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.

____________________

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

____________________

BRIEF OF AMICI CURIAE 109 CITIES,

COUNTIES, MUNICIPALITIES, AND LOCAL

GOVERNMENT ADVOCACY ORGANIZATIONS

IN SUPPORT OF RESPONDENTS

____________________

MICHAEL N. FEUER

City Attorney

JAMES P. CLARK

VALERIE L. FLORES

DANIELLE GOLDSTEIN

MICHAEL DUNDAS

Counsel of Record

200 N. Main Street

Los Angeles, CA 90012

(213) 978-8100

mike.dundas@lacity.org

MARGARET L. CARTER

DANIEL R. SUVOR

DIMITRI D. PORTNOI

DANIEL J. TULLY

O’MELVENY & MYERS LLP

400 South Hope Street

18th Floor

Los Angeles, CA 90071

(213) 430-6000

Counsel for Amicus Curiae Counsel for Amicus Curiae

City of Los Angeles, Calif.

County of Los Angeles, Calif.

[Additional Captions Listed On Inside Cover]

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL.,

Petitioners,

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, ET AL.,

Respondents.

____________________

On Writ of Certiorari Before Judgment to the

United States Court of Appeals

for the District of Columbia Circuit

____________________

KEVIN K. MCALEENAN, ACTING SECRETARY OF

HOMELAND SECURITY, ET AL.,

Petitioners,

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.,

Respondents.

____________________

On Writ of Certiorari Before Judgment to the

United States Court of Appeals

for the Second Circuit

____________________

i

QUESTIONS PRESENTED

In 2012, the Secretary of Homeland Security announced a policy that would provide a temporary

forbearance of removal for certain undocumented

immigrants who unwittingly entered the United

States as children. Known as Deferred Action for

Childhood Arrivals (DACA), the program allows such

noncitizens to receive a renewable two-year term of

deferred action—a form of prosecutorial discretion

whereby the government declines to pursue removal—if they have no criminal record and satisfy various educational or military service requirements.

Under longstanding federal regulations, any person

subject to deferred action, including DACA recipients, may apply for government work authorization.

In the seven years since DACA was implemented,

more than 800,000 young people throughout the

country have applied for and received deferred action. In September 2017, the Department of Homeland Security (DHS) announced that it would rescind

DACA because it believed the program was unlawful

and would likely be struck down by the courts.

The questions presented are:

1. Whether DHS’s decision to rescind DACA is

judicially reviewable.

2. Whether DHS’s decision to rescind DACA is

unlawful.

ii

TABLE OF CONTENTS

Page(s)

STATEMENT OF INTEREST .................................. 1

INTRODUCTION ..................................................... 4

ARGUMENT ............................................................. 6

I.

DACA Recipients Represent the

Best of Amici’s Communities. ............. 6

II.

Rescinding DACA Harms Amici’s

Young People and Communities. ...... 10

A. Rescinding DACA Will Harm the

Economy. ............................................ 11

B. Rescinding DACA Will

Undermine Amici’s Public Safety

Priorities. ........................................... 14

III.

Petitioners’ Purported Rescission

of DACA is Unlawful. ........................ 16

A. Petitioners Did Not Adequately

Consider the Harm of Repealing

DACA. ................................................ 18

B. Post-Hoc Rationalizations Do Not

Insulate Petitioners’ Decision

From Review or Render it

Lawful. ............................................... 26

CONCLUSION ........................................................ 38

APPENDIX ............................................................. 1a

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Block v. Cmty. Nutrition Inst.,

467 U.S. 340 (1984) ............................................ 33

Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667 (1986) ............................................ 28

Camp v. Pitts,

411 U.S. 138 (1973) .................................33, 35, 37

Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) ...........................24, 28, 32, 35

Encino Motorcars, LLC v. Navarro,

136 S. Ct. 2117 (2016)................................. passim

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ...........................18, 20, 22, 25

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ............................................ 36

Food Mktg. Inst. v. ICC,

587 F.2d 1285 (D.C. Cir. 1978) .....................34, 37

Franklin v. Massachusetts,

505 U.S. 788 (1992) ............................................ 33

Heckler v. Chaney,

470 U.S. 821 (1985) .......................................28, 29

Hilton v. S.C. Pub. Rys. Comm’n,

502 U.S. 197 (1991) ............................................ 25

ICC v. Bhd. of Locomotive Eng’rs,

482 U.S. 270 (1987) ............................................ 31

Judulang v. Holder,

565 U.S. 42 (2011) .........................................18, 27

Landgraf v. USI Film Prods.,

511 U.S. 244 (1994) ............................................ 25

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Michigan v. EPA,

135 S. Ct. 2699 (2015)...................................18, 27

Mont. Air Chapter No. 29 v. Fed. Labor

Relations Auth.,

898 F.2d 753 (9th Cir. 1990).............................. 30

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

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ...................................18, 20, 35

Nat’l Lifeline Ass’n v. FCC,

921 F.3d 1102 (D.C. Cir. 2019) .......................... 25

OSG Bulk Ships, Inc. v. United States,

132 F.3d 808 (D.C. Cir. 1998) ............................ 30

Pension Benefit Guar. Corp. v. LTV Corp.,

496 U.S. 633 (1990) .................................32, 34, 35

Perez v. Mortg. Bankers Ass’n,

135 S. Ct. 1199 (2015)...................................22, 24

SEC v. Chenery Corp.,

318 U.S. 80 (1943) .............................27, 33, 34, 37

Smiley v. Citibank (S.D.), N.A.,

517 U.S. 735 (1996) ............................................ 25

Texas v. United States,

809 F.3d 134 (5th Cir. 2015).............................. 19

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) ............................................ 36

STATUTES

5 U.S.C. § 601 .......................................................... 22

5 U.S.C. § 603 .......................................................... 22

5 U.S.C. § 604 .......................................................... 22

5 U.S.C. § 701 .......................................................... 28

v

TABLE OF AUTHORITIES

(continued)

Page(s)

8 U.S.C. § 1324a ...................................................... 37

REGULATIONS

8 C.F.R. § 274.12 ..................................................... 37

RULES

Sup. Ct. R. 37.3(a) ..................................................... 1

Sup. Ct. R. 37.6 ......................................................... 1

OTHER AUTHORITIES

Alex Nowrasteh, Don’t End DACA: The

Immigration Program Trump Must

Save, N.Y. Post (Aug. 31, 2017) ......................... 11

Barry Moreno, Children of Ellis Island

(2005) .................................................................... 4

George White, Teachers Who Are DACA

Recipients Help Ease Anxiety of

Undocumented Students, EdSource

(Sept. 15, 2017) .................................................... 9

Gregory Korte, et al., Trump

Administration Struggles with Fate

of 900 DREAMers Serving in the

Military, USA Today (Sept. 7, 2017) ................... 8

John Burnett, New Immigration

Crackdowns Creating ‘Chilling

Effect’ on Crime Reporting, Nat’l

Pub. Radio (May 25, 2017) ................................ 14

Julia Wick, L.A.-Area DACA Recipients

Contribute Approximately $5.5 Billion

Annually to Economy, Chamber

Estimates, LAist (Sept. 21, 2017) ...................... 11

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

L.A. County Sheriff Jim McDonnell’s

Statement About Senate Bill 54

Regarding Immigration, The Signal

(Sept. 16, 2017) .................................................. 15

Michelangelo Landgrave & Alex

Nowrasteh, The DREAMer

Incarceration Rate, Cato Institute

(Aug. 30, 2017) ................................................... 15

Nik Theodore, Dep’t of Urban Planning &

Policy, Univ. of Ill. at Chi., Insecure

Communities: Latino Perceptions of

Police Involvement in Immigration

Enforcement (2013) ........................................... 15

Office of the Press Sec’y, Remarks by

the President on Immigration (June

15, 2012) ............................................................. 21

Randy Capps et al., Migration Policy

Inst., Delegation and Divergence: A

Study of 287(g) State and Local

Immigration Enforcement (2011)...................... 15

Roberto G. Gonzales & Angie M.

Bautista-Chavez, Am. Immigration

Council, Two Years and Counting:

Assessing the Growing Power of

DACA (June 2014) ............................................. 10

Samantha Schmidt, A ‘Dreamer’ Dies

Trying to Save Harvey Victims, Days

Before Trump Plans to End DACA,

Wash. Post (Sept. 5, 2017) ................................. 10

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Scott R. Baker, Effects of Immigrant

Legalization on Crime: The 1986

Immigration Reform and Control

Act, Stanford Law and Econ. Olin

Working Paper (July 28, 2014).......................... 14

Silva Mathema, Ending DACA Will

Cost States Billions of Dollars, Ctr.

for Am. Progress (Jan. 9, 2017) ......................... 12

State & Local Tax Contributions of

Young Undocumented Immigrants,

Inst. on Taxation & Econ. Policy

(Apr. 30, 2018).................................................... 11

Tom K. Wong et al., DACA Recipients’

Economic and Educational Gains

Continue to Grow, Ctr. for Am.

Progress (Aug. 28, 2017) ................................ 2, 12

Tom K. Wong et al., Results from Tom

K. Wong et al., 2017 National DACA

Study (2017) ................................................... 7, 10

U.S. Dep’t of Homeland Sec., Letter by

Secretary Jeh Johnson to U.S.

Representative Judy Chu (Dec. 30,

2016) ................................................................... 21

U.S. Dep’t of Homeland Sec.,

Memorandum from Secretary Janet

Napolitano on Exercising

Prosecutorial Discretion with

Respect to Individuals Who Came to

the United States as Children (June

15, 2012) ............................................................. 21

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. Dep’t of Homeland Sec., Secretary

Napolitano Announces Deferred

Action Process for Young People

Who Are Low Enforcement

Priorities (June 15, 2012) .................................... 7

U.S. Dep’t of Justice, Attorney General

Sessions Delivers Remarks on

DACA (Sept. 5, 2017) ......................................... 14

STATEMENT OF INTEREST1

Amici Curiae are 109 cities, towns, counties, and

municipal organizations.2 Amici come from every

corner of the country: from rural farming communities to industrial cities to large, urban metropolises.

Amici represent a broad, bi-partisan cross-section of

American cities and counties with a wide spectrum

of economic, political, and cultural perspectives.

They include the most populous and diverse cities

and counties in the United States, as well as jurisdictions of more modest size. Individuals of every

race, ethnicity, culture, and creed call amici home.

1 The parties have consented in writing to the filing of this

brief, and their letters of consent have been filed with the

Clerk. See Sup. Ct. R. 37.3(a). No party’s counsel authored

this brief in whole or in part, and no person or entity other than

amici or their counsel made a monetary contribution intended

to fund the preparation or submission of this brief. See Sup. Ct.

R. 37.6.

2 A complete list of amici is provided as Appendix A.

Amici include four non-partisan advocacy organizations charged

with representing the interests of the nation’s cities, towns, and

villages. The National League of Cities advocates for 19,000

cities, towns, and villages, representing more than 218 million

Americans. The United States Conference of Mayors represents the country’s 1,408 cities with populations of over 30,000.

The International Municipal Lawyers Association is a professional organization consisting of more than 2,500 local government member entities represented by their chief legal officers,

state municipal leagues, and individual attorneys. The International City/County Management Association is an association of 12,000 city, town, and county managers who oversee the

daily operations of the local governments they serve.

2

Though important differences exist between

them, amici share a common interest in building

communities where all residents, regardless of immigration status, feel safe and empowered to participate in civic life. At their core, local governments

exist to provide for the health (e.g., public hospitals),

safety (e.g., police departments and county sheriffs),

and welfare (e.g., social services agencies) of their

residents. The Deferred Action for Childhood Arrivals (DACA) program directly benefits the health,

safety and welfare of all of our residents, by encouraging DACA recipients to openly participate in their

communities and interact with local government

without fear.

Before the program was instituted, many DACA

recipients feared the basic tasks of everyday life, like

going to work, attending school and church, or simply buying groceries. Many recipients with American

citizen children3 stuck Post-it notes to their refrigerators before they left for the day, instructing their

children whom to call in case “Mom and Dad” did not

come home. These fears are precisely why DACA

was created: to both focus limited immigration enforcement resources on the removal of serious criminals and to enable young people to contribute to

their communities.

3 A 2017 study by the Center for American Progress found

that 25% of DACA recipients have at least one child who is an

American citizen. Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue to Grow, Ctr. for Am.

Progress (Aug. 28, 2017), https://perma.cc/JT3D-6TVR.

3

Amici will suffer substantial harm if DACA is

terminated. More than 12% of all active DACA recipients live in the Los Angeles metro area alone.4

Another 22% reside in the New York, Dallas, Chicago, or Houston metro regions, while 10% of recipients currently make their homes in Phoenix, Atlanta, the San Francisco Bay area, San Diego, or Denver.5 All told, 60% of current DACA recipients—

nearly 400,000 individuals—live in amici’s communities.6

These individuals—most of whom arrived in the

United States as children—are no different than the

tens of millions of people who live and work alongside them in amici’s cities and counties. DACA recipients have made enormous contributions to our

communities and to our country. They attend our

local schools where they study to become our newest

doctors, nurses, and lawyers. As entrepreneurs,

they build businesses that revitalize local economies.

As teachers, they shape the next generation of leaders. As civil servants, they assist and transform the

communities that they call home. Without deferred

action, none of these contributions would be possible.

4 Figures are based on recipients’ residency in a Core Based

Statistical Area, as defined by the U.S. Office of Management

and Budget, at the time of their most recent DACA application.

See Regents of the Univ. of Cal. v. Dep’t of Homeland Sec.,

No. 3:17-cv-05211-WHA, Dkt. 292-2, U.S. Citizenship and Immigration Services DACA Data as of September 30, 2019 (N.D.

Cal. Oct. 1, 2019).

5 Id.

6 Id.

4

Amici are stronger and safer because of the DACA

program.

As history teaches, our collective success depends

on the contributions of all members of society. Our

nation’s and amici’s civic, cultural, and economic

prosperity in the 20th Century was aided in no small

part by the contributions of immigrants, many of

whom arrived in the United States as children.7 And

our future progress is tied to the full participation of

such individuals, including the 800,000 young people

who have received deferred action under the DACA

program. The rescission of DACA jeopardizes amici’s interests by harming tens of thousands of DACA

recipients in amici’s communities.

INTRODUCTION

Each day, more than 650,000 DACA recipients

work to make the world a better place. They are educators, administrators, social workers, firefighters,

police officers, soldiers, scientists, engineers, entrepreneurs, artists, journalists, service workers, and

civic leaders. They make their communities—our

communities—safe and prosperous.

Since its inception, DACA has allowed more than

800,000 hardworking individuals to reach their full

potential. The program, which reduces recipients’

fear of removal and allows them the opportunity to

work for renewable two-year terms, has empowered

recipients to participate fully in their communities.

These individuals are as much part of the American

7 See Barry Moreno, Children of Ellis Island (2005).

5

fabric that binds us together as are their neighbors

with lawful immigration status.

The rescission of DACA in the Department of

Homeland Security’s (DHS) September 5, 2017

Memorandum (September Memorandum) tears at

that fabric. Petitioners’ decision to rescind DACA is

a violation of trust that forces hundreds of thousands

of participants back into lives of fear. Keeping talented young people at the margins threatens to rob

amici and the nation of their promise. It is anathema to amici, as it undermines their shared interest

in empowering all residents to participate in public

life. Amici therefore request that the Court affirm

the judgments of the Ninth Circuit and the District

Court for the District of Columbia, and the orders of

the Eastern District of New York.

Amici submit this brief to inform the Court of the

profound impact that DACA recipients have had on

amici and to highlight the consequences that rescission of DACA will have on amici, our communities,

and our residents. Amici also write to address two

discrete legal issues—Petitioners’ failure to adequately consider reliance interests in the September

Memorandum, and Petitioners’ attempted post-hoc

rationalization of their decision to rescind DACA.

Given the significant harm to amici and their residents from the rescission, Petitioners’ failure to analyze participants’ reliance interests and the harm to

society at large is alarmingly inadequate. Their attempt to use after-the-fact explanations to prevent

the courts from redressing these harms is equally

deficient, and was correctly rejected by the courts

below.

6

As all amici recognize, our shared future is

brighter when opportunities for success are available

to all people, regardless of their race, ethnicity, gender, or immigration status. DACA recipients have

used these opportunities for seven years to strengthen amici’s communities, and should not now have

those opportunities taken from them. And their

neighbors, coworkers, employers, and local governments should not be denied the countless contributions that DACA recipients have made and will continue to make to our country.

ARGUMENT

I.

DACA Recipients Represent the Best of

Amici’s Communities.

When DACA was first announced, then-DHS Secretary Janet Napolitano and current President of

Respondent University of California, explained:

Our nation’s immigration laws must

be enforced in a firm and sensible

manner. But they are not designed to

be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young

people to countries where they may

not have lived or even speak the language. Discretion, which is used in so

7

many other areas, is especially justified here.8

Amici agree: our best interests are advanced by

educating and empowering our next generation of

leaders, not by tearing students out of their schools

and uprooting industrious individuals from their

communities. For the last seven years, DACA has

advanced our best interests, and amici have witnessed hundreds of thousands of young people

emerge from the margins to lead productive, exemplary lives.

DACA has allowed recipients to pursue higher

education, enhancing their economic productivity

and enriching their lives and futures.9

For example, Jin Kyu Park arrived in New York

City at the age of seven from South Korea. He excelled in his studies and matriculated at Harvard.

As an undergraduate in Cambridge, Jin Kyu worked

as a research assistant at the Koch Institute for Integrative Cancer Research at MIT, served as the

managing editor of the Harvard Undergraduate Research Journal, directed the Phillips Brooks House

Association’s Chinatown Citizenship program, and

founded a nonprofit to help other undocumented

8 Dep’t of Homeland Sec., Secretary Napolitano Announces

Deferred Action Process for Young People Who Are Low Enforcement Priorities (June 15, 2012), https://perma.cc/94JC2293.

Tom K. Wong et al., Results from Tom K. Wong et al.,

2017 National DACA Study 3 (2017), https://perma.cc/R2J8D57W.

9

8

students. Last November, he became the first DACA

recipient ever to become a Rhodes Scholar. After

completing his studies at Oxford, Jin Kyu plans to

become a doctor so that he can serve immigrant

communities like the one where he grew up in

Queens.

Many recipients share similar stories. DACA allowed Nelson Magdaleno, who was brought to the

United States from Venezuela as a child, to attend

Georgia Tech University, one of the nation’s top engineering schools. Nelson graduated with honors

and has been working in Dallas as an engineer at

Texas Instruments since his graduation. Herta

Llusho arrived in Detroit from Albania at the age of

eleven. She worked tirelessly through high school

and college, ultimately receiving a Master’s Degree

in robotics and automation engineering. Herta now

works as a supervising engineer at Ford Motor Company, and regularly volunteers at her church and in

her community.

Armed with their high school degrees, college degrees, and the other building blocks of modern life,

recipients have gone on to strengthen their communities by dedicating themselves to them. Hundreds

have protected our country by serving in the military

as part of a Pentagon pilot program.10 Thousands of

recipients, like Chicagoan Cynthia Sanchez and Aus-

Gregory Korte, et al., Trump Administration Struggles

with Fate of 900 DREAMers Serving in the Military, USA Today (Sept. 7, 2017), https://perma.cc/EH4W-2DSL.

10

9

tinite Karen Reyes, have taken up teaching, often in

underserved communities of color.11

Others have made lasting impacts in the arts.

Yehimi Cambrón, an art teacher and artist from Atlanta, paints murals with imagery that evoke survival, opportunity, and other common themes of the

immigrant experience. In the classroom, she teaches

her high school students how to find expression and

empowerment in art. Last year, the Atlanta Superbowl LIII Host Committee commissioned Yehimi to

create three murals that highlight Atlanta’s civil

rights and social justice journey, a commission that

would not have been possible without DACA.

Bambadjan Bamba grew up in the South Bronx,

worked to put himself through drama school, and

now is a successful actor, appearing on NBC’s The

Good Place, and in Disney’s Black Panther. Daniela

Pierre-Bravo arrived in the United States from Chile

at age 11. Today, she is a news producer for MSNBC

and NBCUniversal in New York City and recently

released a non-fiction motivational book with bestselling author Mika Brzezinski.

Still others have made their mark through selfless sacrifice. In times of need or sorrow, congreSee George White, Teachers Who Are DACA Recipients

Help Ease Anxiety of Undocumented Students, EdSource (Sept.

15, 2017), https://perma.cc/PPJ2-KR3P. Although the exact

number of DACA recipients employed as teachers is unknown,

the Migration Policy Institute estimates that 20,000 “DACAeligible” individuals are teachers, although some may have attained lawful status by other means. Id.

11

10

gants turn to the guidance of DACA-recipient Father

Rey Pineda, a Catholic priest at Atlanta’s Cathedral

of Christ the King. When emergencies have threatened families, friends, and neighbors, DACA recipients have been among the first to answer the call.

During Hurricane Harvey, Houston-area paramedic

Jesus Contreras worked six straight days to rescue

people from the storm. One DACA recipient, Alonso

Guillén, was killed while trying to save fellow Texans from perishing in rising floodwaters.12

These stories and countless others highlight the

lasting impact that the DACA program has had on

recipients and on society at large. As amici look to

the future, we cannot afford to let some of our best

and brightest go.

II. Rescinding DACA Harms Amici’s Young

People and Communities.

DACA has allowed recipients to live without fear

and to better contribute to amici’s communities. It

has drastically improved recipients’ lives, allowing

them to obtain better jobs, more education, and improved access to vital services—like healthcare and

driver’s licenses13—which allow them to better contribute to society. Petitioners’ decision to rescind

12 Samantha Schmidt, A ‘Dreamer’ Dies Trying to Save

Harvey Victims, Days Before Trump Plans to End DACA, Wash.

Post (Sept. 5, 2017), https://perma.cc/YT2Q-9H7P.

13 Roberto G. Gonzales & Angie M. Bautista-Chavez, Am.

Immigration Council, Two Years and Counting: Assessing the

Growing Power of DACA 9 (June 2014), https://perma.cc/K4RB327Q; Wong, supra note 9.

11

DACA wrests from these young people the protections that have allowed them to better their communities. It will also directly harm amici, particularly

their economies and public safety programs, which

benefit from the open participation of nearly 400,000

resident recipients.

A. Rescinding DACA Will Harm the Economy.

DACA recipients help drive amici’s economies. In

Los Angeles alone, they are responsible for approximately $5.5 billion of the annual GDP.14 Nationally,

DACA recipients pay an estimated $1.7 billion in

state and local taxes every year that go to fund critical programs administered by amici.15

DACA’s nationwide impact has been substantial.

Adding DACA recipients to the workforce has generated roughly $30 billion in new earnings, which, according to an op-ed from an analyst at the Cato Institute, “ha[d] a job-creating ripple effect on the

economy.”16 Recipients have made profound economic gains because of the DACA program. They have

entered the work force, purchased their first homes,

Julia Wick, L.A.-Area DACA Recipients Contribute Approximately $5.5 Billion Annually to Economy, Chamber Estimates, LAist (Sept. 21, 2017), https://perma.cc/9VDJ-HEDB.

14

15 State & Local Tax Contributions of Young Undocumented

Immigrants, Inst. on Taxation & Econ. Policy (Apr. 30, 2018),

https://perma.cc/WKL6-U2HJ.

16 Alex Nowrasteh, Don’t End DACA: The Immigration Pro-

gram Trump Must Save,

https://perma.cc/9LYT-8895.

N.Y.

Post

(Aug.

31,

2017),

12

and built businesses that have revitalized their

communities. According to one representative survey, 69% of employed DACA recipients moved to a

higher-paying job while receiving deferred action,

and 5% of recipients started a new business, a rate of

entrepreneurship greater than among the general

public.17 The same survey indicated that 50% of

surveyed DACA recipients reported that they have

bought a car since receiving deferred action and 12%

have bought their first home, both of which are major economic drivers.18 Over the next decade, these

workers and business owners are estimated to contribute more than $433 billion to the national GDP.19

DHS’s decision to rescind DACA will thus have a

clear deleterious effect on amici and the nation as a

whole. One story illustrates what is at stake for

DACA recipients and amici.

Angelica Hernandez came to the United States at

the age of nine with her mother. Growing up in

Phoenix, she fell in love with robotics. While attending Carl Hayden High School, Angelica was a member of a team of undocumented students that won a

national underwater robotics competition, besting

teams from other high schools and from elite engineering universities like MIT. Angelica’s passion for

robotics led her to Arizona State University, where

17 Wong, supra note 3.

18 Id.

19 Silva Mathema, Ending DACA Will Cost States Billions

of Dollars, Ctr. for Am.

https://perma.cc/7NSZ-Y2L7.

Progress

(Jan.

9,

2017),

13

she graduated summa cum laude, and then to Stanford, where she received a Master’s Degree in Civil

and Environmental Engineering. Today she works

as an engineer on clean energy and energy efficiency

programs at Nexant, an energy company in the

Phoenix area.

Because of DACA, Angelica was able to discover a

passion and pursue her dream career. But Angelica’s other teammates were each too old to qualify for

DACA. Of the Carl Hayden students, only Angelica

works as an engineer. Contrast their story with

those of the members of the MIT student team they

defeated in competition. A decade after the competition, three of the four MIT team members had gone

onto successful careers in underwater robotics, with

one working on a project in Antarctica, while the

fourth MIT team member was working in product

design for Apple, Inc.

At a time when our country is facing a shortage of

professionals in science, technology, engineering,

and mathematics (STEM) fields, programs like

DACA give certainty to young people who should not

be enforcement priorities, enabling more of them to

pursue passions that leave amici and the nation

stronger. Petitioners’ rescission of DACA denies

hundreds of thousands of recipients the opportunity

to pursue their dreams and deprives amici of these

young people’s promise.

14

B. Rescinding DACA Will Undermine Amici’s Public Safety Priorities.

DACA has helped make amici’s communities safer because recipients are able to cooperate more

freely and effectively with law enforcement.

When undocumented individuals fear interacting

with law enforcement, it makes communities less

safe and officers’ jobs more difficult. Law enforcement agencies report that, as immigration enforcement and the threat of deportation increase, undocumented immigrants are substantially less likely to

report crimes, including violent crimes.20 One study

estimates that granting legal status to 1% of undocumented immigrants in a county can lower crime

rates there by 2 to 6%.21 Although then-Attorney

General Sessions insinuated that DACA had “put

our nation at risk of crime, violence and even terrorism,”22 the facts show just the opposite.23

John Burnett, New Immigration Crackdowns Creating

‘Chilling Effect’ on Crime Reporting, Nat’l Pub. Radio (May 25,

2017), https://perma.cc/3VJ3-Q8NK.

20

21 Scott R. Baker, Effects of Immigrant Legalization on

Crime: The 1986 Immigration Reform and Control Act, Stanford Law and Econ. Olin Working Paper, at 25 (July 28, 2014),

https://perma.cc/G5WH-4EX3.

22 U.S. Dep’t of Justice, Attorney General Sessions Delivers

Remarks on DACA (Sept. 5, 2017), https://perma.cc/482G5JEA.

23 One study by the Cato Institute reported that only 0.25%

of DACA recipients have been expelled from the program for

criminal activity and that DACA recipients’ native-born counterparts were 14% more likely to be incarcerated. See Michel-

15

Community policing strategies in amici cities and

counties call for trust and engagement between law

enforcement and the people they protect.

As

Los Angeles County’s then-Sheriff put it shortly after Petitioners announced the September Memorandum, “Public safety is our mission. This requires

that people come forward if they are a crime victim

or be willing to come forth as a witness to a crime

without fear of being deported. When I say that public trust is our currency, I mean it.”24

Amici have prudently considered and created data-driven law enforcement policies to enhance trust

with immigrant communities. That trust is undermined when residents fear interaction with the police, and law enforcement suffers as a result. Extensive evidence shows that undocumented immigrants—and their lawfully present family and

neighbors—fear that turning to the police will bring

adverse immigration consequences, and thus are less

likely to report crimes.25 DACA has promoted comangelo Landgrave & Alex Nowrasteh, The DREAMer Incarceration

Rate,

Cato

Institute

(Aug.

30,

2017),

https://perma.cc/HJA9-L6LP.

L.A. County Sheriff Jim McDonnell’s Statement About

Senate Bill 54 Regarding Immigration, The Signal (Sept. 16,

2017), https://perma.cc/XF4Y-DJXT.

24

25 See, e.g., Nik Theodore, Dep’t of Urban Planning & Policy, Univ. of Ill. at Chi., Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement 5‒6

(2013), https://perma.cc/4B5R-7JL4 (finding that 67% of undocumented individuals are less likely to offer information to law

enforcement as a witness and 70% are less likely to contact law

enforcement even if they were victims of a crime); Randy Capps

16

munity policing and furthered amici’s efforts to ensure that deferred action recipients and their families and neighbors are less vulnerable to crime and

exploitation. The rescission of DACA will undermine

these crucial efforts, making amici’s communities

less safe for their tens of millions of residents.

III. Petitioners’ Purported Rescission of DACA

is Unlawful.

Petitioners’ decision to rescind DACA was both a

grave policy error and unambiguously unlawful. As

each of the courts below correctly concluded, Petitioners acted arbitrarily and capriciously in violation

of the Administrative Procedure Act (APA) when

they abruptly ended DACA based on a cursory, dubious analysis of the program’s legality. See Regents

Pet. Supp. App. 1a‒87a; NAACP Pet. App. 1a‒74a;

Batalla Vidal Pet. App. 62a‒129a. Respondents

deftly address Petitioners’ arguments in their briefs,

see Regents Resp. Br. 30‒55; DACA Recipient Resp.

Br. 29‒59; State of Cal. Resp. Br. 23‒55; State of

N.Y. Resp. Br. 30‒53; D.C. Resp. Br. 34‒61, and amici will not repeat them here.

et al., Migration Policy Inst., Delegation and Divergence: A

Study of 287(g) State and Local Immigration Enforcement 43

(2011), https://perma.cc/T3PR-X4LG (finding in multiple counties that increased local-federal law enforcement cooperation

meant “community respondents were likely to report that immigrants were venturing into public places with less frequency,

failing to report crimes or interact with police, interacting less

with schools and other institutions, patronizing local businesses less often, and changing their driving patterns”).

17

Amici instead address two discrete legal issues

that are of particular significance to them because of

the substantial effects that the rescission of DACA

will have on amici and their millions of residents.

First, when they decided to rescind DACA, Petitioners did not adequately consider the effects of rescission or the legitimate reliance interests engendered by the DACA program, as they were required

to do under the Court’s precedent. DACA recipients

irrevocably rearranged their lives in reliance on deferred action, funding college educations, signing

mortgages, enrolling in the military, and starting

families. These acts were not just the foreseeable

effects of DACA; they were exactly what the program

was designed to induce. Petitioners also failed to

consider that the hasty decision to rescind DACA

will have consequences that reach far beyond DACA

recipients to harm amici’s economies and communities.

Second, the courts below properly rejected Petitioners’ post-hoc attempt in the June 22, 2018 memorandum from then-Secretary Kirstjen M. Nielsen

(Nielsen Memorandum) to save the arbitrary and

capricious decision announced in the September

Memorandum. Although courts have, in limited circumstances, permitted an agency to provide a fuller

explanation of the agency’s stated rationale after the

fact, an agency may not offer new and shifting rationales. The Court should not countenance Petitioners’ effort to avoid judicial review and accountability by manufacturing new reasons for the rescission that were not stated in the September Memorandum.

18

A. Petitioners Did Not Adequately Consider

the Harm of Repealing DACA.

“Federal administrative agencies are required to

engage in ‘reasoned decisionmaking.’” Michigan v.

EPA, 135 S. Ct. 2699, 2706 (2015) (quotation omitted). An agency “must examine the relevant data

and articulate a satisfactory explanation for its action including a rational connection between the

facts found and the choice made.” Motor Vehicle

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

Ins. Co., 463 U.S. 29, 43 (1983) (quotation omitted).26

When an agency seeks to depart from prior policy, it

must “demonstrate that the new policy rests upon

principles that are rational, neutral, and in accord

with the agency’s proper understanding of its authority.” FCC v. Fox Television Stations, Inc., 556

U.S. 502, 536 (2009) (Kennedy, J., concurring in

part). “In explaining its changed position, an agency

must also be cognizant that longstanding policies

may have engendered serious reliance interests that

must be taken into account.” Encino Motorcars, LLC

v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quoting Fox

Television, 556 U.S. at 515). Petitioners’ explanation

for rescinding DACA fails to meet these standards.

On September 5, 2017, then-Acting Secretary of

Homeland Security Elaine C. Duke issued a memo26 Cf. Judulang v. Holder, 565 U.S. 42, 53 (2011) (“When

reviewing an agency action, we must assess, among other matters, ‘whether the decision was based on a consideration of the

relevant factors and whether there has been a clear error of

judgment.’”) (quotation omitted).

19

randum rescinding DACA.

Regents Pet. App.

111a‒119a. In the five-page memorandum, Acting

Secretary Duke summarized the procedural history

of litigation filed by Texas and a coalition of states

challenging a separate deferred-action program

called Deferred Action for Parents of Americans

(DAPA). Id. at 112a‒116a. See also Texas v. United

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

equally divided Court, 136 S. Ct. 2271 (2016) (per

curiam). The memorandum also incorporated by

reference a one-page letter from then-Attorney General Sessions, in which the Attorney General instructed Acting Secretary Duke to rescind DACA because the program’s enactment was purportedly unlawful (Sessions Letter). Regents Pet. App. 116a; see

also J.A. 877‒78 (letter noting that DACA had been

“effectuated by the previous administration through

executive action [and] without proper statutory authority,” and concluding that “[s]uch an open-ended

circumvention of immigration laws was an unconstitutional exercise of authority by the Executive

Branch.”).

Based on the outcome of the DAPA litigation and

the Sessions Letter, the September Memorandum

concluded that “it is clear that the June 15, 2012

DACA program should be terminated.” Regents Pet.

App. 117a. Although it acknowledges DHS’s departure from existing policy, the September Memorandum does not discuss the effects of the rescission,

save for a passing reference to unexplained “complexities associated with winding down the program.” Id. The memorandum makes no mention at

all of any reliance interests likely to be harmed by

20

the change in policy. Such cursory treatment of the

wide-reaching impacts of rescission does not comply

with the APA.

Although a decision enacting a new policy generally need not provide more than a “rational connection between the facts found and the choice made,”

State Farm, 463 U.S. at 43 (quotation omitted), Acting Secretary Duke was not working “on a blank

slate” when she issued the September Memorandum:

the DACA program had been in place for over half a

decade and offered protections and opportunities

that have benefited not just individual applicants

but also state and local governments and the public

at large. See supra Section II. Under these circumstances, “a more detailed justification” for the policy

reversal is required. Fox Television, 556 U.S. at 515

(holding that agency must “provide a more detailed

justification than what would suffice for a new policy

created on a blank slate” when its “prior policy has

engendered serious reliance interests that must be

taken into account”) (quotation omitted); accord Encino Motorcars, 136 S. Ct. 2125‒26.

Here, the reliance interests are fundamental. As

a result of the DACA program, nearly a million individuals, many from amici’s communities, have

stepped out of the shadow of fear and begun to lead

open and productive lives. Beneficiaries structured

their education, employment, housing, and other life

activities on the reliance that they would be protected by deferred action and employable because of

their work authorization if they continued to satisfy

eligibility criteria. J.A. 879‒980. DACA has given

recipients of deferred action the encouragement and

21

comfort to openly enter the work force, take on student loans, sign mortgages, and even start new

businesses.

DACA applicants shared intimate details and biometric data with DHS for the opportunity to participate in the program. Plainly, they would not have

provided this information without being able to rely

upon the positive impacts of the program. That reliance was not merely foreseeable, it was expected by

DHS.27 Petitioners’ decision to rescind DACA upsets

these interests: it would upend the enriching lives

that DACA recipients have built and drive thousands of productive members of our communities to

the margins of society.

The DACA program has also created reliance interests beyond individual recipients. When DACA

was announced, DHS found that by granting young,

long-term immigrants deferred action and offering

the opportunity to apply for work authorization, the

program would benefit not only the recipients, but

society as a whole.28 That is precisely what hap27 See U.S. Dep’t of Homeland Sec., Letter by Secretary Jeh

Johnson to U.S. Representative Judy Chu (Dec. 30, 2016),

https://perma.cc/3MVA-6EU5 (“We believe these representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be honored.”).

28 U.S. Dep’t of Homeland Sec., Memorandum from Secre-

tary Janet Napolitano on Exercising Prosecutorial Discretion

with Respect to Individuals Who Came to the United States as

Children (June 15, 2012), https://perma.cc/B2CW-SPRR; Office

of the Press Sec’y, Remarks by the President on Immigration

(June 15, 2012), https://perma.cc/H9YP-8869.

22

pened. As detailed above, the DACA program has

made our communities more economically robust

and discernibly safer. See supra Section II. Rescission will not only deal amici the staggering loss of

hundreds of thousands of individual economic contributors and cause fear that undermines public

health and safety, but it will also force amici to operate and fund the social safety net that will be

needed to catch recipients’ families when jobs are

lost, health insurance plans are discontinued, college

educations are forfeited, homes fall into foreclosure,

and families are forced apart by low-priority removals. Although they may be different in kind from recipients’ interests, amici’s interests are no less relevant.29 See Encino Motorcars, 136 S. Ct. at 2126

(holding that industry reliance on prior policy should

be considered by agency).

The September Memorandum inexplicably contains no mention of these obvious reliance interests.

Its passing reference to certain unidentified “complexities” associated with rescission, Regents Pet.

App. 117a, falls far short of Petitioners’ obligation to

provide “a reasoned explanation . . . for disregarding

facts and circumstances that underlay or were engendered by the prior policy.” Fox Television, 556

U.S. at 515‒16; see also Perez v. Mortg. Bankers

Ass’n, 135 S. Ct. 1199, 1209 (2015) (“[T]he APA requires an agency to provide more substantial justifiIndeed, Congress has also directed that when agencies

consider policy changes of this magnitude, they consider impact

on small businesses and localities. See Regulatory Flexibility

Act, 5 U.S.C. §§ 601, 603‒04.

29

23

cation . . . when its prior policy has engendered serious reliance interests that must be taken into account.”) (quotation omitted).

Petitioners now assert that “the Secretary sufficiently considered the reliance interests of DACA recipients” as required by the APA.30 Pet. Br. 42. But

Petitioners point to nowhere in the September Memorandum where Acting Secretary Duke considered

any reliance interests. Instead, they rely exclusively

on the Nielsen Memorandum. Pet. Br. 42; see Regents Pet. App. 120a‒126a. As discussed below, the

Nielsen Memorandum’s post-hoc explanations cannot permissibly be considered in assessing the legality of Petitioners’ decision to rescind DACA. See infra

Section III.B.2.

Even if the memorandum could be considered,

Secretary Nielsen’s after-the-fact explanation does

not satisfy Petitioners’ burden. The Nielsen Memorandum states only that the Secretary did not come

to her “conclusions lightly,” and was “keenly aware

that DACA recipients have availed themselves of the

30 In passing, Petitioners appear to suggest that they were

not required to consider reliance interests based on the presence of certain disclaimers in the policy memorandum. See Pet.

Br. 42 (“By its own terms, the policy ‘confer[red] no substantive

right’ or lawful ‘immigration status.’”). Whether DACA recipients had a constitutionally protected liberty or property interest in the existence of the DACA program is wholly different

than whether the recipients had reliance interests that Petitioners were required to consider. Batalla Vidal Pet. App.

115a‒116a; cf. Encino Motorcars, 136 S. Ct. at 2126‒27 (holding

that agency required to consider automobile industry’s reliance

interests in prior interpretation of Fair Labor Standards Act).

24

policy in continuing their presence in this country

and pursuing their lives.” Regents Pet. App. 125a.

But that was the extent of the discussion,31 and, in

the very next sentence, those reliance interests were

found to be outweighed by the “questionable legality”

of the DACA program and “other reasons for ending

the policy.” Id.

Such a “summary discussion . . . f[alls] short of

the agency’s duty to explain why it deemed it necessary to overrule its previous position.” Encino Motorcars, 136 S. Ct. at 2126‒27 (where agency stated

that “it had carefully considered all of the comments,

analyses, and arguments made for and against the

proposed changes,” concluding that “[i]n light of the

serious reliance interests at stake, the Department’s

conclusory statements do not suffice to explain its

decision”) (quotation omitted); accord Perez, 135

S. Ct. at 1209 (agency must provide “more substantial justification” for departure from past practice).

Vacatur is therefore required. Compliance with

the APA’s requirements is not a mere formality. Cf.

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.

402, 415 (1971) (review of agency action under APA

is to be “thorough, probing, [and] in-depth”). An

agency’s duty to consider reliance interests and competing concerns is a bulwark against arbitrary administrative action. Here, as elsewhere, the law

31 In fact, Secretary Nielsen went so far as to disavow any

substantive discussion of reliance interests, stating, instead,

that “issues of reliance would best be considered by Congress.”

Id.

25

seeks to protect settled expectations. Cf. Landgraf v.

USI Film Prods., 511 U.S. 244, 265 (1994) (“[S]ettled

expectations should not be lightly disrupted.”); Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 202

(1991) (“Stare decisis has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous decision, for in this instance overruling the decision

would dislodge settled rights and expectations . . . .”).

This case demonstrates precisely why the law

imposes such a requirement. Because Petitioners

wholly failed to meet it, their decision to rescind

DACA is unlawful. See Encino Motorcars, 136 S. Ct.

at 2126‒27 (agency policy change was unlawful

where the agency did not sufficiently address reliance interests); Nat’l Lifeline Ass’n v. FCC, 921 F.3d

1102, 1114‒15 (D.C. Cir. 2019) (departure from prior

forbearance policy was arbitrary and capricious

where commission failed to consider the primary effects of change, including the interests of providers

who “had crafted business models and invested significant resources” in reliance on the prior policy).32

32 Accord Fox Television, 556 U.S. at 515 (“It would be arbi-

trary or capricious to ignore such matters.”); Smiley v. Citibank

(S.D.), N.A., 517 U.S. 735, 742 (1996) (“[C]hange that does not

take account of legitimate reliance on prior interpretation . . .

may be ‘arbitrary, capricious [or] an abuse of discretion.’”) (quotations omitted).

26

B. Post-Hoc Rationalizations Do Not Insulate Petitioners’ Decision From Review

or Render it Lawful.

On June 22, 2018, in response to the District of

Columbia district court’s order vacating the September Memorandum,33 then-Secretary Nielsen issued a

memorandum further addressing DHS’s decision to

rescind the DACA program. Regents Pet. App.

120a‒126a. The Nielsen Memorandum did not purport to rescind DACA anew. Id. at 121a (“Having

considered the Duke memorandum and Acting Secretary Duke’s accompanying statement, the administrative record for the Duke memorandum that was

produced in litigation, and the judicial opinions reviewing the Duke memorandum, I decline to disturb

the Duke memorandum’s rescission of the DACA policy . . . .”). Instead, it attempted to elucidate “why

the decision to rescind the DACA policy was, and

remains, sound.” Id. In explaining her “understanding of the Duke memorandum,” Secretary Nielsen

offered additional detail supporting Acting Secretary

Duke’s conclusion that DACA was unlawful. Id. at

121a‒123a. She also set forth new policy rationales

not reflected in the September Memorandum that

33 The district court concluded that “DACA’s rescission was

unlawful and must be set aside” because it was predicated on a

judgment of the DACA program’s lawfulness that “was virtually unexplained” and thus arbitrary and capricious. NAACP

Pet. App. 73a‒74a. The court, however, stayed its order of vacatur for ninety days “to afford DHS an opportunity to better

explain its view that DACA is unlawful.” Id.

27

are independent of whether DACA is “illegal or legally questionable.” Id. at 123a‒125a.

Petitioners heavily rely on the Secretary’s new

explanations to argue that the September Memorandum is unreviewable by this Court, see Pet. Br.

26‒32, and in an attempt to bolster the legally

flawed and inadequate decision-making that infects

the September Memorandum, see Pet. Br. 37‒43, but

the Nielsen Memorandum cannot carry either point.

“A court may uphold agency action only on the

grounds that the agency invoked when it took the

action.” Michigan, 135 S. Ct. at 2710 (citing SEC v.

Chenery Corp., 318 U.S. 80, 87 (1943)). Accordingly,

Secretary Nielsen’s new, after-the-fact explanations

provide no basis to disturb the lower courts’ decisions.

1. The Nielsen Memorandum Does Not Alter the

Reviewability Determination Made by the

Courts Below.

Each of the courts below concluded that Petitioners’ decision to rescind the DACA program is reviewable under the APA. Regents Pet. Supp. App.

23a‒45a; NAACP Pet. App. 25a‒43a, 95a‒103a; Batalla Vidal Pet. App. 1a‒58a. These decisions are

correct, see Regents Resp. Br. 17‒30; DACA Recipient Resp. Br. 17‒29; State of Cal. Resp. Br. 13‒23;

State of N.Y. Resp. Br. 16‒30; D.C. Resp. Br. 21‒34,

49‒61, and the Nielsen Memorandum provides no

basis for disturbing them.

“[C]ourts retain a role, and an important one, in

ensuring that agencies have engaged in reasoned decisionmaking.” Judulang, 565 U.S. at 53. Although

28

there is a “strong presumption” in favor of judicial

review of agency action, Bowen v. Mich. Acad. of

Family Physicians, 476 U.S. 667, 670 (1986), the

APA bars judicial review of agency action “committed to agency discretion by law.”

5 U.S.C.

§ 701(a)(2). “This is a very narrow exception” applicable only “in those rare instances where statutes

are drawn in such broad terms that in a given case

there is no law to apply.” Overton Park, 401 U.S. at

410.

Petitioners argue that the rescission of DACA is

the type of enforcement decision that is presumptively unreviewable under the APA. See Pet. Br. 17‒21.

In support of this position, they rely on the Court’s

decision in Heckler v. Chaney, 470 U.S. 821 (1985).

There, the Food and Drug Administration declined

to take enforcement action against prison officials for

using certain drugs in human executions when they

had not been approved for that purpose. Id. at

823‒24. In response to a petition from a group of

death row inmates, the agency questioned whether it

had jurisdiction to prohibit the use of drugs in executions, but concluded that assuming it did have jurisdiction, it would “decline to exercise it under [the

agency’s] inherent discretion.” Id. at 824. The Court

held that the agency’s discretionary decision not to

enforce was unreviewable under the APA, concluding that “agency refusals to institute investigative or

enforcement proceedings” fall within the narrow

general exception to reviewability. Id. at 837‒38.

The Court, however, expressly did not reach the

question of whether “a refusal by the agency to institute proceedings based solely on the belief that it

29

lacks jurisdiction” might nonetheless be reviewable.

Id. at 833 n.4.

Each of the courts below rejected Petitioners’ argument that the rescission of DACA is the type of

discretionary decision that enjoys a Chaneypresumption of nonreviewability.

The Eastern District of New York rejected Petitioners’ assertion that “the decision to rescind the

DACA program constitutes ‘an exercise of enforcement discretion’ that is ‘entrusted to the agency

alone’ and immune from judicial review.” Batalla

Vidal Pet. App. 28a. Judge Garaufis reasoned that

the “decision to rescind DACA is unlike the nonenforcement decision at issue in Chaney” because the

rescission was actually an enforcement decision, not

a non-enforcement decision. Id. at 28a‒31a. As the

court noted, Respondents did not challenge DHS’s

refusal to prosecute certain alleged violations of law

or individual non-enforcement decisions, because

DHS’s rescission of DACA was a commitment to take

enforcement action. Id. The court also reasoned

that Petitioners’ decision to rescind DACA was not

motivated by a “complicated balancing of . . . factors”

within their expertise, as was the case in Chaney,

but instead was based on their understanding that

the program was unlawful. Id.

The Ninth Circuit similarly concluded that Acting Secretary Duke’s decision was reviewable under

the APA. While acknowledging that Petitioners’ decision falls outside the bounds of Chaney because it

implicated enforcement action (not nonenforcement

action), Regents Pet. Supp. App. 34a‒35a, n.13, the

court based its conclusion on circuit precedent that

30

“directly addressed the question” left open by

Chaney’s footnote four. Id. at 26a. The court followed Montana Air Chapter No. 29 v. Federal Labor

Relations Authority, 898 F.2d 753 (9th Cir. 1990),

which held that a nonenforcement decision is presumptively reviewable “if it is based solely on a belief that the agency lacked the lawful authority to do

otherwise,” and concluded that it could review Petitioners’ decision because it was based on Petitioners’

belief that DACA was unlawful. Id. at 23a‒42a.

Finally, the District Court for the District of Columbia also concluded that DHS’s decision was reviewable under the APA.

NAACP Pet. App.

42a‒43a. The court concluded that Petitioners’ decision did not reflect a “discretionary enforcement policy,” but instead represented a “legal interpretation[ ] couched as [a] broad enforcement polic[y],”

which fell outside of Chaney and was reviewable. Id.

at 34a‒35a (citing OSG Bulk Ships, Inc. v. United

States, 132 F.3d 808 (D.C. Cir. 1998)); id. at

31a‒43a.

Although the courts below employed slightly different reasoning, their reviewability analysis shares

a common thread—an enforcement decision, particularly one based on the agency’s interpretation of the

scope of its legal authority, is not a presumptively

unreviewable exercise of discretion under Section

701. Regents Pet. Supp. App. 29a (“[W]here the

agency’s decision is based not on an exercise of discretion, but instead on a belief that any alternative

choice was foreclosed by law, the APA’s ‘committed

to agency discretion’ bar to reviewability [ ] does not

apply.”); NAACP Pet. App. 42a‒43a (rescission solely

31

supported by “a legal determination which, when

made in the context of a general enforcement policy,

is not subject to Chaney’s presumption of unreviewability”); Batalla Vidal Pet. App. 30a‒31a (“Defendants stated that they were required to rescind the

DACA program because it was unlawful, which suggests both that Defendants did not believe that they

were exercising discretion when rescinding the program and that their reasons for doing so are within

the competence of this court to review.”). Because

the only reasons for rescission in the September

Memorandum were Acting Secretary Duke’s and Attorney General Sessions’s conclusions that DACA

was unlawful, that decision was reviewable under

the APA. Regents Pet. Supp. App. 34a‒42a; NAACP

Pet. App. 41a‒43a; Batalla Vidal Pet. App. 28a‒31a.

Against this backdrop,34 the irrelevance of the

Nielsen Memorandum is clear. Insofar as the memorandum offered additional explanation regarding

the program’s purported unlawfulness, Regents Pet.

App. 122a‒123a (discussing Attorney General’s conclusion that DACA “was contrary to law” and other

“serious doubts about its legality”), it did not change

the fact that the Acting Secretary’s decision to reAs discussed at length by Respondents, the conclusion

reached by the courts below is consistent with the Court’s precedent, including its decision in ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987), and most closely adheres to

the concerns animating the Chaney presumption. Regents

Resp. Br. 18‒25; DACA Recipient Resp. Br. 21‒24 ; State of Cal.

Resp. Br. 15‒21; State of N.Y. Resp. Br. 23‒29; D.C. Resp. Br.

26‒30.

34

32

scind DACA was based on the belief that the program was unlawful. Such a decision is reviewable,

whether supported only by the September Memorandum’s bare analysis or Secretary Nielsen’s additional explanation.

To the extent the Nielsen Memorandum offered

rationales separate and distinct from the sole reason

provided in the September Memorandum, id. at

123a‒125a (discussing “sound reasons of enforcement policy to rescind the DACA policy”), those after-the-fact explanations cannot insulate the Acting

Secretary’s decision from review.35 Although the

Court has permitted limited remand to an agency for

further explanation of previously articulated reasoning, see Overton Park, 401 U.S. at 420, such a remand is “for a fuller explanation of the agency’s reasoning at the time of the agency action,” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654

(1990) (emphasis added). New rationales advanced

35 The Ninth Circuit refused to consider the Nielsen Memo-

randum because it was not part of the administrative record,

but also noted that it constituted an impermissible “post-hoc

rationalization” of the decision to rescind DACA. Regents Pet.

Supp. App. 57a‒58a, n.24. The District Court for the District of

Columbia considered the Nielsen Memorandum, but concluded

that certain rationales were new post-hoc rationalizations

whereas others built upon Acting Secretary Duke’s reviewable

legal conclusion. NAACP Pet. App. 88a‒95a. However you

slice it, the Nielsen Memorandum does not provide a basis for

altering the lower courts’ reviewability determinations: any

further legal analysis does not change the fact that DHS’s legal

conclusion is reviewable, and any new rationales should be disregarded.

33

after the fact must be disregarded. Cf. Chenery, 318

U.S. at 88 (APA review is based solely on “the

grounds upon which the [agency] itself based its action”).

This rule makes perfect sense. The APA is meant

to promote accountability of federal agencies to the

public. Cf. Franklin v. Massachusetts, 505 U.S. 788,

796 (1992) (“The APA sets forth the procedures by

which federal agencies are accountable to the public

and their actions subject to review by the courts.”);

Block v. Cmty. Nutrition Inst., 467 U.S. 340, 348‒49

(1984) (discussing presumption in favor of judicial

review of agency action). If agencies were permitted

to go back to the drawing board and manufacture

new rationales for challenged decisions in order to

short-circuit judicial review, the APA would be rendered impotent. But that is exactly what Petitioners

seek to do here.

Petitioners argue that the Court need only disregard post-hoc explanations offered by counsel. Pet.

Br. 29 (“[C]ourts may not accept appellate counsel’s

post hoc rationalizations for agency action.”) (quotation omitted). This rejoinder misses the mark. The

crucial issue is not who provides the subsequent reasoning, but what that after-the-fact reasoning is (i.e.,

whether it provides further explanation of prior stated reasons or supplies new rationales altogether).

The post-hoc rationalization rule aims to ensure

that an agency action is upheld only on the basis of

the grounds that were provided at the time the challenged action was taken. See Camp v. Pitts, 411 U.S.

138, 143 (1973) (agency action must “stand or fall”

based on “determinative reason” identified in the

34

agency’s “contemporaneous explanation”) (citing

Chenery, 318 U.S. at 80); Food Mktg. Inst. v. ICC,

587 F.2d 1285, 1290 (D.C. Cir. 1978) (“Post-hoc rationalizations by the agency on remand are no more

permissible than are such arguments when raised by

appellate counsel during judicial review.”); cf. Pension Benefit Guar. Corp., 496 U.S. at 654 (remand

was limited to explanation of “agency’s reasoning at

the time of the agency action”).

An agency may of course take new action in response to a legal challenge. For example, DHS could

have rescinded the September Memorandum and issued a new decision. Secretary Nielsen could have

then contemporaneously “explain[ed] her reasons”

for rescinding the DACA program. Pet Br. 29. Petitioners expressly refused to do so.

Notwithstanding their assertions that the Nielsen Memorandum “is agency action, not a post hoc

rationalization of it,” Pet. Br. 29 (quotation omitted),

the memorandum plainly shows that Petitioners expressly refused to take new action. Regents Pet. App.

121a (“I decline to disturb the Duke memorandum’s

rescission of the DACA policy.”). Whatever Petitioners’ reasons were for that decision, it came with consequences, one of which was that Secretary Nielsen

could not offer new rationales for rescission not included in the September Memorandum. Because the

Nielsen Memorandum offered either further reasoning of DHS’s reviewable legal conclusion or new explanations that must be disregarded, it provides no

basis to alter the lower courts’ conclusions that Petitioners’ rescission of DACA is reviewable under the

APA.

35

2. The Nielsen Memorandum Does Not Save Petitioners’ Decision to Rescind DACA From Being

Arbitrary and Capricious.

Petitioners also assert that the Nielsen Memorandum establishes that the rescission of DACA was

lawful. Pet. Br. 37‒43. But as with the reviewability analysis, the memorandum cannot shore up Petitioners’ inadequate decision-making.

Giving “adequate reasons” for an agency’s decision is “[o]ne of the basic procedural requirements of

administrative rulemaking.” Encino Motorcars, 136

S. Ct. at 2125. In an APA challenge, “an agency’s

action must be upheld, if at all, on the basis articulated by the agency itself.” State Farm, 463 U.S. at

50. As with reviewability, post-hoc rationalizations

that do not build on the agency’s contemporaneous

explanation but instead provide new reasons for the

decision cannot be considered in an arbitrary-andcapricious review of the agency action. See Pension

Benefit Guar. Corp., 496 U.S. at 654; Camp, 411 U.S.

at 143; Overton Park, 401 U.S. at 419.

Either the statements set forth in the Nielsen

Memorandum are enlarging on Petitioners’ old legal

rationale about DACA’s legality or they are new policy reasons for rescission. But either way, Petitioners’ decision is arbitrary and capricious.

Certain reasons provided in the Nielsen Memorandum are in the former category: they simply enlarge upon the erroneous conclusion in the September Memorandum that DACA was unlawful. Secretary Nielsen’s reaffirmation of Acting Secretary

Duke’s and Attorney General Sessions’s conclusions,

36

Regents Pet. App. 122a‒123a (noting the Attorney

General’s conclusion that “the DACA policy was contrary to law” and that she was “bound by” that determination), and discussion of reasons “to avoid discretionary policies that are legally questionable,” id.

at 123a, mirror the legal rationale provided in the

September Memorandum, id. at 112a‒116a, and

should be rejected for the same reasons. NAACP

Pet. App. 103a‒109a (district court considering

above-referenced policy rationales from Nielsen

Memorandum and finding no basis to alter conclusion that rescission was arbitrary and capricious).

That legal conclusion was erroneous when Petitioners issued the September Memorandum, see Regents Resp. Br. 44‒55; DACA Recipient Resp. Br.

37‒48; State of Cal. Resp. Br. 25‒41; State of N.Y.

Resp. Br. 43‒51; D.C. Resp. Br. 34‒49, and remains

so even with Secretary Nielsen’s additional analysis.36 Because the decision to rescind DACA was

36 Petitioners contend that DHS correctly concluded that

DACA was unlawful in part because the DACA program is not

an “interstitial matter” of immigration enforcement over which

the agency retains authority. Pet. Br. 44 (citing FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). Instead, they assert it is an “agency decision[ ] of vast ‘economic

and political significance,’” pointing to work authorization,

which Petitioners claim “aid [DACA recipients] in their continuing unlawful presence.” Pet. Br. 44‒45 (citing Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014)). Petitioners’ argument is meritless, see, e.g., Regents Resp. Br. 49‒53; DACA

Recipient Resp. Br. 37‒40; State of Cal. Resp. Br. 27‒34, and

relies on an incorrect premise. The availability of work authorization is not grounded in the DACA program. Instead, it flows

from the Secretary of Homeland Security’s express authority to

37

based on a faulty legal conclusion, it must be set

aside. See Chenery, 318 U.S. at 94 (“[I]f the action is

based upon a determination of law as to which the

reviewing authority of the courts does come into

play, an order may not stand if the agency has misconceived the law.”).

The other reasons stated in the Nielsen Memorandum are new and were never previously considered by Acting Secretary Duke. Such after-the-fact

justifications are irrelevant to the Court’s arbitraryand-capricious analysis. See Camp, 411 U.S. at 143;

Food Mktg. Inst., 587 F.2d at 1290.

Secretary Nielsen discussed various “policy reasons of enforcement policy” supporting the rescission, including her belief that DHS should not adopt

broad policies of non-enforcement when they were

not authorized by Congress, should only exercise its

discretion on a case-by-case basis, and should project

a clear message about “enforcement of the immigration laws.” Regents Pet. App. 123a‒124a. But the

five-page September Memorandum did not discuss

these reasons for rescission.37 Id. at 111a‒119a.

“authorize” various immigrants for employment who have

shown “economic necessity to work.” 8 U.S.C. § 1324a(h)(3);

8 C.F.R. § 274.12(c)(14). The Secretary has for decades granted

work authorization to certain qualified immigrants and exercised her discretion to do so for DACA recipients when the program was instituted in 2012.

37 Petitioners note that the District Court for the District of

Columbia concluded that certain of these policy reasons were

not “post-hoc rationalizations.” Pet. Br. 29. Even if the policy

considerations are viewed as an elaboration of the September

38

The Nielsen Memorandum’s cursory discussion of

recipients’ reliance interests, id. at 125a, likewise

had no root in the September Memorandum, id. at

111a‒119a, and should be rejected for this reason

alone. See Encino Motorcars, 136 S. Ct. at 2126.

***

Petitioners lean heavily on the Nielsen Memorandum to support their assertions that the decision

to rescind the DACA program is not subject to judicial review and is substantively valid. See Pet. Br.

26‒32, 37‒43, 50‒52. But the three-page Nielsen

Memorandum cannot shore up the faulty decisionmaking in the September Memorandum because it

merely restates erroneous legal conclusions or offers

new, post-hoc policy rationalizations that cannot be

considered. Under this Court’s precedent, such explanations provide no basis to disturb the lower

courts’ reviewability and merits determinations.

CONCLUSION

For the foregoing reasons, the September Memorandum undermines amici’s interests in fostering

safe, prosperous communities where all individuals—including the hundreds of thousands of residents receiving deferred action under DACA—are

given an opportunity to participate and grow. The

courts below correctly decided that Petitioners’ deciMemorandum, they are based on Acting Secretary Duke’s original legal conclusion, and as explained in the preceding paragraph, do not change the fact that Petitioners’ decision was arbitrary and capricious.

39

sion to rescind DACA is reviewable and unlawful.

Accordingly, the Court should affirm the judgments

of the Ninth Circuit and the District Court for the

District of Columbia, and the orders of the Eastern

District of New York.

Respectfully submitted,

MICHAEL N. FEUER

City Attorney

JAMES P. CLARK

VALERIE L. FLORES

DANIELLE GOLDSTEIN

MICHAEL DUNDAS

Counsel of Record

200 N. Main Street

Los Angeles, CA 90012

(213) 978-8100

mike.dundas@lacity.org

MARGARET L. CARTER

DANIEL R. SUVOR

DIMITRI D. PORTNOI

DANIEL J. TULLY

O’MELVENY & MYERS LLP

400 South Hope Street

18th Floor

Los Angeles, CA 90071

(213) 430-6000

Counsel for Amicus Curiae

City of Los Angeles, Calif.

Counsel for Amicus Curiae

County of Los Angeles, Calif.

October 4, 2019

1a

APPENDIX A

LIST OF AMICI CURIAE

MICHAEL N. FEUER

City Attorney

JAMES P. CLARK

VALERIE L. FLORES

DANIELLE GOLDSTEIN

MICHAEL DUNDAS

200 N. Main Street

Los Angeles, CA 90012

MARGARET L. CARTER

DANIEL R. SUVOR

DIMITRI D. PORTNOI

DANIEL J. TULLY

O’MELVENY & MYERS LLP

400 South Hope Street

18th Floor

Los Angeles, CA 90071

Counsel for Amicus Curiae Counsel for Amicus Curiae

City of Los Angeles, Califor- County of Los Angeles, Calinia

fornia

EVE V. BELFANCE

Director of Law

161 S. High Street,

Suite 202

Akron, OH 44308

DONNA R. ZIEGLER

County Counsel

1221 Oak Street, Suite 450

Oakland, CA 94612

Counsel for Amicus Curiae

City of Akron, Ohio

Counsel for Amicus Curiae

County of Alameda, California

CRAIG LABADIE

City Attorney

1000 San Pablo Avenue

Albany, CA 94706

WILLIAM G. KELLY, JR.

Corporation Counsel

24 Eagle Street

Albany, NY 12207

Counsel for Amicus Curiae

City of Albany, California

Counsel for Amicus Curiae

City of Albany, New York

2a

ESTEBAN A. AGUILAR, JR. JOANNA C. ANDERSON

City Attorney

City Attorney

P.O. Box 2248

301 King Street, Suite 1300

Albuquerque, NM 87103 Alexandria, VA 22314

Counsel for Amicus Curiae

City of Albuquerque, New

Mexico

Counsel for Amicus Curiae

City of Alexandria, Virginia

GREGORY J. SWAIN

County Attorney

2660 Riva Road,

4th Floor

Annapolis, MD 21401

STEPHEN A. MACISAAC

County Attorney

2100 Clarendon Boulevard,

Suite 403

Arlington, VA 22201

Counsel for Amicus Curiae Counsel for Amicus Curiae

Anne Arundel County, Mar- County of Arlington, Virginia

yland

SHANNON CHAFFIN

City Attorney

Aleshire & Wynder, LLP

2440 Tulare Street,

Suite 410

Fresno, CA 93721

Counsel for Amicus Curiae

City of Arvin, California

NINA R. HICKSON

City Attorney

55 Trinity Avenue,

Suite 5000

Atlanta, GA 30303

Counsel for Amicus Curiae

City of Atlanta, Georgia

3a

ANNE L. MORGAN

City Attorney

PO Box 1546

Austin, TX 78767

Counsel for Amicus Curiae

City of Austin, Texas

FARIMAH F. BROWN

City Attorney

2180 Milvia Street,

4th Floor

Berkeley, CA 94704

Counsel for Amicus Curiae

City of Berkeley, California

ANDRE M. DAVIS

City Solicitor

100 N. Holliday Street,

Suite 101

Baltimore, MD 21146

Counsel for Amicus Curiae

City of Baltimore, Maryland

JAYME B. SULLIVAN

City Attorney

150 N. Capitol Boulevard

Boise, ID 83701

Counsel for Amicus Curiae

City of Boise, Idaho

EUGENE O’FLAHERTY

Corporation Counsel

One City Hall Square,

Room 615

Boston, MA 02201

THOMAS A. CARR

City Attorney

1777 Broadway

P.O. Box 791

Boulder, CO 80302

Counsel for Amicus Curiae

City of Boston, Massachusetts

Counsel for Amicus Curiae

City of Boulder, Colorado

4a

BEN PEARLMAN

County Attorney

P.O. Box 471

Boulder, CO 80306

Counsel for Amicus Curiae

County of Boulder, Colorado

NANCY E. GLOWA

City Solicitor

795 Massachusetts

Avenue

Cambridge, MA 02139

Counsel for Amicus Curiae

City of Cambridge, Massachusetts

RALPH KARPINOS

Town Attorney

405 Martin Luther King

Jr. Boulevard

Chapel Hill, NC 27514

EILEEN BLACKWOOD

City Attorney

City Hall

149 Church Street

Burlington, VT 05401

Counsel for Amicus Curiae

City of Burlington, Vermont

JUAN A. GONZALEZ

Chief Counsel

1100 East Monroe Street

Brownsville, Texas 78520

Counsel for Amicus Curiae

County of Cameron, Texas

CHERYL WATSON FISHER

City Solicitor

500 Broadway,

Room 307

Chelsea, MA 02150

Counsel for Amicus Curiae Counsel for Amicus Curiae

Town of Chapel Hill, North City of Chelsea, Massachusetts

Carolina

5a

MARK A. FLESSNER

Corporation Counsel

30 N. LaSalle Street,

Suite 800

Chicago, IL 60602

Counsel for Amicus Curiae

City of Chicago, Illinois

WILLIAM R. HANNA

Director of Law

40 Severance Circle

Cleveland Heights, OH

20740

Counsel for Amicus Curiae

City of Cleveland Heights,

Ohio

STEPHEN G. QUINN

City Attorney

1055 Rowland Street

Clarkston, GA 30021

Counsel for Amicus Curiae

City of Clarkston, Georgia

SUELLEN FERGUSON

City Attorney

4500 Knox Road

College Park, MD 20740

Counsel for Amicus Curiae

City of College Park, Maryland

ZACH KLEIN

City Attorney

77 N. Front Street,

4th Floor

Columbus, OH 43214

SHARON L. ANDERSON

County Counsel

651 Pine Street,

9th Floor

Martinez, CA 94553

Counsel for Amicus Curiae

City of Columbus, Ohio

Counsel for Amicus Curiae

County of Contra Costa, California

6a

KIMBERLY M. FOXX

States Attorney

69 W. Washington,

32nd Floor

Chicago, IL 60602

Counsel for Amicus Curiae

Cook County, Illinois

HEATHER M. MINNER

City Attorney

10300 Torre Avenue

Cupertino, CA 95014

Counsel for Amicus Curiae

City of Cupertino, California

JOHN BUTRUS

Federal Practices

Division Chief

133 N. Riverfront

Boulevard, LB 19

Dallas, TX 75207

Counsel for Amicus Curiae

County of Dallas, Texas

CAROL A. SCHWAB

City Attorney

9770 Culver Boulevard

Culver City, CA 90232

Counsel for Amicus Curiae

City of Culver City, California

CHRISTOPHER J. CASO

Interim City Attorney

1500 Marilla Street,

Room 7DN

Dallas, Texas 75201

Counsel for Amicus Curiae

City of Dallas, Texas

INDER KHALSA

City Attorney

Richards Watson &

Gershon

44 Montgomery Street,

Suite 3800

San Francisco, CA 94104

Counsel for Amicus Curiae

City of Davis, California

7a

BARBARA J. DOSECK

City Attorney

101 West Third Street

P.O. Box 22

Dayton, OH 45401

KRISTIN M. BRONSON

City Attorney

1437 Bannock St.,

Room 353

Denver, CO 80202

Counsel for Amicus Curiae

City of Dayton, Ohio

Counsel for Amicus Curiae

City and County of Denver,

Colorado

LAWRENCE GARCIA

Corporation Counsel

2 Woodward Avenue

Detroit, MI 48226

KIMBERLY M. REHBERG

City Attorney

101 City Hall Plaza

Durham, NC 27701

Counsel for Amicus Curiae

City of Detroit, Michigan

Counsel for Amicus Curiae

City of Durham, North Carolina

ANGELA WHEELER

City Attorney

1101 S. Saginaw Street

Flint, MI 48502

DOUGLAS T. SLOAN

City Attorney

2600 Fresno Street

Fresno, CA 93721

Counsel for Amicus Curiae

City of Flint, Michigan

Counsel for Amicus Curiae

City of Fresno, California

8a

N. LYNN BOARD

Howard G. Rifkin

City Attorney

Corporation Counsel

31 S. Summit Avenue

550 Main Street, Room 210

Gaithersburg, MD 20877 Hartford, CT 06103

Counsel for Amicus Curiae Counsel for Amicus Curiae

City of Gaithersburg, Mary- City of Hartford, Connecticut

land

MICHAEL O. FREEMAN

County Attorney

C-2000 Government

Center

300 S. Sixth Street

Minneapolis, MN 55487

Counsel for Amicus Curiae

County of Hennepin, Minnesota

KATHERINE B. RILEY

Board Attorney

Barrett Law Group, P.A.

P.O. Box 927

Lexington, MS 39095

Counsel for Amicus Curiae

County of Holmes, Mississippi

CRYSTAL BARNES

Acting City Solicitor

20 Korean Veterans

Plaza, # 204

Holyoke, MA 01040

PAUL S. AOKI

Acting Corporation

Counsel

530 S. King St., Room 110

Honolulu, HI 96813

Counsel for Amicus Curiae

City of Holyoke, Massachusetts

Counsel for Amicus Curiae

City and County of Honolulu,

Hawaii

9a

RONALD C. LEWIS

City Attorney

900 Bagby, 4th Floor

Houston, Texas 77002

Counsel for Amicus Curiae

City of Houston, Texas

E.I. CORNBROOKS, IV

City Attorney

Karpinski, Colaresi &

Karp, P.A.

120 East Baltimore Street

Baltimore, MD 21202

Counsel for Amicus Curiae

City of Hyattsville, Maryland

ELEANOR M. DILKES

City Attorney

410 East Washington

Street

Iowa City, IA 52240

Counsel for Amicus Curiae

City of Iowa City, Iowa

DANIEL T. SATTERBERG

Prosecuting Attorney

516 Fourth Avenue,

W400

Seattle, WA 98104

Counsel for Amicus Curiae

King County, Washington

CLYDE J. ROBINSON

City Attorney

241 West South Street

Kalamazoo, MI 49007

Counsel for Amicus Curiae

City of Kalamazoo, Michigan

CHARLES W. SWANSON

City Law Director

400 Main Street, Room 699

Knoxville, TN 37901

Counsel for Amicus Curiae

City of Knoxville, Tennessee

10a

JIM SMIERTKA

City Attorney

124 W. Michigan Avenue

Lansing, MI 48933

JENNIFER VEGA-BROWN

City Attorney

700 North Main

Las Cruces, NM 88001

Counsel for Amicus Curiae

City of Lansing, Michigan

Counsel for Amicus Curiae

City of Las Cruces, New Mexico

RAQUEL RUANO

City Attorney

City Hall – Room 306

200 Common Street

Lawrence, MA 01840

CHARLES PARKIN

City Attorney

411 W. Ocean Boulevard,

9th Floor

Long Beach, CA 90802

Counsel for Amicus Curiae

City of Lawrence, Massachusetts

Counsel for Amicus Curiae

City of Long Beach, California

MICHAEL P. MAY

City Attorney

210 Martin Luther King

Jr. Boulevard, Room 401

Madison, WI 53703

BRIAN E. WASHINGTON

County Counsel

3501 Civic Center Drive,

Suite 275

San Rafael, CA 94903

Counsel for Amicus Curiae Counsel for Amicus Curiae

City of Madison, Wisconsin County of Marin, California

11a

RAUL J. AGUILA

City Attorney

1700 Convention Center

Drive

Miami Beach, FL 33139

SUSAN SEGAL

City Attorney

350 S. Fifth Street,

Room #210

Minneapolis, MN 55415

Counsel for Amicus Curiae

City of Miami Beach, Florida

Counsel for Amicus Curiae

City of Minneapolis, Minnesota

LESLIE J. GIRARD

Acting County Counsel

168 West Alisal Street,

3rd Floor

Salinas, CA 93901

MARC P. HANSEN

County Attorney

101 Monroe Street

Rockville, MD 20850

DONALD A. LARKIN

City Attorney

17575 Peak Avenue

Morgan Hill, CA 95307

KRISHAN CHOPRA

City Attorney

500 Castro Street

Mountain View, CA 94041

Counsel for Amicus Curiae

City of Morgan Hill, California

Counsel for Amicus Curiae

City of Mountain View, California

Counsel for Amicus Curiae

Counsel for Amicus Curiae Montgomery County, MaryCounty of Monterey, Califor- land

nia

12a

JOHN ROSE, JR.

KATHLEEN E. GILL

Corporation Counsel

Corporation Counsel

165 Church Street, # 441 515 North Avenue

New Haven, CT 06510

New Rochelle, NY 10801

Counsel for Amicus Curiae

City of New Haven, Connecticut

Counsel for Amicus Curiae

City of New Rochelle, New

York

GEORGIA M. PESTANA

Acting Corporation

Counsel

100 Church Street

New York, NY 10007

JEFF P. H. CAZEAU

City Attorney

776 NE 125 Street

North Miami, FL 33161

Counsel for Amicus Curiae

City of New York, New York

BARBARA J. PARKER

City Attorney

One Frank H. Ogawa

Plaza, 6th Floor

Oakland, CA 94612

Counsel for Amicus Curiae

City of North Miami, Florida

WM. MATTHEW DITZHAZY

City Attorney

38300 Sierra Highway

Palmdale, CA 93550

Counsel for Amicus Curiae

Counsel for Amicus Curiae City of Palmdale, California

City of Oakland, California

13a

JEFFREY S. BALLINGER

SAMUEL S. GOREN

City Attorney

City Attorney

3200 E. Tahquitz Canyon Goren Cherof Doody &

Way

Ezrol, P.A.

Palm Springs, CA 92262 3099 East Commercial

Boulevard, Suite 200

Counsel for Amicus Curiae Fort Lauderdale, FL 33308

City of Palm Springs, California

Counsel for Amicus Curiae

City of Pembroke Pines, Florida

YVONNE HILTON

MARCEL S. PRATT

City Solicitor

City Solicitor

313 City-County Building 1515 Arch Street,

414 Grant Street

17th Floor

Pittsburgh, PA 15219

Philadelphia, PA 19102

Counsel for Amicus Curiae Counsel for Amicus Curiae

City of Pittsburgh, Pennsyl- City of Philadelphia, Pennsylvania

vania

CRIS MEYER

City Attorney

200 W. Washington

Street, 13th Floor

Phoenix, AZ 85003

Counsel for Amicus Curiae

City of Phoenix, Arizona

DAVID MINCHELLO

Corporation Counsel

515 Watchung Avenue

Plainfield, NJ 07061

Counsel for Amicus Curiae

City of Plainfield, New

Jersey

14a

TRACY P. REEVE

City Attorney

1221 SW Fourth Avenue,

Suite 430

Portland, OR 97240

Counsel for Amicus Curiae

City of Portland, Oregon

JEFFREY DANA

City Solicitor

444 Westminster Street,

Suite 220

Providence, RI 02903

Counsel for Amicus Curiae

City of Providence, Rhode

Island

JASON LOOS

City Attorney

201 4th Street SE

Rochester, MN 55904

Counsel for Amicus Curiae

City of Rochester, Minnesota

TRISHA WATERBURY CECIL

Municipal Attorney

Mason, Griffin & Pierson,

P.C.

101 Poor Farm Road

Princeton, NJ 08540

Counsel for Amicus Curiae

Municipality of Princeton,

New Jersey

BRUCE GOODMILLER

City Attorney

450 Civic Center Plaza

Richmond, CA 94804

Counsel for Amicus Curiae

City of Richmond, California

TIMOTHY R. CURTIN

Corporation Counsel

30 Church Street,

Room 400A

Rochester, NY 14614

Counsel for Amicus Curiae

City of Rochester, New York

15a

SUSANA ALCALA WOOD

LYNDSEY M. OLSON

City Attorney

City Attorney

915 I Street, Fourth Floor 15 West Kellogg Boulevard,

Sacramento, CA 95814

Suite 400

Saint Paul, MN 55102

Counsel for Amicus Curiae

City of Sacramento, Califor- Counsel for Amicus Curiae

nia

City of Saint Paul, Minnesota

CHRISTOPHER A.

CALLIHAN

City Attorney

200 Lincoln Avenue

Salinas, CA 93901

ANDY SEGOVIA

City Attorney

100 Military Plaza

3rd Floor City Hall

San Antonio, TX 78201

Counsel for Amicus Curiae

City of Salinas, California

Counsel for Amicus Curiae

City of San Antonio, Texas

MARA W. ELLIOTT

City Attorney

1200 Third Avenue,

Suite 1620

San Diego, CA 92101

DENNIS J. HERRERA

City Attorney

City Hall Room 234

One Dr. Carlton B.

Goodlett Place

San Francisco, CA 94102

Counsel for Amicus Curiae

City of San Diego, California

Counsel for Amicus Curiae

City and County of San Francisco, California

16a

JOHN C. BEIERS

County Counsel

Hall of Justice and

Records

400 County Center,

6th Floor

Redwood City, CA 94063

Counsel for Amicus Curiae

County of San Mateo, California

ERIN K. MCSHERRY

City Attorney

200 Lincoln Avenue

Santa Fe, NM 98501

DANA MCRAE

County Counsel

701 Ocean Street,

Room 505

Santa Cruz, CA 95060

Counsel for Amicus Curiae

County of Santa Cruz, California

LANE DILG

City Attorney

1685 Main Street

Santa Monica, CA 90401

Counsel for Amicus Curiae Counsel for Amicus Curiae

City of Santa Fe, New Mex- City of Santa Monica, Califorico

nia

PETER S. HOLMES

City Attorney

701 Fifth Avenue,

Suite 2050

Seattle, WA 98104

FRANCIS X. WRIGHT, JR.

City Solicitor

93 Highland Avenue

Somerville, MA 02143

Counsel for Amicus Curiae

Counsel for Amicus Curiae City of Somerville, MassachuCity of Seattle, Washington setts

17a

STEPHANIE STEELE

Corporation Counsel

227 W. Jefferson Boulevard, Suite 1200S

South Bend, IN 46601

Counsel for Amicus Curiae

City of South Bend, Indiana

JOHN M. LUEBBERKE

City Attorney

425 N. El Dorado Street

Stockton, CA 95202

KATHRYN EMMETT

Corporation Counsel

888 Washington Boulevard

Stamford, CT 06904

Counsel for Amicus Curiae

City of Stamford, Connecticut

WILLIAM FOSBRE

City Attorney

747 Market Street,

Room 1120

Tacoma, WA 98402

Counsel for Amicus Curiae

City of Stockton, California Counsel for Amicus Curiae

City of Tacoma, Washington

DAVID A. ESCAMILLA

County Attorney

P.O. Box 1748

Austin, TX 78767

RACHEL B. TURPIN

City Attorney

6200 Southcenter Boulevard

Tukwila, WA 98188

Counsel for Amicus Curiae

Travis County, Texas

Counsel for Amicus Curiae

City of Tukwila, Washington

MIKE RANKIN

City Attorney

P.O. Box 27210

Tucson, AZ 85726

ANGELO AUTERI

Corporation Counsel

1100 Valley Brook Avenue

Lyndhurst, NJ 07071

Counsel for Amicus Curiae

City of Tucson, Arizona

Counsel for Amicus Curiae

City of Union City, New

Jersey

18a

MICHAEL JENKINS

City Attorney

Best Best & Krieger LLP

1230 Rosecrans Avenue,

Suite 110

Manhattan Beach, CA

90266

Counsel for Amicus Curiae

City of West Hollywood,

California

CHUCK THOMPSON

General Counsel

International Municipal

Lawyers Association

51 Monroe Street,

Suite 404

Rockville, MD 20850

Counsel for Amicus Curiae

International Municipal

Lawyers Association

National League of Cities

660 North Capitol Street

NW

Washington, DC 20001

JOHN DANIEL REAVES

General Counsel

U.S. Conference of Mayors

1200 New Hampshire Avenue NW, Suite 800

Washington, DC 20036

Counsel for Amicus Curiae

U.S. Conference of Mayors

International City/County

Management Association

770 North Capitol Street

NE,

Suite 500

Washington, DC 20002