Amicus Curiae Brief — Department of Homeland Security, et al., Petitioners v. Regents of the University of California, et al.

Nos. 18-587, 18-588, 18-589

In the Supreme Court of the United States

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

PETITIONERS,

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,

RESPONDENTS.

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS,

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, ET AL., RESPONDENTS.

KEVIN K. MCALEENAN, ACTING SECRETARY OF

HOMELAND SECURITY, ET AL., PETITIONERS,

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL., RESPONDENTS.

On Writs of Certiorari to the United States Courts of

Appeals for the Ninth, D.C., and Second Circuits

BRIEF OF AMICI CURIAE PUBLIC CITIZEN, NATURAL

RESOURCES DEFENSE COUNCIL, AND AMERICAN CIVIL

LIBERTIES UNION IN SUPPORT OF RESPONDENTS

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

Attorneys for Amici Curiae

October 2019

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 5

I.

This Court’s decisions, including Chaney, have

narrowly construed the APA’s exceptions to

judicial review. ..................................................... 5

II. Chaney’s holding is limited to agency decisions

not to initiate enforcement proceedings. ............. 7

III. Consistent with Chaney, lower federal courts

have held that agency actions promulgating

general enforcement-related policies are

reviewable. ......................................................... 11

IV. The government’s arguments for extending

Chaney are unconvincing................................... 16

CONCLUSION.......................................................... 21

ii

TABLE OF AUTHORITIES

Cases:

Page(s)

Air Courier Conf. of Am. v. Am.

Postal Workers Union,

498 U.S. 517 (1991) ............................................. 21

Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667 (1986) ......................................... 6, 21

Center for Auto Safety, Inc. v. NHTSA,

342 F. Supp. 2d 1 (D.D.C. 2004),

aff’d, 452 F.3d 798 (D.C. Cir. 2006) .............. 14, 15

Chiang v. Kempthorne,

503 F. Supp. 2d 343 (D.D.C. 2007) ..................... 14

Crowley Caribbean Transport, Inc. v. Peña,

37 F.3d 671 (D.C. Cir. 1994) ........................passim

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019) ................................... 5, 7, 9

Edison Elec. Inst. v. EPA,

996 F.2d 326 (D.C. Cir. 1993) ............................. 11

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ............................................. 20

FEC v. Akins,

524 U.S. 11 (1998) ......................................... 10, 21

Franklin v. Massachusetts,

505 U.S. 788 (1992) ............................................. 10

Gulf Restoration Network v. McCarthy,

783 F.3d 227 (5th Cir. 2015) ............................... 13

Heckler v. Chaney,

470 U.S. 821 (1985) ......................................passim

iii

ICC v. B’hood of Locomotive Eng’rs,

482 U.S. 270 (1987) ............................................. 18

INS v. St. Cyr,

533 U.S. 289 (2001) ............................................. 20

Kenney v. Glickman,

96 F.3d 1118 (8th Cir. 1996) ......................... 13, 16

Lincoln v. Vigil,

508 U.S. 182 (1993) ........................................... 7, 9

Mach Mining, LLC v. EEOC,

135 S. Ct. 1645 (2015) ....................................... 6, 7

Massachusetts v. EPA,

549 U.S. 497 (2007) ..................................... 7, 9, 10

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ............................................... 20

Nat’l Wildlife Fed’n v. EPA,

980 F.2d 765 (D.C. Cir. 1992) ............................. 11

OSG Bulk Ships, Inc. v. United States,

132 F.3d 808 (D.C. Cir. 1998) ....................... 12, 13

Ringo v. Lombardi,

706 F. Supp. 2d 952 (W.D. Mo. 2010) ................. 15

Riverkeeper, Inc. v. Collins,

359 F.3d 156 (2d Cir. 2004) ........................... 13, 14

Roane v. Holder,

607 F. Supp. 2d 216 (D.D.C. 2009) ..................... 15

Texas v. United States,

809 F.3d 134 (5th Cir. 2015), aff’d by equally

divided Court, 136 S. Ct. 2271 (2016)................. 13

Webster v. Doe,

486 U.S. 592 (1988) ....................................... 10, 20

iv

Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.,

139 S. Ct. 361 (2019) ......................................... 6, 7

WildEarth Guardians v. DOJ,

752 F. Appx. 421 (9th Cir. 2018) ......................... 14

WildEarth Guardians v. DOJ,

181 F. Supp. 3d 651 (D. Ariz. 2015) .................... 14

Constitutional Provisions, Statutes, and Rules:

5 U.S.C. §§ 701–706 .................................................... 5

5 U.S.C. § 701(a) ..................................................... 3, 5

5 U.S.C. § 701(a)(1) ..................................................... 6

5 U.S.C. § 701(a)(2) ............................... 2, 6, 7, 8, 9, 16

5 U.S.C. § 704 .............................................................. 5

5 U.S.C. § 706(2)(A) ...................................... 3, 6, 7, 10

Other:

Office of Legal Counsel, U.S. Department of Justice,

The Department of Homeland Security’s Authority

to Prioritize Removal of Certain Aliens

Unlawfully Present in the United States and to

Defer Removal of Others (Nov. 19, 2014),

2014 WL 10788677 ........................................ 15, 16

INTEREST OF AMICI CURIAE1

Amicus Curiae Public Citizen, Inc., is a nonprofit

advocacy organization founded in 1971. Public Citizen

appears on behalf of its nationwide membership before Congress, administrative agencies, and courts on

a range of issues, including protection of consumers

and workers and fostering open and fair governmental

processes.

Amicus curiae Natural Resources Defense Council,

Inc., (NRDC) is a nonprofit advocacy group that works

to protect health and the environment. Since its

founding in 1970, NRDC has pursued this goal

through science, policy analysis, advocacy before

agencies and legislatures, and litigation to enforce environmental laws.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

nearly 2 million members and supporters dedicated to

the principles of liberty and equality embodied in our

nation’s Constitution and civil rights laws. The ACLU,

through its Immigrants’ Rights Project and state affiliates, engages in a nationwide program of litigation,

advocacy, and public education to enforce and protect

the constitutional and civil rights of noncitizens.

Amici have litigated hundreds of cases seeking judicial review of government actions under the Administrative Procedure Act (APA), special review provisions applicable to particular statutes, and nonstatutory mechanisms for review of unlawful government

––––––––––––––––––––––––

1 This brief was not authored in whole or part by counsel for

a party. No one other than amici curiae made a monetary contribution to preparation or submission of the brief. Counsel for all

parties have filed blanket consents to the filing of amicus briefs.

2

action. It is critical to the mission of these organizations that courts adhere to the principle that agency

action is presumptively subject to judicial review, with

exceptions to reviewability narrowly construed. In

their own litigation, amici confront arguments by governmental defendants that agency actions reflect unreviewable exercises of enforcement discretion or are

otherwise committed to agency discretion by law.

Amici therefore have a strong interest in confining to

their proper sphere these exceptions to the availability of judicial review.

In this case, the government petitioners argue that

their decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was an exercise of enforcement discretion that is unreviewable under Heckler v. Chaney, 470 U.S. 821 (1985). For a generation

since Chaney, however, courts have recognized that

that decision bars review of discretionary decisions

not to commence particular enforcement actions, not

of agencies’ adoption of general policies affecting enforcement decisions. The government’s brief, however,

does not address this body of law. Amici therefore submit this brief to provide a more complete account of

the boundaries of Chaney’s exception to the general

presumption favoring judicial review.

SUMMARY OF ARGUMENT

The government’s principal submission in this case

is that its decision to rescind DACA “is a quintessential exercise of enforcement discretion” that is unreviewable under the APA because it is “‘committed to

agency discretion by law.’” U.S. Br. 17 (quoting 5

U.S.C. § 701(a)(2)). Invoking Heckler v. Chaney’s holding that section 701(a)(2) “precludes review … of an

agency’s decision not to institute enforcement

3

actions,” id. (citing 470 U.S. at 831), the government

contends that that holding also extends to agency actions adopting or rescinding a “policy of nonenforcement,” id. at 17, 19. As respondents explain, section

701(a)(2) cannot apply here because, in rescinding

DACA, the Secretary of Homeland Security did not

purport to exercise any enforcement discretion, but instead bowed to the Attorney General’s determination

that DACA was unlawful. See, e.g., D.C. Resp. Br. 22–

30. Even leaving that point aside, however, the government’s argument depends entirely on its assertion

that Heckler v. Chaney is applicable to “a broad and

categorical decision to rescind a nonenforcement policy.” Id. at 21. The government’s position that Chaney

applies to actions promulgating enforcement policies

is contrary to decades of case law in the federal courts

recognizing that Chaney’s reasoning does not extend

to such agency actions.

The APA embodies a broad presumption in favor of

judicial review of agency action. Persons aggrieved by

final agency action may generally obtain review in the

courts unless the action falls within two narrow exceptions applicable when (1) other statutes “preclude judicial review,” or (2) the action is “committed to agency

discretion by law.” 5 U.S.C. § 701(a). The second exception, at issue here, does not apply broadly to all exercises of agency discretion; indeed, the APA elsewhere explicitly provides for review of discretionary

agency actions. See 5 U.S.C. § 706(2)(A). As this Court

has repeatedly held, the “committed to agency discretion by law” exception applies only to narrow categories of agency actions that have traditionally been excluded from the scope of judicial review because courts

have no meaningful standards against which to review them.

4

The kind of action that was the subject of Heckler

v. Chaney—an agency decision not to initiate an enforcement proceeding—is one of the few examples of

agency action that this Court has determined falls

within that exception. Chaney, however, does not

broadly immunize from review all agency actions that

arguably implicate an agency’s enforcement discretion. Chaney focused narrowly on the longstanding judicial tradition of declining review of agency decisions

not to undertake enforcement actions, and on reasons

for denying review that are specific to such decisions

and inapplicable when an agency adopts a general policy that governs its enforcement decisions. This Court

has, therefore, consistently described Chaney as limited to agency decisions not to initiate enforcement

proceedings.

Based on the limits of Chaney’s holding and reasoning, the lower federal courts, in the decades since

that decision, have elaborated a workable and principled distinction between unreviewable actions declining to initiate particular enforcement proceedings,

and reviewable actions promulgating general rules or

policies affecting agency enforcement. This case law

respects the judicial tradition of noninterference with

agency nonenforcement decisions that lies at the heart

of Chaney. At the same time, the courts have properly

subjected agency actions that fall outside that tradition to review for conformity with law and the APA’s

prohibition of arbitrary and capricious agency action.

As this body of case law reflects, the promulgation of

general policies affecting agency enforcement is wellsuited to such judicial review.

The government’s arguments for expanding

Chaney’s preclusion of review to encompass generally

applicable agency policies are unconvincing. The

5

government points to no tradition against review of

agency policies comparable to the one Chaney identified with respect to decisions not to initiate enforcement proceedings. And contrary to the government’s

characterization, Chaney did not purport to address

general, “programmatic” actions. The nonenforcement

decision in Chaney may have reflected the agency’s

general policy views, but the Court rejected review because of the form the agency’s action took—a decision

not to initiate enforcement proceedings—not because

enforcement-related policies are inherently unreviewable. General rules or policies are amenable to review

not only for conformity to statutory mandates, but also

for their adherence to norms of reasoned explanation

applicable to agency action generally. Far from infringing on separation-of-powers principles, as the

government suggests, such review is a proper and important exercise of the courts’ power to confine the executive branch to the lawful exercise of authority delegated by Congress.

ARGUMENT

I.

This Court’s decisions, including Chaney,

have narrowly construed the APA’s

exceptions to judicial review.

The starting-point for consideration of the government’s argument against judicial review is the longestablished principle that the APA’s provisions for judicial review, set forth at 5 U.S.C. §§ 701–706, “embod[y] a ‘basic presumption of judicial review.’” Dep’t

of Commerce v. New York, 139 S. Ct. 2551, 2567 (2019)

(citation omitted). That presumption is set forth in

section 704, which generally makes “final agency action … subject to judicial review,” and section 701(a),

which creates narrow exceptions to the availability of

6

review only “to the extent that—(1) statutes preclude

judicial review; or (2) agency action is committed to

agency discretion by law.”

As this Court has repeatedly emphasized, these

provisions reflect that “Congress rarely intends to prevent courts from enforcing its directives to federal

agencies.” Mach Mining, LLC v. EEOC, 135 S. Ct.

1645, 1651 (2015). The APA’s language and structure

manifest Congress’s choice to provide remedies for the

“legal lapses and violations” that are especially likely

to occur “when they have no consequence.” Id. at

1652–53. “For that reason, this Court applies a ‘strong

presumption’ favoring judicial review of administrative action.” Id. at 1651 (quoting Bowen v. Mich. Acad.

of Family Physicians, 476 U.S. 667, 670 (1986)). Consistent with that strong presumption, the Court has

read the APA’s exceptions to judicial review narrowly

and imposed on agencies “a ‘heavy burden’ in attempting to show that Congress ‘prohibit[ed] all judicial review’” of their actions. Id. (citation omitted).

In this case, the government suggests only glancingly that applicable statutes “preclude judicial review” within the meaning of section 701(a)(1), see U.S.

Br. 20–21; it relies principally on section 701(a)(2)’s

exception for “agency action … committed to agency

discretion by law.” This Court has explained, however,

that section 701(a)(2) does not preclude review of all

discretionary agency actions: If it did, it would contradict “the command in § 706(2)(A) that courts set aside

any agency action that is ‘arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance

with law.’” Weyerhaeuser Co. v. U.S. Fish & Wildlife

Serv., 139 S. Ct. 361, 370 (2019). “A court could never

determine that an agency abused its discretion if all

matters committed to agency discretion were

7

unreviewable.” Id. Thus, “[t]o give effect to § 706(2)(A)

and to honor the presumption of review, we have read

the exception in § 701(a)(2) quite narrowly, restricting

it to ‘those rare circumstances where the relevant statute is drawn so that a court would have no meaningful

standard against which to judge the agency’s exercise

of discretion.’” Id. (quoting Lincoln v. Vigil, 508 U.S.

182, 191 (1993)); accord, Dep’t of Commerce, 139 S. Ct.

at 2568.

In keeping with this narrow reading of section

706(a)(2), the Court has restricted it to the types of

decisions that courts “traditionally” recognized as unreviewable under the “common law” of judicial review

that preceded the APA’s enactment. Chaney, 470 U.S.

at 832. Thus, “[t]he few cases in which [this Court]

ha[s] applied the § 701(a)(2) exception involved

agency decisions that courts have traditionally regarded as unreviewable,” not types of actions “that

federal courts regularly review.” Weyerhaeuser, 139 S.

Ct. at 370. Chaney is one of the rare instances in which

the Court identified a narrow type of action—“a decision not to institute enforcement proceedings”—that

is “traditionally committed to agency discretion.” Dep’t

of Commerce, 139 S. Ct. at 2568. This Court has consistently refused to give Chaney a more expansive

reading, see, e.g., id.; Weyerhaeuser, 139 S. Ct. at 370;

Mach Mining, 135 S. Ct. at 1652; Massachusetts v.

EPA, 549 U.S. 497, 527 (2007).

II. Chaney’s holding is limited to agency

decisions not to initiate enforcement

proceedings.

Chaney involved a challenge to the failure of the

Food and Drug Administration (FDA) to take enforcement action against the use of unapproved drugs for

8

execution of prisoners facing death sentences. This

Court framed the issue before it in accordingly narrow

terms as one involving “the extent to which determinations by the FDA not to exercise its enforcement authority over the use of drugs in interstate commerce

may be judicially reviewed.” 470 U.S. at 828. While

emphasizing the breadth of the presumption in favor

of judicial review under the APA and the narrowness

of the exception for actions “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), the Court held

that the presumption was inapplicable to “an agency’s

decision not to undertake certain enforcement actions,” 470 U.S. at 831, because of the “general unsuitability for judicial review” of such decisions, id. The

Court went on to explain that “general unsuitability”

in terms that made plain that the decisions it deemed

unsuitable for judicial review were decisions to forbear from taking particular enforcement actions:

[A]n agency decision not to enforce often involves

a complicated balancing of a number of factors

which are peculiarly within its expertise. Thus,

the agency must not only assess whether a violation has occurred, but whether agency resources

are best spent on this violation or another,

whether the agency is likely to succeed if it acts,

whether the particular enforcement action requested best fits the agency’s overall policies,

and, indeed, whether the agency has enough resources to undertake the action at all. An agency

generally cannot act against each technical violation of the statute it is charged with enforcing.

Id. at 831–32 (emphasis added).

The Court accordingly held “agency refusals to institute investigative or enforcement proceedings” to be

9

presumptively unreviewable. Id. at 838. Justice Brennan, concurring, agreed that “[t]his general presumption is based on the view that, in the normal course of

events, Congress intends to allow broad discretion for

its administrative agencies to make particular enforcement decisions, and there often may not exist

readily discernible ‘law to apply’ for courts to conduct

judicial review of nonenforcement decisions.” Id. at

838 (Brennan, J., concurring). The Court recognized,

moreover, that situations in which an agency “consciously and expressly adopted a general policy” inconsistent with statutory responsibilities were not controlled by its holding. Id. at 833 n.4 (majority). Justice

Brennan likewise distinguished such policies from the

“[i]ndividual, isolated nonenforcement decisions” that

the Court’s holding addressed. Id. at 839 (Brennan, J.,

concurring).

Thus, this Court’s subsequent decisions have consistently characterized Chaney’s holding as narrowly

applicable to decisions to forgo enforcement actions,

not as establishing a broad exemption from the APA

for all agency actions that touch in any way on how an

agency exercises enforcement authority. Last Term,

for example, the Court described Chaney as making “a

decision not to institute enforcement proceedings” presumptively unreviewable. Dep’t of Commerce, 139 S.

Ct. at 2568. Likewise, in Massachusetts v. EPA, the

Court noted Chaney’s holding “that an agency’s refusal to initiate enforcement proceedings is not ordinarily subject to judicial review.” 549 U.S. at 527. The

Court’s decision in Lincoln v. Vigil used an almost

identical characterization: “In Heckler itself, we held

an agency’s decision not to institute enforcement proceedings to be presumptively unreviewable under

§ 701(a)(2).” 508 U.S. at 191. Every other case in

10

which the Court has described Chaney’s holding uses

equivalent terms. See, e.g., FEC v. Akins, 524 U.S. 11,

26 (1998); Franklin v. Massachusetts, 505 U.S. 788,

818 (1992); Webster v. Doe, 486 U.S. 592, 599 (1988).

Both in promulgating DACA, and in rescinding it,

the government adopted policies concerning criteria

determining whether a noncitizen will be permitted to

remain in the United States. Those actions were not

decisions to forgo specific enforcement actions. Neither Chaney nor any of this Court’s decisions following

it has held that the APA precludes review of actions

promulgating general policies such as DACA’s rescission. Indeed, as noted above, Chaney itself distinguished the adoption of general policies from decisions

not to institute enforcement proceedings. Likewise,

Massachusetts v. EPA explained why similar actions—denials of rulemaking petitions involving

whether or not to promulgate policies governing an

agency’s enforcement of the statutes it administers—

do not fall within Chaney’s ambit: Unlike “an agency’s

decision not to initiate an enforcement action,” such

actions “are less frequent, more apt to involve legal as

opposed to factual analysis,” and involve “a public explanation” of the agency’s action. 549 U.S. at 527 (citation omitted). Those features enhance the amenability of such actions to review aimed at determining

whether they are “arbitrary and capricious, an abuse

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

5 U.S.C. § 706(2)(A).

11

III. Consistent with Chaney, lower federal

courts have held that agency actions

promulgating general enforcement-related

policies are reviewable.

In accordance with the limits on this Court’s rationale in Chaney, the lower courts have for decades

developed a workable distinction between discretionary decisions declining to initiate enforcement proceedings, which are presumptively unreviewable under Chaney, and actions promulgating policies that

guide an agency’s enforcement or nonenforcement determinations, which fall outside Chaney’s narrow

scope. This line of precedent fully respects exercises of

discretion not to take enforcement action that are traditionally not subject to judicial review. Where that

tradition is inapplicable, however, courts have given

effect to the APA’s broad presumption favoring review

by allowing agency actions to be tested for abuse of

discretion and compliance with law when meaningful

standards for review are available.

Given its significant role in developing and applying principles of administrative law, the D.C. Circuit

has played an active part in fleshing out this distinction. That court has repeatedly held that an agency’s

adoption of rules or general policies establishing criteria for enforcement is reviewable. See, e.g., Edison

Elec. Inst. v. EPA, 996 F.2d 326 (D.C. Cir. 1993); Nat’l

Wildlife Fed’n v. EPA, 980 F.2d 765 (D.C. Cir. 1992).

In Crowley Caribbean Transport, Inc. v. Peña, 37 F.3d

671 (1994), for example, the D.C. Circuit explained

that, under Chaney, “an agency’s statement of a general enforcement policy may be reviewable for legal

sufficiency where the agency has expressed the policy

as a formal regulation after the full rulemaking

12

process … or has otherwise articulated it in some form

of universal policy statement.” Id. at 676.

Crowley identified three reasons why Chaney’s

presumption that a decision to forgo initiating an enforcement proceeding is unreviewable does not apply

to an agency’s promulgation of a general enforcement

(or nonenforcement) policy. First, because enforcement policies are not tied to the particular facts of an

individual enforcement action, “they are more likely to

be direct interpretations of the commands of the substantive statute rather than the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision and that are, as Chaney

recognizes, peculiarly within the agency’s expertise

and discretion.” Id. at 677. Second, an agency’s statement of a policy regarding enforcement “poses special

risks” 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,” id. (quoting Chaney, 470 U.S. at 833 n.4), rendering a presumption of nonreviewability “inappropriate.” Id. “Finally, an agency will generally present a

clearer (and more easily reviewable) statement of its

reasons for acting when formally articulating a

broadly applicable enforcement policy, whereas such

statements in the context of individual decisions to

forego enforcement tend to be cursory, ad hoc, or post

hoc.” Id.

Based on these considerations, Crowley articulated, and the D.C. Circuit has subsequently followed,

a generally applicable corollary to Chaney: While

“agencies’ nonenforcement decisions are generally unreviewable under the Administrative Procedure Act,

… an agency’s adoption of a general enforcement policy is subject to review.” OSG Bulk Ships, Inc. v.

13

United States, 132 F.3d 808, 812 (D.C. Cir. 1998)

(holding that courts could review the federal Maritime

Administration’s policy of not enforcing restrictions on

use of ships constructed with federal subsidies).

Other circuits have similarly held that Chaney

does not extend to “permanent policies or standards.”

Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir.

1996) (rejecting Secretary of Agriculture’s contention

that a policy of not enforcing a zero-tolerance standard

for contaminated poultry was unreviewable under

Chaney); see also Gulf Restoration Network v. McCarthy, 783 F.3d 227, 236 (5th Cir. 2015) (citing Crowley

and holding that EPA’s determination whether to

promulgate a “broadly applicable … policy” was not an

exercise of unreviewable enforcement discretion under Chaney); cf. Texas v. United States, 809 F.3d 134,

168 (5th Cir. 2015) (finding DHS’s action creating the

Deferred Action for Parents of Americans and Lawful

Permanent Residents program to be reviewable under

Chaney), aff’d by equally divided Court, 136 S. Ct.

2271 (2016).

The Second Circuit, in Riverkeeper, Inc. v. Collins,

359 F.3d 156, 167 (2004), also approvingly cited the

distinction drawn by Crowley between reviewable enforcement policies and unreviewable individual nonenforcement decisions. Riverkeeper was a challenge to

the failure of the Nuclear Regulatory Commission

(NRC) to require certain security measures as conditions on its licensing of a nuclear power plant. The

challenger argued that the NRC’s inaction was reviewable because it reflected a general policy of failing

to enforce adequate security requirements. The court

endorsed Crowley’s explanation of why Chaney does

not preclude review of an agency’s explicit adoption of

an enforcement policy, see id. (quoting Crowley, 37

14

F.3d at 677), but found that the NRC had not explicitly

“express[ed]” a “broad enforcement polic[y],” id. The

court then examined the record to see if it could discern a reviewable “policy not to protect adequately

public health and safety with respect to nuclear

plants,” id. at 168, and, finding no such policy, held

that Chaney precluded review of the agency’s failure

to take enforcement action in the case before it, id. at

170. Riverkeeper thus illustrates that the permissible

review of general policies that guide enforcement does

not encroach on the space occupied by Chaney.

Applying these principles, district courts, in the

nearly quarter-century since Crowley, have reviewed

agencies’ adoption of express enforcement policies in

the relatively infrequent cases where agencies take

such actions and face APA challenges. For example, in

WildEarth Guardians v. DOJ, 181 F. Supp. 3d 651,

665 (D. Ariz. 2015), the court cited Crowley in support

of its holding that Chaney did not bar review of the

Department of Justice’s formally expressed

“McKittrick policy” authorizing prosecutors to request

specific intent rather than general intent instructions

in certain cases.2 In Chiang v. Kempthorne, 503 F.

Supp. 2d 343, 351 (D.D.C. 2007), the court held that

guidelines limiting the time periods for which the government could seek to recover royalties from mineral

lessees constituted a reviewable general enforcement

policy rather than an unreviewable decision not to

take enforcement action under Chaney. And in Center

for Auto Safety, Inc. v. NHTSA, 342 F. Supp. 2d 1

––––––––––––––––––––––––

2 The Ninth Circuit ultimately vacated the district court’s

later decision granting summary judgment to the plaintiffs, for

lack of standing. WildEarth Guardians v. DOJ, 752 F. Appx. 421

(9th Cir. 2018). The court of appeals did not address Chaney.

15

(D.D.C. 2004), aff’d on other grounds, 452 F.3d 798

(D.C. Cir. 2006), the court held that Chaney was inapplicable to a challenge to an agency’s practice of enforcing auto recalls on a regional but not national basis because it was not a “single-shot non-enforcement

decision.” Id. at 12 (quoting Crowley, 37 F.3d at 676).

See also, e.g., Ringo v. Lombardi, 706 F. Supp. 2d 952

(W.D. Mo. 2010) (holding that Chaney does not preclude review of a general policy of nonenforcement of

the Controlled Substances Act with respect to lethalinjection drugs); Roane v. Holder, 607 F. Supp. 2d 216,

226–27 (D.D.C. 2009) (same). The cases illustrate that

the appellate decisions have set forth a workable

standard and that application of that standard has

neither displaced Chaney from its proper sphere nor

resulted in torrents of litigation.

The Department of Justice has also recognized the

well-established distinction between exercises of discretion to forgo an enforcement action and general enforcement policies that fall outside Chaney’s holding.

In its formal opinion concerning the lawfulness of deferred action programs for noncitizens unlawfully present in the United States, the Department’s Office of

Legal Counsel (OLC) extensively discussed Chaney

and the limitations of its holding. See OLC, The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in

the United States and to Defer Removal of Others (Nov.

19, 2014), 2014 WL 10788677.

OLC’s opinion stressed two points significant here.

First, OLC stated that agencies “ordinarily” may not

“‘consciously and expressly adopt[] a general policy’”

that abdicates statutory responsibilities. Id., 2014 WL

10788677, at *6 (quoting Chaney, 470 U.S. at 833 n.4).

Second, OLC recognized that “lower courts, following

16

Chaney, have indicated that non-enforcement decisions are most comfortably characterized as judicially

unreviewable exercises of enforcement discretion

when they are made on a case-by-case basis.” Id. OLC

cited both Crowley and Kenney for this proposition and

endorsed Crowley’s distinction between unreviewable

“single-shot non-enforcement decisions,” id. (quoting

Crowley, 37 F.3d at 676), and “general policies” that

pose risks that the agency “has exceeded the bounds

of its enforcement discretion,” id.

The government’s brief does not acknowledge the

extensive body of lower-court case law fleshing out

Chaney’s boundaries, or its own prior statements distinguishing reviewable general policies from unreviewable individual exercises of discretion not to take

enforcement action. Adopting the government’s current litigation position that its action rescinding

DACA falls within the scope of Chaney’s preclusion of

review of decisions not to initiate enforcement proceedings would eliminate this distinction, long recognized by courts and by the Justice Department itself.

IV. The government’s arguments for extending

Chaney are unconvincing.

The government’s justification for disregarding the

longstanding judicial view that Chaney does not extend to actions of the type at issue here rests largely

on an ipse dixit: The government asserts that “DHS’s

decision to discontinue the DACA policy is exactly the

type of agency decision that traditionally has been understood as unsuitable for judicial review and therefore ‘committed to agency discretion’ under Section

701(a)(2).” U.S. Br. 18–19. But the government cites

absolutely nothing to support its assertion that there

is a tradition that actions adopting general

17

enforcement policies are unreviewable. Neither

Chaney nor any of this Court’s other decisions invokes

such a tradition, and the government offers no examples from other courts and no citations to other authorities suggesting that the “common law” of judicial

review at the time of the APA’s enactment embodied

such a tradition. Instead, the government backs up its

statement only with the observation that if “the decision to adopt a policy of nonenforcement” is unreviewable, “the decision whether to retain such a policy”

should also be unreviewable. Id. at 19. That might be

so; but because the premise that decisions to adopt

nonenforcement policies are traditionally unreviewable is unsupported, the government’s syllogism does

nothing to advance its argument.

The government also insists that “Chaney itself

concerned the programmatic determination whether

to enforce the FDCA with respect to drugs used to administer the death penalty, not the particular circumstances of any individual case.” U.S. Br. 21–22. That

assertion, however, picks a quarrel with this Court’s

own description of the issue and holding in Chaney itself and in later opinions. As this Court explained in

Chaney, the case arose from a request by individuals

under sentences of death that the FDA initiate enforcement proceedings aimed at the manufacturers

and end users of the specific drugs to be used in their

executions. Those individuals then sought APA review

of the agency’s refusal to initiate the requested enforcement actions. See 470 U.S. at 823–25. Thus, the

Court did not treat the case as involving reviewability

of a general or “programmatic” action (a term not

found in the opinion), but considered instead whether

“an agency’s decision not to prosecute or enforce,” id.

at 831, is committed to agency discretion under the

18

APA. And, as explained above, see supra pp. 9–10, the

Court has consistently described Chaney as addressing decisions declining to initiate specific enforcement

proceedings, not as applying to actions adopting policies concerning enforcement.

To be sure, the agency’s decision in Chaney undoubtedly reflected broader legal and policy views, see

id. at 824—views that might have served as the basis

for a different type of action that would have been reviewable. But Chaney found that there were “good reasons” why one type of action—a decision not to initiate

an enforcement proceeding—was presumptively unsuitable for review, id. at 832, even if that action

rested in part on legal or policy grounds that could be

reviewed in the context of a different type of action. As

the government itself points out, this Court has “held

that agency actions falling within a tradition of nonreviewability do not become reviewable just because

the agency gives a reviewable reason” for those actions. U.S. Br. 23 (internal quotation marks and

brackets omitted; citing ICC v. B’hood of Locomotive

Eng’rs, 482 U.S. 270, 282–83 (1987)). By the same token, reviewable action, such as the promulgation of a

generally applicable policy, does not become unreviewable merely because an individual decision to

forgo enforcement might also be based on the same

“programmatic” reasons.

The government’s observations that enforcement

priorities “are, if anything, more susceptible to implementation though broad guidance than through caseby-case enforcement decisions,” and that such guidance helps “avoid arbitrariness and ensure consistency,” U.S. Br. 22 (citations omitted), do nothing to

support its contention that Chaney should be extended

to shield such actions from review. That there are

19

advantages for agencies to proceeding through general policies rather than case-by-case decisionmaking

is hardly a reason to forgo review of the lawfulness

and rationality of such policies. Indeed, the very features of general enforcement policies that render them

effective as a means of ordering agency priorities and

conforming them to statutory commands and purposes also make them suitable for judicial review,

which in turn serves to further the desired goal of

avoiding arbitrary agency action.

The government suggests that review is unwarranted here because actions promulgating general enforcement policies can only be reviewable if they involve a specific “statutory directive” that circumscribes agency enforcement discretion, U.S. Br. 19, or

an “interpretation of particular substantive provisions” of a statute, id. at 25. As explained above, this

argument is unsupported by the Court’s opinion in

Chaney. Moreover, questions of statutory authorization are directly implicated by the action rescinding

DACA, which is based on the assertion that DACA violated substantive commands of federal immigration

statutes. Indeed, the government’s current claim that

its action was justified by a litigation risk that DACA

could be held unlawful as a violation of statutory commands assumes that the promulgation of DACA was a

reviewable action rather than an unreviewable exercise of discretion not to initiate a particular enforcement proceeding. If that is so, DACA’s rescission is

likewise reviewable.

In addition, as the D.C. Circuit explained in Crowley, the fact that actions promulgating general enforcement policies often involve direct interpretations

of statutes is only one of the reasons that such actions

are reviewable. Thus, Crowley observed that actions

20

promulgating enforcement policies are “more likely”

than individual enforcement decisions to involve interpretation of express statutory commands, not that

they necessarily involve such interpretation. 37 F.3d

at 676–77. Such a statement about the generic characteristics of general policies that help make them

suitable for review by no means suggests that a policy

must share each such characteristic to render it reviewable.

Crowley also pointed to other features of general

policies that distinguish them from decisions not to initiate specific enforcement actions and make them

suitable for judicial review—in particular, that the

promulgation of general rules and policies, unlike an

individual nonenforcement decision, typically involves

formal explanation of the agency’s reasons for acting.

Crowley, 37 F.3d at 677. That consideration is present

here and confirms the reviewability of the action rescinding DACA against the standards of reasoned explanation that apply under the APA when an agency

abruptly changes its course. See, e.g., Motor Vehicle

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29 (1983); FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).

Finally, the government’s passing suggestion that

APA review of actions promulgating enforcement policies implicates separation-of-powers concerns, U.S.

Br. 19, is baseless. Exempting an agency’s exercise of

authority delegated by Congress from judicial review

is not a matter of constitutional imperative, but of congressional choice—which is itself constrained by constitutional principles that in some cases require review. See Webster, 486 U.S. at 603; INS v. St. Cyr, 533

U.S. 289, 308–08 (2001). Thus, Chaney recognized

that even the actions it found to be presumptively

21

unreviewable—agency decisions not to initiate enforcement actions—are reviewable when Congress so

commands. 470 U.S. at 832–33. “Congress may limit

an agency’s exercise of enforcement power if it

wishes.” Id. at 833. Likewise, in FEC v. Akins, this

Court brushed aside any suggestion that agency enforcement discretion must remain unreviewable even

when Congress has authorized review. See 524 U.S. at

26. Indeed, statutorily authorized judicial review of

the lawfulness of agency action serves rather than undermines separation-of-powers values. See Bowen,

476 U.S. at 670. Here, where the action at issue falls

outside the APA’s limited exception to the presumptive availability of review, separation-of-powers concerns provide no basis for denying review.3

In sum, accepting the government’s view that its

adoption or rescission of broad policies governing its

administration of the immigration laws is unreviewable would substantially expand the reach of Chaney,

conflict with its reasoning and that of other decisions

of this Court, and upend decades of case law applying

Chaney. The Court accordingly should reject the government’s contention that its rescission of DACA is

unreviewable.

CONCLUSION

This Court should affirm the decisions of the courts

below.

––––––––––––––––––––––––

3 The government’s suggestions in the lower courts (not re-

peated in its brief in this Court) that its Chaney arguments are

about “justiciability” are also baseless. Section 702(a)(1)’s preclusion of review of actions “committed to agency discretion by law”

is a limit on the APA right of action, not on the jurisdiction of the

federal courts. See Air Courier Conf. of Am. v. Am. Postal Workers

Union, 498 U.S. 517, 523 n.3 (1991).

22

Respectfully submitted,

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

October 2019

Attorneys for Amici Curiae