APPLICATION FOR STAY AND PETITION FOR WRIT OF MANDAMUS
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.
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.
Breyer, with whom Justice Ginsburg, Justice Sotomayor, and
Justice Kagan join, dissenting from grant of stay.
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.
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.
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
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
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.
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.
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 ...