or to adjudicate an individual’s immigration case, or
to actually remove an individual. It is a challenge to
the decision to end the DACA program, not a challenge to an individual enforcement action.
27
The government attempts to avoid the plain text of
Section 1252(g) by arguing that the rescission is an
“ingredient” to the commencement of enforcement
proceedings at some future date. Pet. 22. But as the
district court recognized, Pet. App. 32a, this Court already rejected that argument when it explained that
the three categories listed in Section 1252(g) are not a
“shorthand” for “all claims arising from deportation
proceedings.” AADC, 525 U.S. at 482.
The government seizes on AADC’s statement that
Section 1252(g) seems “designed to give some measure
of protection to ‘no deferred action’ decisions and similar discretionary determinations.” Pet. 21-22. But
the context makes clear that the statement referred
only to decisions involving a specific individual whose
removal proceedings had already commenced. The
government has cited no case where Section 1252(g)
has barred a policy challenge by a group of plaintiffs
against whom the government has not even begun removal proceedings. And the courts of appeals have
consistently cabined Section 1252(g) to the three circumstances enumerated and rejected its application
to programmatic challenges. See, e.g., Wong v. United
States, 373 F.3d 952, 965 (9th Cir. 2004); Texas, 809
F.3d at 164. There is no imminent need for this Court
to review the issue.
B.
The Preliminary Injunction Ruling Does
Not Warrant Immediate Review
The district court entered a preliminary injunction
after making an initial assessment of the merits, assessing irreparable injury, and weighing the equities.
Nothing about the court’s decision—which is reviewed
at this stage for abuse of discretion and upheld if it is
a “close” call, ACLU, 542 U.S. at 664-65—necessitates
immediate review.
28
1. The preliminary injunction is based on the
district court’s conclusion that respondents are likely
to prevail on their claim that the rescission is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A).
Here, the government has provided two justifications
for DACA’s rescission, both of which fail APA review.
a. The government’s principal argument before
this Court is that the Acting Secretary ended DACA
because continuing the DACA program would have
been unlawful. Pet. 31. That view is contrary to the
government’s long-standing position that deferred action programs are permissible, and so the agency was
required to “provide a reasoned explanation for the
change.” Encino Motorcars, 136 S. Ct. at 2125. But
the only legal analysis the Attorney General and Acting Secretary provided for their decision was a citation to the Fifth Circuit’s decision about the DAPA
program. Dkt. 64-1 at AR251; Pet. App. 115a. Before
the district court, the government shifted its argument to litigation risk—an argument that, according
to the government, did not depend on a showing that
DACA is unlawful. See Dkt. 204 at 17; see also Pet. 8.
And the government declined to defend the Fifth Circuit’s ruling. See note 4, supra.
Even though the government had not made the argument that DACA is unlawful, the district court addressed that argument and correctly concluded that it
is wrong. The district court reviewed the numerous
authorities that have long justified deferred action
programs. Pet. App. 42a-47a. The court then explained the reasons why the Fifth Circuit’s decision
29
about DAPA does not apply to DACA. 6 In response,
the government “ma[de] no effort” “to challenge any of
the … reasons why DACA was and remains within the
authority of the agency.” Id. at 48a. Under the circumstances, the district court had ample basis to conclude that respondents are likely correct on this issue.
b. The government’s principal argument before
the district court, repeated in its petition, Pet. 8, 26,
was that DACA’s rescission was justified by litigation
risk. But that rationale appears “[n]owhere in the administrative record.” Pet. App. 56a. The reason “actually given” by the Attorney General and the Acting
Secretary was “DACA’s purported illegality”; neither
the Attorney General nor the agency ever “consider[ed] whether defending the program in court
would (or would not) be worth the litigation risk.” Id.
The government now finds a litigation-risk rationale
in the Acting Secretary’s statement that DACA should
be “wound down in ‘an efficient and orderly fashion.’ ”
In brief: First, the Fifth Circuit’s procedural holding rested
on the district court’s factual finding that “DAPA would not genuinely leave the agency and its employees free to exercise discretion.” Texas, 809 F.3d at 172-78. Here, by contrast, the district
court found ample evidence of “discretionary denials of DACA
applications.” Pet. App. 49a. Second, the Fifth Circuit’s substantive holding—that DAPA exceeded the government’s statutory
authority—rested in part on its determination that granting deferred action to alien parents of U.S. citizens conflicted with INA
provisions that gave them an alternate pathway to lawful presence. Pet. App. 54a. DACA, in contrast, fills a gap in the statute
by indicating how the government exercises its prosecutorial discretion with respect to a class of non-citizens whose fate was
never directly decided by Congress. Id. at 58a. Third, DAPA was
challenged before it took effect, whereas DACA has been in place
for more than five years, meaning that any legal challenge to
DACA would have to overcome the significant reliance interests
that have developed over those years, and the doctrine of laches.
Pet. App. 57a.
6
30
Pet. 26 (quoting Pet. App. 115a). But that decision
was made in light of the decision to rescind DACA and
was never offered as a reason for rescinding it. Pet.
App. 115a; see SEC v. Chenery Corp., 332 U.S. 194,
196 (1947) (APA review is limited to the “grounds invoked by the agency”).
In any event, the district court correctly determined that the government’s post hoc “litigation risk”
justification is arbitrary and capricious. Rescinding
DACA makes no sense as a way to avoid litigation
given the predictable eventuality that the rescission
would and has engendered further litigation. “At
most, the [government] deliberately traded one lawsuit for another.” Organized Vill. of Kake v. U.S. Dep’t
of Agric., 795 F.3d 956, 970 (9th Cir. 2015). Further,
the government failed to consider the “differences between DAPA and DACA that might have led to a different result” in any litigation than in Texas. Pet.
App. 57a; see note 6, supra. And the government did
not weigh any perceived litigation risks against countervailing interests that could have warranted defending DACA. Pet. App. at 58a-60a. Those interests include the “serious reliance interests” by DACA recipients, which are precisely the kinds of interests that an
agency “must … tak[e] into account” before changing
position. Encino Motorcars, 136 S. Ct. at 2126 (citation omitted). The paucity of the government’s explanation for its change in position meant the district
court had ample basis for believing that respondents’
claims had sufficient merit to justify preliminary injunctive relief.
2. The preliminary injunction also rested on the
district court’s assessment of irreparable injury and
weighing of the equities. The court rightly concluded
31
that respondents—especially the individual DACA recipients—would be irreparably harmed if the DACA
program were permitted to expire during the pendency of this litigation. Pet. App. 62a-64a. The court
also found that the public interest favors temporary
relief to freeze the DACA program. Id. at 64a-66a. As
the President himself explained, “[no]body really
want[s] to throw out good, educated and accomplished
young people who have jobs, some serving in the military.” Id. at 65a (quoting President’s statement).
Tellingly, the government says nothing about
these factors. Combined with the district court’s preliminary assessment of the merits, they sufficiently
justify the preliminary injunction. The government
has shown no error, let alone error worthy of upending
the normal process of appellate review and upsetting
a political process that may soon provide a long-term
solution for the Dreamers.
32
CONCLUSION
The petition for a writ of certiorari before judgment should be denied.
Respectfully submitted.
NICOLE A. SAHARSKY
MATTHEW S. ROZEN
HALEY S. MORRISSON
GIBSON, DUNN & CRUTCHER LLP
1050 CONNECTICUT AVE., N.W.
WASHINGTON, DC 20036
(202) 955-8500
MARK D. ROSENBAUM
JUDY LONDON
PUBLIC COUNSEL
610 SOUTH ARDMORE AVENUE
LOS ANGELES, CA 90005
(213) 385-2977
LUIS CORTES ROMERO
BARRERA LEGAL GROUP, PLLC
19309 68TH AVENUE SOUTH,
SUITE R102
KENT, WA 98032
(253) 872-4730
ERWIN CHEMERINSKY
UNIVERSITY OF CALIFORNIA,
BERKELEY SCHOOL OF LAW*
215 BOALT HALL
BERKELEY, CA 94720
(510) 642-6483
THEODORE J. BOUTROUS, JR.
ETHAN D. DETTMER
KIRSTEN GALLER
JONATHAN N. SOLEIMANI
KELSEY J. HELLAND
GIBSON, DUNN & CRUTCHER LLP
333 SOUTH GRAND AVENUE
LOS ANGELES, CA 90071
(213) 229-7000
TBOUTROUS@GIBSONDUNN.COM
LAURENCE H. TRIBE
HARVARD LAW SCHOOL*
1575 MASSACHUSETTS AVENUE
CAMBRIDGE, MA 02138
(617) 495-1767
LEAH M. LITMAN
UNIVERSITY OF CALIFORNIA,
IRVINE SCHOOL OF LAW*
401 E. PELTASON DRIVE
IRVINE, CA 92697
(949) 824-7722
Counsel for Respondents Dulce Garcia, Miriam Gonzalez Avila,
Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez,
and Jirayut Latthivongskorn
*Affiliation for identification purposes only
FEBRUARY 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.