Opposition Brief — In Re United States, 138 S. Ct. 443 (2017) (No. 17-801)

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No. 17-801

IN THE

Supreme Court of the United States

IN RE UNITED STATES OF AMERICA, ET AL.

On Petition for a Writ of Mandamus

to the United States District Court

for the Northern District of California

Brief for Respondents Dulce Garcia,

Miriam Gonzalez Avila, Saul Jimenez Suarez,

Viridiana Chabolla Mendoza, Norma Ramirez,

Jirayut Latthivongskorn, the County of Santa

Clara, and Service Employees International

Union Local 521 in Opposition

Nico.e A. SAHARSKY THEODORE J. BOUTROUS, JR.

Gipson, DUNN & CRUTCHER LLP COUNSEL OF RECORD

1050 CONNECTICUT AVENUE, N.W. ETHAN D. DeETTMER

WASHINGTON, DC 20036 KIRSTEN GALLER

(202) 955-8500 JESSE GABRIEL

Gipson, DUNN & CRUTCHER LLP

Mark D. ROSENBAUM 333 SoutH GRAND AVENUE

PUBLIC COUNSEL Los ANGELES, CA 90071

610 SoUTH ARDMORE AVENUE (213) 229-7520

Los ANGELES, CA 90005 TBOUTROUS@GIBSONDUNN .COM

(213) 385-2977

Counsel for Respondents Dulce Garcia, Miriam Gonzalez Avila, Saul

Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez,

and Jirayut Latthivongskorn

(Additional Parties and Counsel Listed on Inside Cover)

(415) 421-7151

Counsel for Respondents County of

Santa Clara and Service Employees

International Union Local 521

QUESTION PRESENTED

Since 2012, the Deferred Action for Childhood Ar-

rivals program (DACA) has enabled nearly 800,000

undocumented individuals who were brought to the

United States as children to live and work without

fear of deportation. The President has reaffirmed the

government’s commitment to DACA. But in Septem-

ber 2017, the Acting Secretary of Homeland Security

abruptly decided to terminate the program.

Respondents brought suit to challenge that deci-

sion. The district court directed the government to

produce the record on which the decision was made.

The government produced an administrative record of

only 14 publicly available documents—obviously not

the entire basis for determining the fate of the 800,000

Dreamers. The district court therefore ordered the

government to compile the “whole record.” 5 U.S.C.

§ 706. The government identified and claimed privi-

lege for 84 additional documents; the court reviewed

them in camera and ordered that only 35 of them be

included in the record. Regarding discovery, the

court, at the government’s request, limited the num-

ber of interrogatories, requests for document produc-

tion, and depositions. The court has not yet ordered

the government to produce any item in discovery.

The question presented is:

Whether the extraordinary remedy of mandamus

is justified here, where the district court has required

the government to complete the administrative record

with non-privileged material to permit judicial review

of the decision to eliminate DACA, and the court has

not ordered the government to produce any particular

materials in discovery.

TABLE OF CONTENTS

Page

ED ccncccccsnisnecnsstanecscmnptinnmccnmaninenens 3

I cecinescnstesssniecensassumicinennemnueesaseninncennniia 3

ITE csctcicntcistenventnnanensneneasinnbiniennnunidbiatniesiainiotyie 3

EE wietrtnrtieeciinvnintenisenmneitemaeienets 10

I. The government has failed to justify

i cesnicsncimnnsrinrnitintintanimmennnsenes 11

A. The government has adequate means

to obtain relief from the lower courts .......... 11

B. The government does not have a clear

and indisputable right to mandamus

SE cecntennsertnrstnssscentacnmenemetenieinanioreememes 14

1. Completion of the administrative record

eonnnusnanndenenitnapennintiisemsianesntnmniaiinnapusinien 14

2. In camera review of documents for which

the government claimed deliberative-

PFOCESS PTiVilEeBe.................ccccceceeneeeeeereees 21

3. Evaluation of executive privilege and

attorney-client privilege claims............. 25

GO, nccccsnsencssneestensemnmamiensenteecen 28

C. Mandamus is not appropriate under

the circumstances of this case...................... 29

Il. The government’s alternative request for a

writ of certiorari should be denied..................... 32

EIEIO corcecccecesessssnsnsesnsscsscnsensenmnesoesnaseuseseesses 36

ili

TABLE OF AUTHORITIES

Page(s)

Cases

Allied Chem. Corp. v. Daiflon, Inc.,

ee 30, 31

Bankers Life & Cas. Co. v. Holland,

a ii cre aatemenentnneiiiel 31

Bar MK Ranches v. Yuetter,

994 F.2d 735 (10th Cir. 1993)............ 14, 15, 16, 19

Bogan v. City of Boston,

489 F.3d 417 (Ist Cir. 2007) ................ccccccceeeeeeeee 24

Boumediene v. Bush,

I cael aia 31

Checkosky v. SEC,

23 F.3d 452 (D.C. Cir. 1994) .0..........cccccecceceeeeeeeees 23

Chem. Mfrs. Ass’n v. EPA,

870 F.2d 177 (5th Cir. 1989).................0ccccceeeeeeees 12

Cheney v. U.S. Dist. Ct. for the Dist. of

Columbia,

Lf ener 20, 34

Chevron Corp. v. Pennzoil Co.,

974 F.2d 1156 (9th Cir. 1992)............0..0...ccceeee 27

Citizens for Smart Growth v. Sec’y of

Dep't of Transp..,

669 F.3d 1203 (11th Cir. 2012) 0000.0... eeeeeeeees 12

Citizens to Preserve Overton Park, Inc.

v. Volpe,

40) U.S. 402 (1971)...........00000 2, 14, 20, 23, 31, 34

Epsilon Elecs., Inc. v. U.S. Dep't of the

Treasury,

857 F.3d 913 (D.C. Cir. 2017) ...........ccccccceeeeeeeeeees 24

FCC v. Fox Television Stations, Inc.,

I en ceesnnnseenee 17

Fed. Power Comm’n v. Transcontinental

Gas Pipe Line Corp.,

I a i ealeamratetasinntinnl 18

FedEx Ground Package Sys., Inc. v. U.S.

Judicial Panel on Multidistrict

Litig.,

662 F.3d 887 (7th Cir. 2011)...............ccccceecceeeeeeee 30

Firestone Tire & Rubber Co. v. Risjord,

449 U.S. 368 (1981) 0.0.0.0... ccccceeseeeeeeeeeeeeeeeeeeeeneeenes 31

Florida Power & Light Co. v. Lorion,

470 U.S. 729 (1985) .............sccccccceeeeeeeeeeees 20, 23, 34

FTC v. Warner Commce'ns Inc.,

742 F.2d 1156 (9th Cir. 1984)........................ 22, 25

Hollingsworth v. Perry,

ee Be GP cccnccncccccnsccccsncsccscensessoscsese 11,14

Judulang v. Holder,

TT csins snseupanssmmannmssinimnesudsneisiiid 21, 31

Kan. State Network, Inc. v. FCC,

720 F.2d 185 (D.C. Cir. 1983)..................ssccccessees 23

Kerr v. U.S. Dist. Ct. for the N. Dist. of

Cal.,

a Ce Ce ertnrececcesstnneenscsecenitintinns 11, 12, 22

Landry v. FDIC,

204 F.3d 1125 (D.C. Cir. 2000) ..........2.ccccccceeeeeeees 22

Mach Mining, LLC v. EEOC,

BED BCR, BG Goi ccccccccccccccsccvscccsvscopeveoseonsvens 19

Mistretta v. United States,

nn einiamnionnnnnaeedénina 21

Mohawk Indus., Inc. v. Carpenter,

GES US. 108 GOB) ..ccccccccoscesccessscesevee 13, 28, 30, 31

Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co.,

ee i itrtactccinrneinnnsicmcseniectantiines 15, 19

Nat'l Council of La Raza v. DOJ,

411 F.3d 360 (2d Cir. 2006) ........0c0cccccccecccccecesseees 28

San Luis Obispo Mothers for Peace v.

U.S. Nuclear Regulatory Comm'n,

789 F.2d 26 (D.C. Cir. 1986)....................0000+ 24, 35

In re Sealed Case,

121 F.3d 720 (D.C. Cit. 1987) .....ccccccccccccccccescceseee 22

Thompson v. U.S. Dep’t of Labor,

885 F.2d 551 (9th Cir. 1989)................... 14, 18, 19

United States v. Morgan,

SR Serene nne ree 23, 34

United States v. Nixon,

8 ee De ee 25, 31

United States v. Stevens,

so saeutetepninannsbeaiene 19

Webster v. Doe,

ERTS ne err oe eae TP 28

Will v. United States,

AR EE 10, 31

Statutes

Op PGI, sccccssecinicanentscestetomstestoeniinaneianaione 1

a sa cesinaieniomninasielidilabibidel 14, 24

Rules

sO cahcataeniliiaal 33, 35

i ee 11

Other Authorities

U.S. Dep’t of Justice, ENRD, Guidance

to Federal Agencies on Compiling the

Administrative Record (Jan. 1999)................ 15, 18

BRIEF IN OPPOSITION

This case is about whether 800,000 young adults

who came to the United States as undocumented im-

migrant children and have lived their entire lives here

will be subject to removal because the government de-

cided to rescind the Deferred Action for Childhood Ar-

rivals (DACA) program. Since 2012, DACA has al-

lowed these individuals, known as “Dreamers,” to ob-

tain an education, work, and contribute to our Nation.

The program has been an unqualified success, and

DACA recipients have relied on the federal govern-

ment’s repeated promises of protection from removal.

In September 2017, the federal government dra-

matically reversed course and announced that it

would terminate DACA as of March 5, 2018. The fate

of the Dreamers has captured the attention of the ad-

ministration, Congress, and millions of Americans

who worry about the devastating impact that termi-

nating DACA will have on families, schools, commu-

nities, and our economy.

Respondents brought this lawsuit to challenge the

government’s decision to end DACA. To evaluate that

challenge, the district court directed the government

to compile the record on which the decision was made,

as is required under the Administrative Procedure Act

(APA), 5 U.S.C. § 551 et seg. Surprisingly, the govern-

ment submitted an administrative record consisting

only of 14 publicly available documents—which the

government admits did not include all materials used

to make the decision. The district court therefore di-

rected the government to complete the administrative

record. The court did not order the government to

turn over documents willy nilly—rather, the court re-

viewed each additional document the government

supplied in camera and considered any claims of priv-

ilege, ultimately ordering production of less than half

of the additional documents. With respect to respond-

ents’ non-APA claims, the court ordered only limited

discovery, and it has not ordered the government to

comply with any specific discovery request.

The court of appeals reviewed the district court’s

work and concluded that the district court took “a rea-

sonable approach to managing the conduct and exi-

gencies of this important litigation.” Pet. App. 15a.

The government now seeks mandamus from this

Court to relieve it of its statutory obligation to compile

the full record used to make the momentous decision

to end DACA. The government also seeks to stop all

discovery on respondents’ non-APA claims. This

Court should not take those drastic steps. The courts

below applied settled principles of agency review—in-

cluding the principle that review occurs on the “whole

record,” meaning “the full administrative record that

was before the [agency] at the time [it] made its deci-

sion.” Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 420 (1971). And there is no reason for

this Court to prevent discovery before the district

court has even entered any order requiring produc-

tion.

Mandamus is particularly unwarranted because it

is the government—not the district court—that seeks

to upend the normal process of judicial review. The

government’s position boils down to an assertion that

the Executive, not the Judiciary, sets the rules for re-

view of administrative agency decisions. That is not

the law. And having a full record for judicial review

is especially important here, where the government

abruptly reversed position, to the detriment of the

800,000 people who have been relying on DACA to or-

der their lives. This Court should deny the petition

for a writ of mandamus and allow judicial review to

proceed.

OPINIONS BELOW

The order of the court of appeals denying a petition

for a writ of mandamus (Pet. App. la—20a) is not yet

reported in the Federal Reporter but is available at

2017 WL 5505730. The order of the district court re-

quiring completion of the administrative record (Pet.

App. 26a—44a) is not published in the Federal Supple-

ment but is available at 2017 WL 4642324. Two addi-

tional orders of the district court (Pet. App. 21a—25a,

45a—46a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on November 16, 2017. The jurisdiction of this Court

is invoked under 28 U.S.C. §§ 1651 and 1254(1).

STATEMENT

1. The DACA program gives young adults who

were brought to the United States as children the op-

portunity to lawfully live and work in this country.

Pet. App. 47a—51a. In particular, DACA permits qual-

ifying undocumented immigrants to obtain work au-

thorization and a social security number, open a bank

account or credit card account, purchase a home or

car, and travel overseas and lawfully return to the

United States. See D.Ct. Dkt. 121-1 at 1787-88’;

D.Ct. Dkt. 1-2 at 18-19; Compl. 4] 27—32.? Nearly

800,000 people have benefited from DACA since it was

established in 2012. Compl. { 1.

The Dreamers have relied on the promise of DACA

to further their education, serve in the U.S. military,

open businesses, start families, and make many other

life-changing decisions. See, e.g., id. {7 37, 41, 48—98.

Like so many other DACA recipients, the six individ-

ual respondents here—Dulce Garcia, Miriam Gonza-

lez Avila, Saul Jimenez Suarez, Viridiana Chabolla

Mendoza, Norma Ramirez, and Jirayut Latthivong-

skorn—embody the American Dream. LEach has

achieved remarkable success through hard work,

fierce determination, and incredible resilience. Id.

qi 4-9. DACA has created pathways for them to be-

come lawyers, medical professionals, and teachers—

professions chosen because of their deep commitment

to public service. Id. {7 53-55; 59-61; 72—75; 78-81;

85-89; 95-98. Without DACA, these individuals will

have to choose between the prospect of deportation—

leaving behind their families, communities, profes-

sions, and the only country most have ever known—

and returning to the shadows in an effort to avoid de-

portation. Id. J] 48—49, 56, 63, 76, 83, 91, 128.

The local, state, and federal governments have re-

alized many administrative, law enforcement, eco-

nomic, and public-safety benefits from DACA. Id.

' “1.Ct. Dkt.” refers to the electronic docket for Regents of the

University of California v. DHS, Case No. 3:17-cv-05211 (N.D.

Cal.).

2 “Compl.” refers to the complaint filed in Garcia v. United

States, Case No. 3:17-cv-05380 (N.D. Cal.).

¥ 19. In December 2016, then-Secretary of Homeland

Security Jeh Johnson said that “representations made

by the U.S. government, upon which DACA applicants

most assuredly relied, must continue to be honored.”

Id. J 41. After the change in administration, the gov-

ernment affirmed its commitment to DACA. In March

2017, then-Secretary of Homeland Security John

Kelly stated that DACA embodies a “commitment .. .

by the government towards the DACA person, or the

so-called Dreamer.” Jd. J 46. In April 2017, the Pres-

ident personally assured DACA recipients they could

“rest easy” and confirmed that the “policy of [his] ad-

ministration [is] to allow the dreamers to stay.” Id.

q 47.

2. On September 4, 2017, the administration ab-

ruptly reversed course. The Attorney General sent a

one-page letter to Acting Secretary of Homeland Se-

curity Elaine Duke, summarily concluding that

“DACA was effectuated by the previous administra-

tion through executive action, without proper statu-

tory authority” and “was an unconstitutional exercise

of authority by the Executive Branch.” Jd. J 118. The

next day, he announced the government’s decision to

end DACA. Id. J 119.

Acting Secretary Duke then issued a memoran-

dum formally rescinding DACA. Pet. App. 6la—69a.

Her memo referred to the Attorney General’s letter

and stated that the threat of litigation prompted the

decision to terminate DACA. See id. at 67a. It did not

analyze the purported litigation risk (10 States had

threatened to sue the government, but 20 States op-

posed that effort, Compl. 79 115-16), and it did not

weigh DACA’s widespread benefits against the many

harms that would befall DACA recipients, their fami-

lies and employers, and the national economy if DACA

were rescinded. Acting Secretary Duke then released

a statement where she said—directly contrary to the

President’s and the prior Secretary’s statements—

that “DACA was fundamentally a lie.” D.Ct. Dkt. 121-

2 at 1869.

3. Given the government’s change in position

and the certain harms that will result from the Acting

Secretary's decision, respondents sued the federal

government and various federal officials. Respond-

ents challenge DACA’s termination on constitutional,

statutory, and equitable grounds. In essence, they

seek basic judicial review of an Executive Branch de-

cision that will hurt 800,000 DACA recipients, as well

as their families and communities, in profound and ir-

reversible ways.

The district court immediately took steps to ensure

that the litigation would proceed in an orderly and

timely manner. In an initial case management con-

ference, the court discussed how to manage the case

in light of the government’s March 2018 deadline for

rescinding DACA. Stay Opp. Add. 7-8. The govern-

ment agreed that getting “to final judgment quickly

makes a lot of sense in this case” and said that it was

“prepared to brief this case quickly.” Id. at 18.

The court accordingly selected October 6 as the

deadline for producing the administrative record and

November 1 for filing dispositive motions. /d. at 18,

51. The court advised the government that the admin-

istrative record should contain all materials used in

the decision to rescind DACA, not just “the select stuff

that supports your side.” /d. at 17-18. The govern-

ment agreed to produce the record by the deadline. /d.

at 17.

As for discovery, the district court decided that, to

expedite the litigation, the government “should re-

spond to [respondents’] discovery requests if they’re

reasonable.” Id. at 22. The court assured the govern-

ment that if discovery “gets going too far sideways, I'll

put a stop to it.” Ibid. The government did not object

to discovery but instead proposed limits on the num-

ber of discovery requests allowed. Id. at 55. The court

agreed and limited respondents’ collective discovery to

20 interrogatories, 20 requests for production, and a

“reasonable number” of depositions. Pet. App. 22a.

Respondents have served discovery requests that

comply with those limits. The government made six

witnesses available for depositions but has not re-

sponded to the written interrogatories or produced

any responsive documents. Notably, the government

has not challenged any specific discovery request in

the district court, and the district court has not issued

any order compelling the government to provide dis-

covery.

4. The government produced an administrative

record—an exceedingly sparse one. It consisted of

only 14 publicly available documents, mostly judicial

opinions, for a total of 256 pages. D.Ct. Dkt. 64, 64-1.

It included only some of the documents that Acting

Secretary Duke personally reviewed, and no docu-

ments considered by her direct advisors.

That limited record was surprising, because the

fate of the Dreamers is a national issue affecting

800,000 people, and various administration officials

(including the President) have publicly expressed

views about it. Respondents therefore asked the dis-

trict court to require the government to complete the

administrative record, including with documents con-

sidered by the Acting Secretary's advisors. D.Ct.

Dkt. 65.

Sensitive to potential claims of privilege, the dis-

trict court decided to review in camera any documents

for which the government claimed privileges, includ-

ing “emails, internal memoranda, and communica-

tions with the Justice Department on the subject of

rescinding DACA.” D.Ct. Dkt. 67 at 1. The govern-

ment submitted a privilege log listing 84 new docu-

ments—again, only documents considered by the Act-

ing Secretary herself. Pet. App. 40a; Pet. 21, 29.

After in camera review, briefing, and argument,

the district court partially granted respondents’ mo-

tion to complete the administrative record. Pet. App.

26a—44a. The court found “clear evidence” that the

government had failed to include in the proffered rec-

ord “documents that were considered, directly or indi-

rectly, by DHS in deciding to rescind DACA.” Id. at

3la. The court explained that the “government’s in

camera submission confirms that [the Acting Secre-

tary) did receive substantial DACA input” from oth-

ers. Id. at 34a. The court also held that the govern-

ment waived attorney-client privilege by placing gov-

ernment officials’ legal analysis directly at issue; liti-

gation risk was the sole reason the Acting Secretary

cited in terminating DACA. Id. at 39a. The court ac-

cepted many of the government’s claims of privilege,

completely withholding 49 documents and partially

withholding another two. Id. at 40a, 43a. It also

promised that when the government provides the

complete record, the court will review in camera any

documents for which the government claims privilege.

Id. at 43a.

5. The government filed an emergency manda-

mus petition with the court of appeals, which the court

denied. Pet. App. la—20a. The court of appeals con-

cluded that the district court took “a reasonable ap-

proach to managing the conduct and exigencies of this

important litigation.” Jd. at 15a. The court agreed

that respondents had rebutted “the presumption of

regularity that attaches to the government’s proffered

record,” observing that “the notion that the head of a

United States agency would decide to terminate a pro-

gram giving legal protections to roughly 800,000 peo-

ple based solely on 256 pages of publicly available doc-

uments is not credible.” Jd. at 6a—7a (footnote omit-

ted). The court also rejected the government’s broad

claim of privilege, explaining that there is no “categor-

ical bar against requiring DHS to either include White

House documents in a properly-defined administra-

tive record or assert privilege individually as to those

documents.” Jd. at 12a—13a.

The government also had sought an order preclud-

ing all discovery on respondents’ non-APA claims.

C.A. Dkt. 1-2 at 1, 30. But the district court had not

ordered the government to produce anything, and so

the court of appeals concluded that discovery issues

“are not properly before [the Court] at this time” and

therefore “d[id] not address them.” Pet. App. 2a—3a

n.1; see also Resp. C.A. Br. 1-2, 28—29.

Judge Watford dissented. Pet. App. 16a—20a. Alt-

hough he recognized that “a policy shift of th[{is] mag-

nitude presumably would not have been made without

extensive study and analysis,” id. at 16a, he believed

that respondents had not made a sufficient showing to

justify adding to the proffered record, id. at 17a—19a.

6. The district court ordered defendants to file

the “complete administrative record” by November 22.

D.Ct. Dkt. 188 at 1. The government sought an emer-

gency stay pending the filing of its petition in this

Court, first in the court of appeals (which dismissed

the motion on jurisdictional grounds, C.A. Dkt. 42)

and then in the district court, D.Ct. Dkt. 191. The dis-

trict court declined to stay its order but extended the

deadline for filing the administrative record to Decem-

ber 22 and stayed discovery until that date. D.Ct.

Dkt. 193, 193-1.

The government filed a stay motion in this Court,

which was granted over the objection of four Justices.

ARGUMENT

The government seeks truly extraordinary relief:

mandamus to overturn the district court’s order to

provide the complete administrative record and to

preclude all discovery on the non-APA claims in the

case. To justify mandamus, the government must es-

tablish that the district court took an action so far out-

side its normal role that the only option is for this

Court to intervene. See Will v. United States, 389 U.S.

90, 95 (1967). The government has not satisfied that

high burden in this case. Nor has the government

demonstrated that certiorari is warranted to review

the district court’s fact-bound application of settled

principles of administrative law. The petition there-

fore should be denied.

I. The government has failed to justify manda-

mus

“The remedy of mandamus is a drastic one, to be

invoked only in extraordinary situations.” Kerr v.

U.S. Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394, 402

(1976). To establish a basis for mandamus, the gov-

ernment must show that (1) it has no other adequate

means to obtain relief; (2) its right to mandamus relief

is “clear and indisputable”; and (3) mandamus is “ap-

propriate under the circumstances.” Hollingsworth v.

Perry, 558 U.S. 183, 190 (2010); see also S. Ct. R. 20.1.

None of those requirements has been met.

A. The government has adequate means to

obtain relief from the lower courts

The government makes essentially three argu-

ments regarding alternative avenues for relief. Each

is mistaken.

First, the government contends (Pet. 18) that com-

plying with the district court’s orders will be a burden.

But the government already has identified the docu-

ments that potentially will be added to the adminis-

trative record. It made available (for in camera re-

view) 84 additional documents over which it asserted

claims of privilege. See D.Ct. Dkt. 71-2. And it iden-

tified approximately 6,000 additional documents to re-

view for possible inclusion in the administrative rec-

ord. Stay Appl. 14.* The government told respondents

8’ That is consistent with the size of other administrative rec-

ords underlying important decisions. E.g., Chem. Mfrs. Ass’n v.

EPA, 870 F.2d 177, 184 (5th Cir. 1989); Citizens for Smart

Growth v. Sec’y of Dep’t of Transp., 669 F.3d 1203, 1208 (11th

Cir. 2012).

it could compile those documents in three weeks. Stay

Opp. Add. 74.

The relevant question is not burden but whether

the government has avenues other than mandamus in

this Court to test the district court’s case-manage-

ment orders. It plainly does. The district court’s most

recent order denied a stay and ordered the govern-

ment to produce the record by December 22. If the

government wishes not to comply, it can seek an ex-

tension of time in the district court or seek review of

the order in the court of appeals. See Pet. App. 2a. To

the extent the government complains about timing,

that is attributable to the government’s unilateral de-

cision to terminate DACA in March 2018. The gov-

ernment created the exigency here.

Second, the government claims (Pet. 18) that, ab-

sent mandamus, “various privileges . . . will have been

breached.” That ignores the district court’s in camera

document-by-document evaluation of claims of privi-

lege. See, e.g., Kerr, 426 U.S. at 405-06 (“[I)n camera

review is a highly appropriate and useful means of

dealing with claims of governmental privilege.”). The

district court did not just order the government to

turn over documents; it requested a privilege log, care-

fully reviewed the documents, and protected more

than half of them from disclosure. And for future fil-

ings, the district court has pledged to review any doc-

uments for which the government claims privilege in

camera, Pet. App. 43a; if the court orders production,

the government may seek review in the court of ap-

peals.

Significantly, the government has not challenged

any particular privilege ruling of the district court.

See Pet. App. 12a n.8 (government “provided little in

the way of argument regarding the specific documents

ordered disclosed by the district court”). If the govern-

ment disagrees with a privilege ruling, it should ex-

plain why—to the court of appeals in the first in-

stance—rather than levying broad and unfounded at-

tacks on the district court.

Third, the government asserts (Pet. 18) that it will

be subject to unwarranted discovery. That claim is

particularly far-fetched, because the district court has

not ordered the government to comply with any discov-

ery request. All the court has done is to place limits on

discovery, at the government’s request, and ask the

government to respond to discovery requests “if

they’re reasonable.” Stay Opp. Add. 22. The govern-

ment has voluntarily produced six witnesses for depo-

sition (who refused to answer many questions on

grounds of privilege) and has yet to respond to any of

respondents’ discovery requests. If the government

objects to a particular request, the district court can

consider the reasons for the objection and decide

whether to enter a protective order, quash the discov-

ery request, or order compliance. Those types of rul-

ings are well within the district court’s purview. See,

e.g., Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,

106 (2009). If the government dislikes the court’s rul-

ing, it can seek review from the court of appeals.

What it cannot do is enlist this Court to preemptively

usurp the district court’s authority to manage discov-

ery based only on speculation.

B. The government does not have a clear and

indisputable right to mandamus relief

The government is required to show that its right

to relief is “clear and indisputable.” Perry, 558 U.S. at

190. It cannot do so, because it seeks to deviate from

the normal rules of judicial review that were followed

by the courts below.

1. Completion of the administrative rec-

ord

a. The government contends (Pet. 18) that the

district court clearly and indisputably erred in order-

ing it to produce the full administrative record under-

lying the decision to rescind DACA. That is wrong.

It is well established that review under the APA

must be based on the “whole record,” 5 U.S.C. § 706,

meaning “the full administrative record that was be-

fore the [agency] at the time [it] made [its] decision,”

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 420 (1971). That includes “all materials that

were directly or indirectly considered by agency deci-

sion-makers,” including “evidence contrary to the

agency's position.” Thompson v. U.S. Dep’t of Labor,

885 F.2d 551, 555 (9th Cir. 1989); see Bar MK Ranches

v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993). Provid-

ing that record will allow the reviewing court to eval-

uate whether the agency “relied on [impermissible]

factors,” “entirely failed to consider an important as-

pect of the problem,” or “offered an explanation for its

decision that runs counter to the evidence before the

agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Until recently, the government accepted that set-

tled understanding: Longstanding U.S. Department

of Justice guidance (which the government rescinded

the day it filed a mandamus petition in the court of

appeals) said that the administrative record “consists

f all documents and materials directly or indirectly

considered by the agency decision maker in making

the challenged decision,” including documents “not

specifically considered” by the decisionmaker herself.

See U.S. Dep’t of Justice, ENRD, Guidance to Federal

Agencies on Compiling the Administrative Record

(Jan. 1999), available at http://environment.transp-

ortation.org/pdf/programs/usdoj_guidance_re_admin_

record_prep.pdf (last visited Dec. 13, 2017) (1999 DOJ

Guidance).*‘

Although courts initially must presume that an

agency’s proffered record is complete, this presump-

tion can be rebutted by “clear evidence to the con-

trary.” Bar MK, 994 F.2d at 740. An agency “may not

unilaterally determine what constitutes the adminis-

trative record” without any court review. Id. at 739.

Such a rule would make judicial review toothless.

b. Here, respondents established a significant

basis for the courts below to conclude that the admin-

istrative record produced by the government was in-

complete.

First, as the court of appeals recognized, it is fa-

cially implausible that the government made a deci-

sion that affects the fate of 800,000 people and has

been the subject of widespread national attention

* The government (Pet. 25 n.5) argues that its guidance is not

binding, but that misses the point, which is that the government,

like everyone else, recognized these established principles of ad-

ministrative law, and the government’s (newfound) disagree-

ment with that understanding does not justify mandamus.

based only on 14 publicly available documents. Pet.

App. 6a—7a (it is “not credible” that “the head of a

United States agency would decide to verminate a pro-

gram giving legal protections to roughly 800,000 peo-

ple based solely on 256 pages of publicly available doc-

uments”); id. at 16a (Watford, J., dissenting) (making

the same point).

Second, the government’s own representations

demonstrated that the Acting Secretary considered

more than 14 documents. The government identified

(and claimed priv lege on) 84 more documents. D.ct.

Dkt. 71-2. The government also acknowledged that

the Acting Secretary considered other non-privileged

documents, including communications about DACA

with state attorneys general and “media articles.”

Pet. App. 36a.

Third, certain additional documents are obviously

missing from the record. For example, the sole justi-

fication for the decision was litigation risk, see Pet.

App. 66a—yet the government included only the letter

received from the 10 States that opposed DACA, and

not the one from the 20 States that support DACA

(which provided legal analysis to support their view).

D.Ct. Dkt. 64-1. The proffered record contained no

“materials analyzing the [potential] lawsuit.” Pet.

App. 35a. Further, despite public pronouncements

about the President’s and Attorney General’s roles in

making this decision, the record contained no docu-

ments (public or otherwise) from the White House and

only one (public) document from DOJ. Pet. App. 33a—

34a.

Fourth, the government’s change in position un-

dercuts its assertion that only 14 documents informed

the decision to terminate DACA. In APA review,

courts ordinarily require the government to “display

awareness that it is changing position” and “show that

there are good reasons for the new policy.” FCC v. Fox

Television Stations, Inc., 556 U.S. 502, 515 (2009) (em-

phasis omitted). Yet nothing in the proffered record

explains the administration’s about-face, from the

President’s and then-Secretary Kelly’s promises to

protect DACA recipients in spring of 2017 to the Act-

ing Secretary’s determination in September 2017 that

DACA was “a lie.” Pet. App. 34a—35a. There likewise

was no discussion of “factors militating in favor and

against this switch in policy.” Jd. at 35a. An explana-

tion is particularly warranted because, after the Act-

ing Secretary announced her decision, the President

weighed in, suggesting—contrary to the prior an-

nouncement—that he would continue to protect the

Dreamers. D.Ct. Dkt. 1 at 11 (“Congress now has 6

months to legalize DACA .. . If they can’t, I will revisit

this issue!”).

Finally, the government fully admits that it is tak-

ing an exceedingly narrow view of the administrative

record. It says that it need only include documents

the Secretary “personally viewed” (Pet. App. 35a)—

even though it previously acknowledged, in line with

court of appeals precedent, that the record includes all

material considered “directly or indirectly” by the de-

cisionmaker. 1999 DOJ Guidance 1-2; see also

Thompson, 885 F.2d at 555. Everyone knows that su-

pervisors make decisions based on the work and rec-

ommendations of subordinates. That is true for large

administrative agencies, especially when they are

considering issues on which many parts of the Execu-

tive Branch have views. The material considered by

a decisionmaker’s advisors necessarily informs the

agency’s decision and properly constitutes part of “the

evidence on which it was based.” Fed. Power Comm’n

v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326,

331 (1976) (citation omitted).

Accordingly, the district court appropriately di-

rected the government to discharge its obligation un-

der the APA to provide the complete administrative

record.

c. The district court’s application of bedrock

principles of administrative agency review cannot

constitute “clear and obvious” error. The court’s direc-

tion to the government to compile the “whole record”

is consistent with the APA, Supreme Court and circuit

law interpreting it, and the government’s own (prior)

guidance.

The government’s position essentially is that the

Executive, and not the Judiciary, defines the record to

be used for judicial review of administrative agency

action. But the government provides no authority for

that sweeping proposition, and settled law is to the

contrary. See Thompson, 885 F.2d at 555; Bar MK,

994 F.2d at 739. This Court has been quite skeptical

of similar assertions of unilateral agency authority.

See, e.g., Mach Mining, LLC v. EEOC, 135 S. Ct. 1645,

1652 (2015) (“Absent [judicial] review, the Commis-

sion’s compliance with the law would rest in the Com-

mission’s hands alone.”); see also United States v. Ste-

vens, 559 U.S. 460, 480 (2010).

In the government’s view (Pet. 24), so long as “the

agency’s rationale is reasonable and the record pre-

sented supports that rationale, then the reviewing

court’s inquiry is at an end”—even when the agency’s

proffered administrative record is “not credible,” Pet.

App. 7a., and the agency’s decision “will profoundly

disrupt the lives of hundreds of thousands of people,”

Pet. App. 16a (Watford, J., dissenting). But a court

cannot effectively evaluate whether an agency’s expla-

nation for its decision “runs counter to the evidence

before the agency,” State Farm, 463 U.S. at 43, when

the agency presents only a selective record, one that

excludes “evidence contrary to the agency’s position,”

Thompson, 885 F.2d at 555. Nor can the reviewing

court evaluate whether the agency “has relied on fac-

tors which Congress has not intended it to con-

sider.” State Farm, 463 U.S. at 43. The only way for

courts to ascertain whether an agency has relied on

impermissible factors or disregarded evidence before

it is to analyze all of the materials that were before

the agency decisionmaker.

Moreover, the district court here did not “go be-

yond the agency record” by “requirling] the adminis-

trative officials who participated in the decision to

give testimony explaining their action,” which would

have required a “‘showing of bad faith or improper be-

havior.” Pet. 20 (quoting Overton Park, 401 US. at

420). Rather, the court found that “the full adminis-

trative record”—i.e., what “was before the Secretary

at the time he made his decision,” Overton Park, 401

U.S. at 420—had never been presented in the first

place. See Pet. App. 8a.° Similarly, the government’s

reliance (Pet. 20) on the principle that the reviewing

5 Respondents have argued that the government acted in bad

faith in refusing to provide the whole administrative record, but

that issue has not yet been resolved by the district court. See,

e.g., D.Ct. Dkt. 111 at 29.

court “appllies|] the appropriate APA standard of re-

view . . . based on the record the agency presents to

the reviewing court,” Florida Power & Light Co. v. Lo-

rion, 470 U.S. 729, 743-44 (1985), does not aid the

government; that decision recognized that a court

must consider the complete and actual “record before

the agency” at the time of its decision, id. at 744, not

some partial record chosen by the government.

The government’s citation (Pet. 17) to Cheney v.

United States District Court for the District of Colum-

bia, 542 U.S. 367 (2004), also misses the mark. This

case is not about discovery specifically targeted at the

Vice President that “asks for everything under the

sky,” id. at 387; instead, respondents asked the gov-

ernment to fulfill its obligation under the APA to com-

pile the materials used to make the decision to rescind

DACA. As the court of appeals explained here, there

is no reason to believe that “either [the President’s]|

documents or those of the Vice President would fall

within the completed administrative record as or-

dered by the district court.” Jd.* The government

seeks a change in the law to narrow the record on ad-

ministrative review. But that is not what mandamus

is for—mandamus is for remedying an error that is

clear and indisputable under existing law.

At base, the government’s position is the Executive

Branch may control the record on review in APA

cases, thereby circumscribing judicial review of its

® The government also asserts (Pet. 20) that the decision to

terminate DACA is “entirely unreviewable” under 8 U.S.C.

§ 1252(g). That is an open issue not yet considered by the courts

below. See D.Ct. Dkt. 205 at 9-11. This Court should not reach

out to decide it in the first instance.

own actions. That view strikes at the heart of separa-

tion of powers. Accepting the government’s view

would severely limit the Judiciary’s critical role “in

ensuring that agencies have engaged in reasoned de-

cisionmaking.” Judulang v. Holder, 565 U.S. 42, 53

(2011). Like other limits on Executive Branch action,

administrative agency review “safeguard(s] against

the encroachment or aggrandizement of one branch at

the expense of the other.” Mistretta v. United States,

488 U.S. 361, 382 (1989) (internal quotation marks

omitted). The government’s position boils down to

“trust us.” But the government’s contradictory state-

ments and facially implausible record submission pro-

vides ample reason not to do so.

2. In camera review of documents for

which the government claimed deliber-

ative-process privilege

The government asserted deliberative-process

privilege over 84 documents, and the district court re-

viewed them in camera and considered claims of priv-

ilege. Pet. App. 40a, 43a. The government now con-

tends (Pet. 27, 31-32) that the court so egregiously

erred in making those determinations that manda-

mus is warranted. Not so.

In response to the government’s claim of privilege,

the district court did what district courts do all the

time. It followed the Court’s guidance that “in camera

review is a highly appropriate and useful means of

dealing with claims of governmental privilege.” Kerr,

426 U.S. at 405-06. And it went document-by-docu-

ment to carefully evaluate claims of privilege. The

court did so even though the goverrment’s privilege

log failed to properly substantiate its claims of privi-

lege. See Landry v. FDIC, 204 F.3d 1125, 1135 (D.C.

Cir. 2000) (setting out requirements for claiming de-

liberative-process privilege). Contrary to the govern-

ment’s assertion (Pet. 17, 31), the court did not treat

the government’s deliberative materials in a whole-

sale, “sweeping,” and “dismissive” manner.

In conducting its review, the district court applied

the established deliberative-process balancing test,

Pet. App. 40a, under which a “litigant may obtain de-

liberative materials if his or her need for the materials

and the need for accurate fact-finding override the

government’s interest in non-disclosure,” FTC v.

Warner Comme’ns Inc., 742 F.2d 1156, 1161 (9th Cir.

1984); see also In re Sealed Case, 121 F.3d 729, 737

(D.C. Cir. 1997). After evaluating each of the 84 doc-

uments using that standard, the district court found

49 documents privileged in whole and two documents

privileged in part. Pet. App. 40a, 43a. The district

court relied on existing law, and its individual resolu-

tions of deliberative-process claims using that law do

not come close to clear and indisputable error.

Against this established authority, the govern-

ment urges the Court to adopt a “categorical|]” privi-

lege against disclosure of all “pre-decisional” docu-

ments, citing case law concerning inquiry into deci-

sionmakers’ “mental processes.” Pet. i, 27, 30. The

cases the government cites are inapposite; they con-

cern attempts to obtain testimony from decisionmak-

ers explaining their actions after a decision had been

made or a complete record was created. See Overton

Park, 401 U.S. at 420 (post-decision testimony of deci-

sionmakers “explaining their action”); United States

v. Morgan, 313 U.S. 409, 422 (1941) (testimony of Sec-

retary of Agriculture regarding process by which he

“reached [his] conclusions”); see also, e.g., Checkosky

v. SEC, 23 F.3d 452, 487-89 (D.C. Cir. 1994); Kan.

State Network, Inc. v. FCC, 720 F.2d 185, 191 (D.C.

Cir. 1983). Because such testimony did not exist when

the agency made its decision, it necessarily could not

be part of the administrative record. See Florida

Power, 470 U.S. at 743 (“[T]he focal point for judicial

review should be the administrative record already in

existence, not some new record made initially in the

reviewing court.”) (citation omitted). Decisions plac-

ing limits on post-decision inquiries into the deci-

sionmaker’s mental processes do not justify a rule that

all pre-decisional deliberative materials be excluded

San Luis Obispo Mothers for Peace v. U.S. Nuclear

Regulatory Comm’n, 789 F.2d 26, 44-45 (D.C. Cir.

1986), addressed pre-decisional deliberations of the

members of a multimember agency. But it is inappo-

site, because the record at issue—a transcript of a

closed meeting of the agency—represented the “collec-

tive mental processes of the agency.” Id. at 44. The

government has made no showing that the 35 docu-

ments to be disclosed in this case meet that high bar—

let alone that they clearly and indisputably do.’

’ Depositions of even high-ranking agency officials are appro-

priate in certain circumstances, such as where “the official has

first-hand knowledge related to the claim being litigated.” Bogan

v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007). In light of

this authority, the magistrate judge authorized a limited deposi-

tion of Acting Secretary Duke—a decision that the government

has yet to challenge in the district court. See D.Ct. Dkt. 94 at 1;