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In re United States

United States Court of Appeals, Ninth Circuit

November 16, 2017

In re: UNITED STATES OF AMERICA; DONALD J. TRUMP; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE,
v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO, Respondent, UNITED STATES OF AMERICA; DONALD J. TRUMP; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity as Acting Secretary of the Department of Homeland Security, Petitioners, REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO, In her official capacity as President of the University of California; STATE OF CALIFORNIA; STATE OF MAINE; STATE OF MINNESOTA; STATE OF MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; VIRIDIANA CHABOLLA MENDOZA; NORMA RAMIREZ; COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521; JIRAYUT LATTHIVONGSKORN; SAUL JIMENEZ SUAREZ, Real Parties in Interest.

          Argued and Submitted November 7, 2017 Pasadena, California

         Petition for Writ of Mandamus D.C. Nos. 3:17-cv-05211-WHA 3:17-cv-05235-WHA 3:17-cv-05329-WHA 3:17-cv-05380-WHA 3:17-cv-05813-WHA Northern District of California, San Francisco

          Before: WARDLAW, GOULD, and WATFORD, Circuit Judges.

          ORDER

          WARDLAW AND GOULD, CIRCUIT JUDGES.

         On September 5, 2017, the Acting Secretary of the Department of Homeland Security ("DHS"), Elaine Duke, announced the end of DHS's Deferred Action for Childhood Arrivals policy ("DACA"), effective March 5, 2018. Begun in 2012, DACA provided deferred action for certain individuals without lawful immigration status who had entered the United States as children. Several sets of plaintiffs sued to enjoin the rescission of DACA under the Administrative Procedure Act ("APA") and under various constitutional theories not relevant here.

         The merits of those claims are not before us today. The only issue is a procedural one, raised by the government's petition for a writ of mandamus. The government asks us to permanently stay the district court's order of October 17, 2017, which required it to complete the administrative record.[1] See Order re Motion to Complete Administrative Record, Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec., No. C 17-05211 WHA, 2017 WL 4642324 (October 17, 2017) ("Order"). We have jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651. Because the district court did not clearly err by ordering the completion of the administrative record, we hold that the government has not met the high bar required for mandamus relief.

         One note at the outset: We are not unmindful of the separation-of-powers concerns raised by the government. However, the narrow question presented here simply does not implicate those concerns. We consider only whether DHS failed to comply with its obligation under the APA to provide a complete administrative record to the court-or, more precisely, whether the district court clearly erred in so holding. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) ("[R]eview is to be based on the full administrative record that was before the Secretary at the time he made his decision."). This obligation is imposed to ensure that agency action does not become effectively unreviewable, for "[i]f the record is not complete, then the requirement that the agency decision be supported by 'the record' becomes almost meaningless." Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993). Assuring that DHS complies with this requirement-imposed by the APA on all agencies and embodied in decades of precedent-is undoubtedly a proper judicial function.

         1. "The writ of mandamus is a drastic and extraordinary remedy reserved only for really extraordinary cases." In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011) (quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947) (internal quotation marks omitted)). Indeed, "only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion will justify the invocation of this extraordinary remedy." Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004) (internal quotation marks and citations omitted). Ultimately, the issuance of the writ is "in large measure . . . a matter of the court's discretion." Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1023 (9th Cir. 2014) (quoting United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978)).

         Our discretion is guided by the five factors laid out in Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir. 1977). However, we need not consider four of those five factors here, because "the absence of factor three-clear error as a matter of law-will always defeat a petition for mandamus." In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016) (quoting In re United States, 791 F.3d 945, 955 (9th Cir. 2015)). This factor-whether "[t]he district court's order is clearly erroneous as a matter of law, " Bauman, 557 F.2d at 654-55-"is significantly deferential and is not met unless the reviewing court is left with a definite and firm conviction that a mistake has been committed." In re Bundy, 840 F.3d at 1041 (quoting In re United States, 791 F.3d at 955).

         2. The district court's order is not clearly erroneous as a matter of law. APA § 706 provides that arbitrary and capricious review shall be based upon "the whole record or those parts of it cited by a party." 5 U.S.C. § 706. The whole record "includes everything that was before the agency pertaining to the merits of its decision." Portland Audubon, 984 F.2d at 1548; see also, e.g., James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) ("The administrative record includes all materials compiled by the agency that were before the agency at the time the decision was made.") (internal quotation marks and citations omitted). More specifically, we have explained that the whole administrative record "consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position." Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (internal quotation marks omitted); see also Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993) (same). The record is thus not necessarily limited to "those documents that the agency has compiled and submitted as 'the' administrative record." Thompson, 885 F.2d at 555 (internal quotation marks omitted).

         At the initial case management conference before the district court, the government agreed to produce the complete administrative record on October 6, 2017. On that date, the government submitted as "the" administrative record fourteen documents comprising a mere 256 pages, all of which are publicly available on the internet. Indeed, all of the documents in the government's proffered record had previously been included in filings in the district court in this case, and 192 of its 256 pages consist of the Supreme Court, Fifth Circuit, and district court opinions in the Texas v. United States litigation.[2]

         Faced with this sparse record, and on the plaintiffs' motion (opposed by the government), the district court ordered the government to complete the record to include, among other things, all DACA-related materials considered by subordinates or other government personnel who then provided written or verbal input directly to Acting Secretary Duke. The district court excluded from the record documents that it determined in camera are protected by privilege. Order at *8.

         3. The administrative record submitted by the government is entitled to a presumption of completeness which may be rebutted by clear evidence to the contrary. Bar MK Ranches, 994 F.2d at 740; see also Thompson, 885 F.2d at 555 (noting that the administrative record "is not necessarily those documents that the agency has compiled and submitted as 'the' administrative record."). The district court correctly stated this legal framework and concluded that the presumption of completeness had been rebutted here. Order at *5. This conclusion was not clear legal error: Put bluntly, the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800, 000 people[3] based solely on 256 pages of publicly available documents is not credible, as the district court concluded.[4]

         The district court identified several specific categories of materials that were likely considered by the Acting Secretary or those advising her, but which were not included in the government's proffered record. For example, the record contains no materials from the Department of Justice or the White House-other than a one-page letter from Attorney General Jefferson B. Sessions-despite evidence that both bodies were involved in the decision to end DACA, including the President's own press release taking credit for the decision.[5] Nor does the proffered record include any documents from Acting Secretary Duke's subordinates; we agree with the district court that "it strains credulity" to suggest that the Acting Secretary decided to terminate DACA "without consulting one advisor or subordinate within DHS." Order at *4. And the proffered record contains no materials addressing the change of position between February 2017-when then-Secretary John Kelly affirmatively decided not to end DACA-and Acting Secretary Duke's September 2017 decision to do the exact opposite, despite the principle that reasoned agency decision-making "ordinarily demand[s] that [the agency] 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).

         At oral argument, the government took the position that because the Acting Secretary's stated justification for her decision was litigation risk, materials unrelated to litigation risk need not be included in the administrative record. Simply put, this is not what the law dictates. The administrative record consists of all materials "considered by agency decision-makers, " Thompson, 885 F.2d at 555 (emphasis added), not just those which support or form the basis for the agency's ultimate decision. See also, e.g., Amfac Resorts, LLC v. U.S. Dep't of Interior, 143 F.Supp.2d 7, 12 (D.D.C. 2001) ("[A] complete administrative record should include all materials that 'might have influenced the agency's decision, ' and not merely those on which the agency relied in its final decision.") (quoting Bethlehem Steel v. EPA, 638 F.2d 994, 1000 (7th Cir. 1980)). And even if the record were properly limited to materials relating to litigation risk, the district court did not clearly err in ...


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