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Bicoastal DACA Fights Focus on Administration Records as SCOTUS Writ Looms

In the latest twist in an ongoing bicoastal legal battle, the Trump administration is threatening to petition the U.S. Supreme Court in a dispute over the production of documents related to its decision to rescind the Deferred Action for Childhood Arrivals program. Fights over the decision to end the DACA program, which was announced Sept. 5, are playing out in the Ninth and Second Circuits. In California, the Justice Department signaled its plans to appeal the Ninth Circuit's decision last week that upheld a lower court's order requiring the administration to provide "emails, letters, memoranda, notes, media items, opinions and other materials directly or indirectly considered" by the acting DHS secretary, Elaine Duke, in the DACA decision. Meanwhile, in New York, two parallel suits making similar claims as those in California are moving slightly behind the California proceedings. The Second Circuit is presently reviewing a writ of mandamus petition from the government, leaving open the door to a potential split between circuits. If the Justice Department does ask the high court for review, it would mark a significant escalation in the DOJ's efforts to protect documents it considers privileged that informed its policy conclusions. "The assertion here is really quite sweeping and bold, so maybe this is the first salvo in the administration's effort to hobble the ability of courts to figure out what it is the agency is doing and why. Because this claim, as best as I know, is a really novel claim," said Georgetown Law professor David Vladeck, an expert in administrative law, of the government's arguments. In the California action, which is farther along in its development, the government faces five lawsuits over the DACA rescission in the Ninth Circuit, each with claims under the Administrative Procedure Act as well as allegations of constitutional violations. The lawsuits, whose plaintiffs include both the state of California and the University of California system, have all been related and are proceeding in the federal district court in San Francisco, under U.S. District Judge William Alsup of the Northern District of California. Alsup set the briefing schedule for the cases on Sept. 22, asking the government to file its administrative record by Oct. 6. The government complied, but three days later, the plaintiffs filed a motion asking Alsup to order the government to complete the administrative record. They argued that the government's 256-page filing did not include every document considered, directly or indirectly, by Duke in making her decision. Alsup agreed on Oct. 17 and ordered the government to provide more documents. The government filed its mandamus petition to the Ninth Circuit three days later. At the same time, legal action was brewing over similar issues in New York. The charge in New York’s federal courts has been led by the state’s attorney general, Eric Schneiderman, and a host of other states’ attorneys general that sued the administration shortly after the announcement was made in September. The states joined a private action initiated by Martin Jonathan Batalla Vidal in 2016 over DACA proceedings under the Obama administration. That suit has been joined by numerous other individuals potentially impacted by the current administration’s actions, as well as immigration advocates. The parallel suits, while alleging injuries specific to the parties, followed the same legal path as the California suit, drawing most of their claims from the APA, while raising other due process an equitable estoppel claims. Like their California counterparts, the New York plaintiffs demanded the government produce the administrative record around the decision to end DACA. The government complied, but, again, plaintiffs’ argued the record was not complete. The judge handling the early procedural action in the New York case, U.S. Magistrate Judge James Orenstein for the Eastern District of New York, cited Alsup’s decision compelling the government to produce a full administrative record and privilege log. “The plaintiffs, like their counterparts in Regents (where the defendants produced the same materials as the purported administrative record), have adequately established that the administrative record produced to date is manifestly incomplete,” Orenstein wrote in his order dated Oct. 19. As before, the government filed a writ of mandamus with the Second Circuit. There, it applied for a stay pending its petition, and argued that the district court was out-of-bounds in demanding a fuller record be produced. The government made the same argument to the Ninth Circuit. However, unlike their California counterparts, a Second Circuit panel composed of Judges Dennis Jacobs, Robert Sack and Barrington Parker granted the government’s stay on proceedings in the district court until that court could determine “expeditiously issues of jurisdiction and justiciability.” In short order, U.S. District Judge Nicholas Garaufis, to whom both New York cases are ultimately assigned, largely denied the government’s motion to dismiss, while answering the appellate panel’s question definitively in favor of review. The Ninth Circuit, meanwhile, declared no need for the district court to justify its review of the Trump administration’s actions. In the 2-1 ruling, the Ninth Circuit panel considered only the issue of whether Alsup was correct in holding that the government failed to complete the administrative record. "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," the majority wrote. The majority agreed with Alsup that the plaintiffs could show the government failed to complete the administrative record, which they said should include all documents DHS relied on in coming to the conclusion, as they did, that DACA could not be defended in court.   The opinion said the record provided by DHS included only one document from the Justice Department, a letter from U.S. Attorney General Jeff Sessions, though it was clear the DOJ was involved in the decision. The court added that the record contained mostly legal opinions from other courts about the DACA program, and included no documents from the DHS secretary's subordinates. "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 concluded," the majority wrote. In New York, the mandamus petition remains before the appellate court. Briefings have been ordered, and a date for a hearing on the petition is scheduled for the week of Dec. 11. While the government indicated it would appeal the Ninth Circuit's decision as early as Monday, a filing by the plaintiffs in that case could hold off a Supreme Court showdown, for now. Plaintiffs asked Alsup Sunday to stay his order for documents until after he rules on their Nov. 1 motion for a preliminary injunction against the DACA rescission. They wrote that a delay would "remove the distraction of further interlocutory appellate proceedings and to permit the court and the parties to focus on the paramount issue of whether the DACA rescission should be enjoined." If the government does file its petition, Vladeck doubted the Supreme Court would want to get involved at this stage, or before the Second Circuit makes a decision. "I don't know how anxious the Supreme Court would be to decide this sort of preliminary interlocutory issue," Vladeck said. " ... I don't know why they would want to saddle the Supreme Court with this decision. I don't know what's so problematic about their legal opinion that [the Justice Department is] going to fall on their sword about this." A Justice Department spokesman did not return a request for comment on the cases.