In re: UNITED STATES OF AMERICA; DONALD J. TRUMP; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE,
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.
and Submitted November 7, 2017 Pasadena, California
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
Before: WARDLAW, GOULD, and WATFORD, Circuit Judges.
WARDLAW AND GOULD, CIRCUIT JUDGES.
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.
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. 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.
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
"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)).
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).
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
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.
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.
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 based solely on 256 pages of publicly
available documents is not credible, as the district court
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. 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).
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