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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2017

## Text

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

i
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.

rT

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

iv

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

v

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

1
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

2

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

3

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

4

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.).

5

¥ 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

6

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

7

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

8

(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

9

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

10

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.

11

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).

12

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.

13

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.

14

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

15

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.

16

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

17

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

18

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

19

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.

20

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.

21

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

22

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

23

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;
see also D.Ct. Dkt. 88 at 1-5 and n.3.

24

Under existing law, the deliberative-process privi-
lege is a qualified one. The government now seeks to
convert it to an absolute privilege—not with the ben-
efit of lower court decisions, briefing, and argument,
but on mandamus review, which is limited to correct-
ing egregious and obvious errors. If, as the govern-
ment suggests, the record must omit all pre-decisional
“emails, letters, memoranda, notes, media items,
opinions and other materials” considered by the Act-
ing Secretary, the district court could not conduct ef-
fective APA review, see 5 U.S.C. § 706, and any re-
viewing court (including this Court) would be simi-
larly hamstrung. For that reason, federal agencies
routinely produce, and courts regularly review, these
types of pre-decisional documents. See, e.g., Epsilon
Elecs., Inc. v. U.S. Dep’t of the Treasury, 857 F.3d 913,
928 (D.C. Cir. 2017). Until quite recently, the Depart-
ment of Justice agreed, advising federal agencies to
include these documents in their administrative rec-
ords. See pp. 14—15, supra.

The government’s sweeping attempt to shield all
pre-decisional materials, if accepted, would seriously
intrude on the role of the courts. See United States v.
Nixon, 418 U.S. 683, 703—13 (1974) (categorical with-
holding of Executive Branch documents seriously im-
pairs Judiciary’s role). That is why the deliberative-
process privilege is a qualified one. Courts appropri-
ately assess whether the “need for accurate fact-find-
ing override|s] the government’s interest in non-dis-
closure,” Warner, 742 F.2d at 1161, rather than treat-
ing the government’s mere assertion of deliberative-
process privilege as sufficient to withhold any deliber-
ative document.

25

3. Evaluation of executive privilege and
attorney-client privilege claims

The government’s complaints (Pet. 31) about the
district court’s treatment of executive privilege and
attorney-client privilege are unfounded.

a. The government contends (Pet. 31) that the
district court “gravely erred by ordering disclosure of
various White House documents.” This argument
concerns four documents where the court ordered in-
clusion in the record over the government’s claim of
executive privilege. Pet. App. 43a. They are docu-
ments that, to this point, only the government and the
district court have seen. See ibid.

First, the government failed to present any specific
argument about those documents to the court of ap-
peals (or to the district court since its initial ruling).
See Pet. App. 12a n.8. Instead, the government
lumped all of the district court’s rulings together. C.A.
Dkt. 1-2 at 22-23. As a result, the court of appeals
concluded that it did not have sufficient information
to evaluate disclosures of specific documents. Pet.
App. 12a n.8. But the court of appeals confirmed that
the government could challenge specific disclosures in
that court. If the government has arguments to make
about particular documents, it should present those
arguments to the courts below. The district court has
already sustained a majority of the government’s priv-
ilege claims under this procedure, and the govern-
ment will have the same opportunity to make its case
for privilege (both in the district court and court of ap-
peals) moving forward.

Notably, the mandamus petition to this Court is
the first time that the government ever suggested that

26

one of the 84 documents provided to the district court
for in camera review was a “memorandum from the
White House Counsel to the President.” Pet. 31-32.
In the courts below, the government described that
document as a “Draft White House memorandum re-
garding litigation related to DACA,” D.Ct. Dkt. 71-2
at 5, and the government’s privilege log (all that re-
spondents are allowed to see) indicated that the docu-
ment was located in the Acting Secretary’s files, not
White House files, ibid. Apparently neither the au-
thor nor the recipient of the memorandum was obvi-
ous from the document itself, because the district
court concluded, after in camera review, that it did not
“fall within the executive privilege.” Pet. App. 40a n.7.
If the government has additional information to share
about this document (or any other document for which
it claims privilege), it should share it with the district
court.

The district court’s privilege determinations do not
implicate the concerns this Court expressed in
Cheney. The government claimed executive privilege
as to seven of the 84 documents in the Acting Secre-
tary’s custody and the district court ordered that only
four be included in the administrative record. See Pet.
App. 43a; see also D.Ct. Dkt. 71-2. The government
has not established that claiming privilege over these
four documents imposes the sort of burdens at issue
in Cheney, and so the courts below do not have the in-
formation required do the balancing analysis de-
scribed in that case. The government should be re-
quired to substantiate its assertions of burden in the
lower courts to allow reasoned analysis of the issue,
rather than circumventing the process through man-
damus in this Court.

27

b. The government attacks the district court’s
conclusion that it waived attorney-client privilege to
the extent that it placed attorney-client communica-
tions “at issue” by using litigation risk as the sole jus-
tification to rescind DACA. Pet. App. 37a. But that
ruling follows well-settled law that “[t]he privilege
which protects attorney-client communications may
not be used both as a sword and a shield.” Chevron
Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir.
1992). The sole justification the Acting Secretary gave
for rescinding DACA was “litigation risk”—the
“sword” on which the government relies to terminate
a program that has benefited 800,000 individuals. Yet
the government has prevented any analysis of that
“litigation risk” by withholding the relevant docu-
ments on attorney-client privilege grounds.

Under the circumstances of this case, the district
court correctly found waiver of the attorney-client
privilege. See, e.g., Nat’l Council of La Raza v. DOJ,
411 F.3d 350, 361 (2d Cir. 2005) (DOJ cannot make
repeated public references to internal OLC legal anal-
ysis “when it serves the Department’s ends but claim
the attorney-client privilege when it does not”). And
the court appropriately rejected the government’s al-
ternative argument—that “assessing [the] correctness
lof the Acting Secretary’s legal judgment} would not
depend on the ‘legal research’ used to reach that con-
clusion.” Pet. 32; see also Pet. App. 38a. As the dis-
trict court explained, the government’s litigation risk
“would heavily turn on the underlying legal analysis
so far withheld from view,” and the “the reasonable-
ness of the Secretary’s legal rationale” also depends,
in part, on “how consistent the analysis has been in
the runup to the rescission.” Pet. App. 38a.

28

The government identifies no sound basis to sec-
ond-guess the results of the district court’s in camera
review of the claimed privileged documents, much less
to conclude that the court committed error so extreme
that it would justify mandamus. This Court ordinar-
ily does not review interlocutory privilege decisions,
including decisions involving the attorney-client priv-
ilege. See Mohawk Indus., 558 U.S. at 108. Even in
cases involving discovery into important matters of
national security, this Court has trusted district
courts to evaluate claims of privilege and courts of ap-
peals to review those rulings. See, e.g., Webster v. Doe,
486 U.S. 592, 604 (1988) (explaining that district
courts have considerable “latitude to control any dis-
covery process which may be instituted so as to bal-
ance respondent’s need for access to proof which
would support a colorable constitutional claim against
the extraordinary needs of the CIA for confidentiality
and the protection of its methods, sources, and mis-
sion”). If that latitude to evaluate documents and bal-
ance competing concerns is available even in the most
sensitive national-security cases, it should be availa-
ble here as well, where the decision will indisputabl:’
harm hundreds of thousands of DACA recipients.

4. Discovery

The government argues (Pet. 18) that the district
court clearly and indisputably erred in “authorizing
broad discovery.” That is not a fair characterization
of the district court’s rulings. The district court has
not ordered the government to produce any docu-
ments in discovery. All it has done is enter an initial
discovery order, which (at the government’s request)
limited the number of discovery requests respondents
could make to the government. Pet. App. 2la—25a.

29

The court also asked the government to go ahead and
respond to discovery requests “if they’re reasonable,”
Stay Opp. Add. 22, in light of the expedited nature of
the litigation, id. at 17-18, 40. And the court assured
the government that if discovery “gets going too far
sideways, I'll put a stop to it.” Jd. at 22.

Apparently unsatisfied with that modest ap-
proach, the government now seeks to prevent all dis-
covery on respondents’ non-APA claims. But there is
nothing erroneous, let alone clearly and indisputably
erroneous, about the district court allowing focused
discovery to proceed under these circumstances. See
Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36
(1980) (per curiam); FedEx Ground Package Sys., Inc.
v. U.S. Judicial Panel on Multidistrict Litig., 662 F.3d
887, 891 (7th Cir. 2011). District courts have wide dis-
cretion to enter discovery and similar case-manage-
ment orders, and the district court carefully and ap-
propriately exercised that discretion here.

This Court should be loath to circumvent the dis-
trict court’s authority to manage discovery, especially
at such an early point in the process. See Mohawk
Indus., 558 U.S. at 108-10. There is simply no reason
for this Court to step in before t..e government has
even objected to any discovery request or been re-
quired to produce any document.

C. Mandamus is not appropriate under the
circumstances of this case

1. The government argues (Pet. 33) that manda-
mus is necessary to prevent “unwarranted intrusions”
into “the highest levels of the Executive Branch.” But
the district court did not order such intrusions. When

30

the court required disclosure, it did so because it con-
cluded that disclosure was warranted after evaluating
the government’s interests using the deliberative-pro-
cess balancing test. Pet. App. 40a, 43a. If any Branch
of government faces “unwarranted intrusions,” it is
the Judiciary, whose role will be severely circum-
scribed if the Executive gets its way in this case. See
Boumediene v. Bush, 553 U.S. 723, 765 (2008); Nixon,
418 U.S. at 707, 712. The Judiciary can only carry out
its “important” role in reviewing agency action under
the APA, Judulang, 565 U.S. at 53, if it has “the full
administrative record that was before the Secretary,”
Overton Park, 401 U.S. at 420.

2. Granting mandamus in this case would ex-
pand the writ well beyond its traditional understand-
ing. This Court has “generally denied review of pre-
trial discovery orders.” Mohawk Indus., 558 U.S. at
108 (internal quotation marks omitted); see Will, 389
U.S. at 96. That is for good reason—for our judicial
system to work, district courts must have discretion to
manage their dockets and control the pace and flow of
litigation, including the timing and number of discov-
ery requests. See Firestone Tire & Rubber Co. v. Ris-
jord, 449 U.S. 368, 374 (1981); see also Allied Chem..,
449 US. at 36.

Further, mandamus “indisputably contributes to
piecemeal litigation.” Allied Chem., 449 U.S. at 35;
see Bankers Life & Cas. Co. v. Holland, 346 U.S. 379,
383 (1953) (cautioning against an interpretation
where “every interlocutory order” could be reviewed
using mandamus). And mandamus is a particularly
heavy-handed way to correct a district court’s trial-
management decisions. It “has the unfortunate con-
sequence of making a district court judge a litigant,”

31

Allied Chem., 449 U.S. at 35—an outcome that should
be reserved for only the most egregious cases (not this
one).

3. The balance of the equities weighs strongly
against mandamus. If the Court denies mandamus,
then the Executive’s decision to end DACA will be sub-
ject to ordinary judicial review. The government will
have to assert and litigate claims of privilege and wai‘
to challenge discovery until the court actually enters
an order requiring production. Those are not extraor-
dinary burdens; they are how the legal system is sup-
posed to work. Here, the government has already told
the district court that it could complete the adminis-
trative record in three weeks, Stay Opp. Add. 74; the
district court will use in camera review to assess any
claims of privilege, Pet. App. 43a; and the court of ap-
peals stands ready to review any adverse privilege
rulings—as soon as the government provides argu-
ment about the specific documents ordered disclosed,
Pet. App. 12a n.8. Under the circumstances, any
harms facing the government are speculative at best.

If the Court grants mandamus, then 800,000
DACA recipients will never know the full basis for the
government’s decision to take away promised benefits
and subject them to removal from the United States.
And without knowing that basis, reviewing courts (in-
cluding this Court) will be hamstrung in trying to
evaluate respondents’ challenges to the decision to
end DACA. It is undisputed that government officials
who decided to end DACA considered more than the
scant administrative record the government initially
submitted. See pp. 15-17, supra. Indeed, the govern-

32

ment admits that there are 6,000 additional docu-
ments that were used to make the decision. See Stay
Appl. 14.

The government’s statement that depriving re-
spondents of the record used to rescind DACA imposes
only “minimal burdens” (Pet. 33) is plainly untrue and
coldly dismissive. The decision to end DACA already
is causing catastrophic and irreparable harm to
DACA recipients, as the threat of deportation is forc-
ing them to make wrenching choices of whether to
leave their schools, jobs, and even their U.S. citizen
children and other family members. D.Ct. Dkt. 1
q4 13—14; D.Ct. Dkt. 111; Compl. 79 128-32. For the
courts to resolve whether that decision was lawful, the
administrative record and discovery must be com-
plete.

Il. The government’s alternative request for a
writ of certiorari should be denied

The government has not established an entitle-
ment to a writ of certiorari, and certainly not certio-
rari with summary reversal. The petition raises
strictly fact-based challenges to the district court’s in-
terlocutory rulings—not legal issues where the lower
courts have disagreed or the court below issued a rul-
ing contrary to a decision of this Court. See S. Ct. R.
10. Nor does the district court’s application of ordi-
nary principles of administrative law provide the type
of exceptional circumstances that could justify this
Court’s review in the absence of such a conflict.

The government strains to manufacture a conflict
in authority (Pet. 17), but none exists. The legal prin-
ciples the lower courts applied to determine whether
the government produced the “whole” administrative

33

record are consistent with this Court’s decisions, in-
cluding the four decisions on which the government
primarily relies. Florida Power involved a different
question—expanding an already complete adminis-
trative record with materials that were not considered
by the agency. 470 U.S. at 744. Here, the district
court ordered completion of a facially deficient record,
not supplementation of a complete one. Pet. App. 2a
n.1, 6a—7a. Overton Park supports respondents’ view,
not the government’s: There, the Court recognized
that review of agency action must “be based on the full
administrative record that was before the Secretary
at the time he made his decision.” 401 U.S. at 420; see
also Pet. App. 3a, 6a—8a. Because the district court’s
order involved completing the administrative record
with pre-decisional documents rather than expanding
it with decisionmakers’ post-decision testimony “ex-
plaining their action,” Overton Park’s “bad faith or im-
proper behavior” standard does not apply. See 401
U.S. at 420.

There is similarly no conflict with Morgan, because
the documents the district court ordered to be in-
cluded in the record pre-date the decision to rescind
DACA; they are not post-decision testimony “prob|ing]
the mental processes” of the agency, 313 U.S. at 422,
which necessarily would not be part of the adminis-
trative record. And Cheney, 542 U.S. at 383, 387, is
not a “categorical bar against requiring DHS to either
include White House documents in a properly-defined
administrative record or assert privilege individually
as to those documents.” Pet. App. 13a. Cheney con-
cerned exceptionally burdensome discovery directed
to the Vice President himself, whereas here the gov-

34

ernment faces limited discovery requests and a dis-
trict court poised to protect its privileged documents.
Pet. App. 22a, 43a.

And there is no circuit conflict warranting review.
As the court of appeals explained (Pet. App. 14a—15a),
the D.C. Circuit’s San Luis Obispo decision is inappo-
site here, because it involved “transcripts of literal de-
liberations among members of a multi-member
agency board,” Pet. App. 14a, which were analogous
to disclosure of the “collective mental processes” of an
individual decisionmaker in a deposition, 789 F.2d at
44. The district court did not order disclosure of any
similar material here. See p. 23, supra.

Finally, the district court’s case-management deci-
sions do not “depart(] from the accepted and usual
course of judicial proceedings.” S. Ct. R. 10(a). To the
contrary: To compile the administrative record, the
court applied circuit precedent, which is wholly con-
sistent with this Court’s guidance. It (and the court
of appeals) concluded, based on a number of factors,
see pp. 7-9, supra, that the government’s proffered
record could not plausibly represent the “whole rec-
ord” considered by the agency decisionmaker. Pet.
App. 6a—8a, 35a. The courts below respected claims
of privilege, and the court of appeals specifically in-
vited the government to appeal particular privilege
rulings with which it disagreed. Rather than follow
the normal judicial-review process, the government
leapfrogged to this Court, asking for the Court not
only to undo the district court’s careful work, but also
to go ahead and usurp the district court’s authority to

manage discovery.

35

It is the government—not the district court—that
has shown an “extraordinary disregard for settled
principles of judicial review” (Pet 17). The President
promised protection to the 800,000 Dreamers, and
then the administration reneged on that promise. At
the very least, the hundreds of thousands of people af-
fected by the government’s about-face should be af-
forded a fair opportunity to test the legality of that de-
cision.

36

CONCLUSION

The petition for a writ of mandamus or certiorari
should be denied.

Respectfully submitted.

NICOLE A. SAHARSKY THEODORE J. BOUTROUS, JR.
GIBSON, DUNN & CRUTCHER LLP ETHAN D. DETTMER
1050 CONNECTICUT AVE.,N.W. KIRSTEN GALLER

WASHINGTON, DC 20036 JESSE GABRIEL

(202) 955-8500 GIBSON, 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

JONATHAN WEISSGLASS JAMES R. WILLIAMS
STACEY M. LEYTON GRETA S. HANSEN
ERIc P. BROWN LAURA 8S. TRICE
ALTSHULER BERZON LLP MARCELO QUINONES
177 Post STREET, SUITE 300 OFFICE OF THE COUNTY COUN.
SAN FRANCISCO, CA 94108 SEL
(415) 421-7151 COUNTY OF SANTA CLARA
70 WEST HEDDING STREET

Counsel for Respondents County EAST WING, NINTH FLOOR
of Santa Clara and Service Em- SAN JOSE,CA95110

ployees International Union (408) 299-5900

Local 521
Counsel for Respondent
County of Santa Clara

DECEMBER 2017

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0803%3A03. Public record. Not legal advice.