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In re United States

United States Supreme Court

December 8, 2017

IN RE UNITED STATES, ET AL.

         ON APPLICATION FOR STAY AND PETITION FOR WRIT OF MANDAMUS

         The application for a stay presented to JUSTICE KENNEDY and by him referred to the Court is granted, and the District Court's September 22, 2017, October 17, 2017, and November 20, 2017 orders, to the extent they require discovery and addition to the administrative record filed by the Government, are stayed pending disposition of the Government's petition for a writ of mandamus or in the alternative a writ of certiorari.

         Responses to the Government's petition for a writ of mandamus or in the alternative a writ of certiorari must be filed by Wednesday, December 13, 2017 at 4:00 p.m.

         Justice Breyer, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, dissenting from grant of stay.

         On September 5, 2017, the Government announced its decision to terminate the Deferred Action for Childhood Arrivals (DACA) program, effective March 5, 2018. The Department of Homeland Security (DHS) had adopted DACA in 2012. Since that time, DACA has provided that immigrants brought to the United States illegally as children who meet certain other requirements could obtain work authorization, a social security number, and permission to travel overseas and lawfully return to the United States. Nearly 800, 000 people have benefited from the program.

         After the Government announced its decision to terminate DACA, respondents filed suit in the U.S. District Court for the Northern District of California to challenge the Government's termination of the program under the Administrative Procedure Act (APA) and on other grounds. The merits of that challenge have not yet been addressed by the District Court, and they are not before us. But the Government has filed a petition for a writ of mandamus in this Court to challenge the District Court's order that it provide additional documents to complete the administrative record concerning the Government's decision to terminate DACA. The U.S. Court of Appeals for the Ninth Circuit previously denied the Government most of the relief the Government seeks here. See In re United States, __F.3d__(2017). I would do the same.

         A writ of mandamus is "a 'drastic and extraordinary' remedy 'reserved for really extraordinary causes.'" Cheney v. United States Dist. Court for D. C, 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-260 (1947)). In my view, the Government's arguments do not come close to carrying the heavy burden that the Government bears in seeking such extraordinary relief. With respect, I therefore dissent from the Court's decision to grant a stay pending further consideration of the Government's petition for a writ of mandamus.

         I

         The Government's primary argument is that "the district court plainly erred by . . . ordering the government to 'complete' the administrative record with materials beyond those presented by the agency to the court, " because a reviewing court's sole task under the APA is to "determine whether the agency's action may be upheld on the basis of the reasons the agency provides and 'the record the agency presents to the reviewing court.'" Pet. for Mandamus 19, 24 (quoting __F.3d, at__(Watford, J., dissenting) (slip op., at 1)). The Government thus contends that review of its decision terminating DACA must be based exclusively on the documents that the Government itself unilaterally selected for submission to the District Court. I am not aware of any precedent supporting the Government's position.

         The APA is clear that a court reviewing agency action must review "the whole record" to determine whether that action is lawful. 5 U.S.C. §706. The basic question here is what constitutes "the whole record" that the court must review. We held in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), that the "whole record" means "the full administrative record that was before the Secretary at the time he made his decision." Ibid. Neither this Court nor the lower courts has ever read Overton Park to limit the "full administrative record" to those materials that the agency unilaterally decides should be considered by the reviewing court.

         Indeed, judicial review cannot function if the agency is permitted to decide unilaterally what documents it submits to the reviewing court as the administrative record. Effective review depends upon the administrative record containing all relevant materials presented to the agency, including not only materials supportive of the government's decision but also materials contrary to the government's decision. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43-44 (1983). Otherwise, the reviewing court cannot engage in the "thorough, probing, in-depth review" that the APA requires. Overton Park, 401 U.S., at 415-416. A court deprived of a full administrative record could not consider, for example, whether the decision was based on the consideration of irrelevant factors, id., at 411-412; whether it considered the relevant factors, id., at 416; whether the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, " §706(2)(A); or whether the decision was unlawful for some other reason.

         Perhaps for this reason, the lower courts seem to have unanimously rejected the Government's position that the agency may unilaterally determine the contents of the administrative record that a court may review. In Thompson v. Department of Labor, 885 F.2d 551 (CA9 1989), for example, the Ninth Circuit explained:

"The whole administrative record ... is not necessarily those documents that the agency has compiled and submitted as 'the' administrative record. The 'whole' administrative record, therefore, consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position." Id., at 555 (citation and some internal quotation marks omitted).

See also, e.g., Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (CA10 1993) ("An agency may not unilaterally determine what constitutes the ...


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