                                                                      FILED
                               FOR PUBLICATION
                                                                      NOV 16 2017
                   UNITED STATES COURT OF APPEALS                  MOLLY C. DWYER, CLERK
                                                                    U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


In re: UNITED STATES OF AMERICA;               No.   17-72917
DONALD J. TRUMP; U.S.
DEPARTMENT OF HOMELAND                         D.C. Nos.   3:17-cv-05211-WHA
SECURITY; ELAINE C. DUKE,                                  3:17-cv-05235-WHA
______________________________                             3:17-cv-05329-WHA
                                                           3:17-cv-05380-WHA
UNITED STATES OF AMERICA;                                  3:17-cv-05813-WHA
DONALD J. TRUMP; U.S.                          Northern District of California,
DEPARTMENT OF HOMELAND                         San Francisco
SECURITY; ELAINE C. DUKE, in her
official capacity as Acting Secretary of the
Department of Homeland Security,               ORDER

             Petitioners,

v.

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
CALIFORNIA, SAN FRANCISCO,

             Respondent,

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.

                           Petition for Writ of Mandamus

                     Argued and Submitted November 7, 2017
                              Pasadena, California


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

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


                                          2
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



      1
        Issues regarding supplementation—as opposed to completion—of the
record and the propriety of discovery on the non-APA claims, including the
propriety of depositions, are not properly before us at this time, and we do not
address them here.
                                          3
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


                                           4
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.”


                                           5
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


      2
       That lawsuit challenged a related but distinct deferred action policy,
Deferred Action for Parents of Americans and Lawful Permanent Residents, or
DAPA. See United States v. Texas, 136 S. Ct. 2271 (2016); Texas v. United States,
809 F.3d 134 (5th Cir. 2015); Texas v. United States, 86 F. Supp. 3d 591 (S.D.
Tex. 2015).
                                            6
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 people3




      3
        See U.S. Citizenship and Immigration Services, Number of Form I-821D,
Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter,
Intake, Biometrics and Case Status Fiscal Year 2012–2017 (June 30) (Sept. 20,
2017), goo.gl/UcGJww.
                                          7
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

      4
       The dissent agrees that “a policy shift of that magnitude presumably would
not have been made without extensive study and analysis beforehand.” Dissent at
1.
      5
        See Press Release, White House Office of the Press Secretary, President
Donald J. Trump Restores Responsibility and the Rule of Law to Immigration
(Sept. 5, 2017), https://www.whitehouse.gov/the-press-office/2017/09/05/
president-donald-j-trump-restores-responsibility-and-rule-law.
                                            8
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 concluding that it is implausible that the Acting Secretary would

make a litigation-risk decision “without having generated any materials analyzing




                                            9
the lawsuit or other factors militating in favor of and against the switch in policy.”

Order at *4.

      It was therefore not clear error for the district court to conclude that the

presumption of regularity that attaches to the government’s proffered record is

rebutted, and that ordering completion of the record was necessary and appropriate.

      4.       Nor did the district court clearly err in identifying the materials that

should have been included within the scope of the complete administrative record.

The government challenges the decision to include materials considered by

subordinates who then briefed the Acting Secretary, but this decision was not clear

legal error. We have held that the record properly includes “all documents and

materials directly or indirectly considered by agency decision-makers,” Thompson,

885 F.2d at 555, but have not yet clarified the exact scope of “indirectly

considered.” District courts in this and other circuits, however, have interpreted

that phrase to include materials relied on by subordinates who directly advised the

ultimate decision-maker. See, e.g., Nat. Res. Def. Council v. Gutierrez, No. C

01-0421 JL, 2008 WL 11358008, at *6 (N.D. Cal. Jan. 14, 2008) (“To the extent

[the government argues] that only those documents that reached [the agency’s]

most senior administrators were in fact ‘considered,’ courts have rejected that view

as contrary to the Ninth and other Circuits’ pronouncements . . . .”);


                                            10
GeorgiaCarry.org, Inc. v. U.S. Army Corps of Eng’rs, 212 F. Supp. 3d 1348, 1352

(N.D. Ga. 2016) (“Documents and materials indirectly considered by agency

decision-makers are those that may not have literally passed before the eyes of the

decision-makers, but were so heavily relied on in the recommendation that the

decisionmaker constructively considered them.”); Amfac Resorts, 143 F. Supp. 2d

at 12 (“[I]f the agency decisionmaker based his decision on the work and

recommendations of subordinates, those materials should be included as well.”).6

      Moreover, as noted in the district court’s October 17 order, a Department of

Justice guidance document directs agencies compiling the administrative record to

“[i]nclude all documents and materials prepared, reviewed, or received by agency

personnel and used by or available to the decision-maker, even though the final

decision-maker did not actually review or know about the documents and

materials.” U.S. Dep’t of Justice, Env’t and Nat. Res. Div., Guidance to Federal

Agencies on Compiling the Administrative Record 3 (Jan. 1999) (emphasis added).

It further provides that the administrative record should include “communications



      6
        We also note that the government has conceded in other cases that
documents relied on by subordinates are properly part of the administrative record.
See Oceana, Inc. v. Pritzker, No. 16-cv-06784-LHK (SVK), 2017 WL 2670733, at
*4 (N.D. Cal. June 21, 2017) (“Defendants acknowledge . . . that a decision-maker
can be deemed to have ‘constructively considered’ materials that, for example,
were relied on by subordinates . . . .”).
                                         11
the agency received from other agencies . . . documents and materials that support

or oppose the challenged agency decision . . . minutes of meetings or transcripts

thereof . . . [and] memorializations of telephone conversations and meetings, such

as a memorandum or handwritten notes.” Id. at 3–4. The district court’s October

17 order complies with this Department of Justice guidance; the government’s

proffered record does not.

      We recognize that such guidance is not binding; we nevertheless find it

persuasive as a statement by the Department of Justice as to what should be

included in a complete administrative record. We also note that the guidance

document DHS failed to comply with here was inexplicably rescinded the very

same day that the government filed this petition for a writ of mandamus.

      Given that the district court’s interpretation of Thompson is consistent with

the rulings of other district courts, comports with the Department of Justice’s

guidance on administrative records, and is not foreclosed by Ninth Circuit

authority, we cannot say that the district court’s interpretation was clearly

erroneous as a matter of law. See In re Swift Transp. Co., 830 F.3d 913, 916–17

(9th Cir. 2016) (“It is well established that ‘[t]he absence of controlling precedent




                                          12
weighs strongly against a finding of clear error [for mandamus purposes].’”)

(quoting In re Van Dusen, 654 F.3d at 845).7

      5.     The district court’s order that the government complete the record

with documents considered by former DHS Secretary John Kelly in the course of

deciding not to terminate DACA in February 2017 also withstands mandamus

scrutiny. This is not because of some freestanding requirement that all the

materials underlying a previous decision on a similar subject are always part of the

administrative record; rather, it simply recognizes that both decisions were part of

an ongoing decision-making process regarding deferred action: In February 2017,

Secretary Kelly ended other prioritization programs, but left DACA and DAPA in

place; in June 2017, Secretary Kelly ended DAPA but left DACA intact; finally, in

September 2017, Acting Secretary Duke ended DACA. The materials considered

by Secretary Kelly in the course of deciding against ending DACA in February



      7
         There is tension within our decisions about whether controlling Ninth
Circuit precedent is a necessary precondition to finding clear error as a matter of
law. Compare In re Swift Transp. Co., 830 F.3d at 917 (“If ‘no prior Ninth Circuit
authority prohibited the course taken by the district court, its ruling is not clearly
erroneous.’”) (quoting In re Morgan, 506 F.3d 705, 713 (9th Cir. 2007)), with
Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir. 2010) (“[T]he necessary
clear error factor does not require that the issue be one as to which there is
established precedent.”) (emphasis added). At a minimum, however, the lack of
such authority “weighs strongly” against finding clear error. In re Swift Transp.
Co., 830 F.3d at 916.
                                          13
2017 did not cease to be “before the agency” for purposes of the administrative

record during that seven-month evolution in policy. Thompson, 885 F.2d at

555–56. The district court’s decision to order their inclusion in the record was

therefore not clear legal error.

      6.     Finally, the government makes two categorical arguments with respect

to privilege.8 First, it contends that Cheney v. U.S. District Court, 542 U.S. 367

(2004), bars the completion of the administrative record with any White House

materials, because requiring White House officials to search for and assert

privilege as to individual documents would be an unwarranted intrusion into

executive decision-making. Cheney, of course, did not involve an administrative

agency’s obligation under the APA to provide the court with the record underlying

its decision-making. It instead involved civil discovery requests that the Supreme

Court described variously as “overbroad” and as “ask[ing] for everything under the

sky.” Id. at 383, 387. We do not read Cheney as imposing a categorical bar

against requiring DHS to either include White House documents in a properly-




      8
        The government also appears to challenge the district court’s individual
privilege determinations, but it has provided little in the way of argument regarding
the specific documents ordered disclosed by the district court. We are unable to
conclude that the government has met its burden of showing that the district court’s
privilege analysis was clearly erroneous as a matter of law.
                                          14
defined administrative record or assert privilege individually as to those

documents.

      Moreover, the reasoning of Cheney appears to be based substantially on the

fact that the Vice President himself was the subject of discovery. See id. at 381

(“Here, however, the Vice President and his comembers on the NEPDG are the

subjects of the discovery orders.”), 382 (“These separation-of-powers

considerations should inform a court of appeals’ evaluation of a mandamus petition

involving the President or the Vice President.”). Here, although the government is

of course correct that the President is named as a defendant in some of the

underlying lawsuits, there is no indication that either his documents or those of the

Vice President would fall within the completed administrative record as ordered by

the district court. Cheney therefore does not render the district court’s order clearly

erroneous.

      Second, the government argues that it was clear legal error to require a

privilege log and to evaluate documents allegedly protected by the deliberative

process privilege on an individual basis, since “deliberative” materials are not

properly within the administrative record at all. As noted above, the district court

reviewed in camera each of the documents as to which the government asserted the

deliberative process privilege, and ordered the inclusion of only those documents


                                          15
that met the balancing standard laid out in FTC v. Warner Commc’ns, Inc., 742

F.2d 1156, 1161 (9th Cir. 1984). The court stated that it would similarly review in

camera any additional documents as to which the government claims privilege in

the future. Order at *8.

      As the government acknowledges, we have not previously addressed

whether assertedly deliberative documents must be logged and examined or

whether the government may exclude them from the administrative record

altogether. However, many district courts within this circuit have required a

privilege log and in camera analysis of assertedly deliberative materials in APA

cases. See, e.g., Ctr. for Food Safety v. Vilsack, No. 15-cv-01590, 2017 WL

1709318, at *5 (N.D. Cal. May 3, 2017); Inst. for Fisheries Res. v. Burwell, No.

16-cv-01574 VC, 2017 WL 89003, at *1 (N.D. Cal. Jan. 10, 2017); California ex

rel. Lockyer v. U.S. Dep’t of Agric., No. C05-03508 EDL, 2006 WL 708914, at *4

(N.D. Cal. March 16, 2008). Again, “the absence of controlling precedent” and the

practice of the district courts “weigh[] strongly against a finding of clear error” for

purposes of mandamus. In re Swift Transp. Co., 830 F.3d at 916–17 (citation

omitted).

      We further note that the “deliberative” materials at issue in the main case

cited by the government, San Luis Obispo Mothers for Peace v. U.S. Nuclear


                                           16
Regulatory Comm’n, 789 F.2d 26 (D.C. Cir. 1986) (en banc), were transcripts of

literal deliberations among the members of a multi-member agency board. See id.

at 44. Where—as in Mothers for Peace—an agency is headed by a multi-member

board, the deliberations among those members are analogous to the internal mental

processes of the sole head of an agency, and thus are generally not within the scope

of the administrative record. Cf. Portland Audubon, 984 F.2d at 1549

(distinguishing Mothers for Peace as involving “the internal deliberative processes

of the agency [and] the mental processes of individual agency members”)

(emphases added). No such deliberations among a multi-member agency are at

issue here. The district court’s decision to require a privilege log and evaluate

claims of privilege on an individual basis before including documents in the record

was not clearly erroneous as a matter of law.

                                      *   *     *

      The district court’s October 17, 2017 order represents a reasonable approach

to managing the conduct and exigencies of this important litigation—exigencies

which were dictated by the government’s March 5, 2018 termination date for

DACA. In order for the government to prevail in its request for the extraordinary

remedy of mandamus, we must be “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


                                          17
States, 791 F.3d at 955). We are left with no such conviction here, and mandamus

relief is therefore not appropriate.

      Accordingly, the stay of proceedings entered on October 24, 2017 is lifted.

      PETITION DENIED.




                                        18
                                                                                 FILED
In re United States of America, No. 17-72917
                                                                                  NOV 16 2017
WATFORD, Circuit Judge, dissenting:                                        MOLLY C. DWYER, CLERK
                                                                                U.S. COURT OF APPEALS


      I understand why the district court ordered the Department of Homeland

Security (DHS) to provide a more fulsome administrative record. The agency’s

decision to rescind DACA will profoundly disrupt the lives of hundreds of

thousands of people, and a policy shift of that magnitude presumably would not

have been made without extensive study and analysis beforehand. But the desire

for greater insight into how DHS arrived at its decision is not a legitimate basis for

ordering the agency to expand the administrative record, unless the plaintiffs make

a threshold factual showing justifying such action. They have not done so here.

As a result, I think the district court’s order constitutes “a clear abuse of

discretion,” and the burden imposed by the order is exceptional enough to warrant

the extraordinary remedy of mandamus. Cheney v. United States District Court for

the District of Columbia, 542 U.S. 367, 380 (2004).

      The district court’s order violates two well-settled principles governing

judicial review of agency action under the Administrative Procedure Act. The first

is that a court ordinarily conducts its review “based on the record the agency

presents to the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S.

729, 743–44 (1985); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (per

curiam). If the record compiled by the agency is inadequate to support the
                                                                           Page 2 of 6
challenged action, the reviewing court will usually be required to vacate the

agency’s action and remand for additional investigation or explanation. Florida

Power, 470 U.S. at 744. So in most cases the agency bears the risk associated with

filing an incomplete record, not the challengers.

      The second principle is that documents reflecting an agency’s internal

deliberative processes are ordinarily not part of the administrative record. See In re

Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency,

156 F.3d 1279, 1279–80 (D.C. Cir. 1998); Kansas State Network, Inc. v. FCC, 720

F.2d 185, 191 (D.C. Cir. 1983). An agency generally has no obligation to include

documents that were prepared to assist the decision-maker in arriving at her

decision, such as memos or emails containing opinions, recommendations, or

advice. These pre-decisional materials are not deemed part of the administrative

record because they are irrelevant to the reviewing court’s task. The court’s

function is to assess the lawfulness of the agency’s action based on the reasons

offered by the agency, Motor Vehicle Manufacturers Association of the United

States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 50

(1983), not to “probe the mental processes” of agency decision-makers in reaching

their conclusions. Morgan v. United States, 304 U.S. 1, 18 (1938). Requiring

routine disclosure of deliberative process materials would also chill the frank
                                                                            Page 3 of 6
discussions and debates that are necessary to craft well-considered policy. See

Assembly of the State of California v. Department of Commerce, 968 F.2d 916, 920

(9th Cir. 1992); San Luis Obispo Mothers for Peace v. Nuclear Regulatory

Commission, 789 F.2d 26, 45 (D.C. Cir. 1986) (en banc) (plurality opinion).

      There are exceptions to these general rules. First, expansion of the record

may be required when the agency fails to make formal findings and thus leaves the

reviewing court unable to discern the agency’s reasons for taking the action that it

did. See Public Power Council v. Johnson, 674 F.2d 791, 793–94 (9th Cir. 1982).

(This exception doesn’t apply here because the memo issued by the Acting

Secretary explicitly states her asserted reason for rescinding DACA: concern that

the program would be invalidated in threatened litigation.) Second, the record may

be expanded if there is evidence that the agency cherry-picked the materials it

included by omitting factual information undermining the conclusions it reached.

See Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534,

1548 (9th Cir. 1993). And third, documents reflecting an agency’s internal

deliberations may on occasion be made part of the record, but only if the

challengers make “a strong showing of bad faith or improper behavior” on the part

of agency decision-makers. Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 420 (1971), abrogated on other grounds by Califano v. Sanders, 430
                                                                            Page 4 of 6
U.S. 99 (1977); In re Subpoena Duces Tecum, 156 F.3d at 1279–80.

      The plaintiffs have not made the showing necessary to trigger either of the

latter two exceptions. They have not shown any likelihood that factual information

considered by the Acting Secretary and relevant to her decision has been omitted

from the record. Indeed, it would be implausible to think that any such material

exists, given the nature of the reason asserted by the Acting Secretary for

rescinding DACA. Concern over the program’s vulnerability to legal challenge

would rest not on factual information but on the legal analysis of lawyers.

Documents analyzing DACA’s potential legal infirmities, prepared to assist the

Acting Secretary in assessing the gravity of the litigation risk involved, fall

squarely within the category of deliberative process materials mentioned above.

They are presumptively outside the scope of what must be included in the

administrative record (and may be privileged in any event).

      Nor have the plaintiffs attempted at this stage of the case to show bad faith

or improper behavior on the part of the Acting Secretary. To be sure, they assert in

their brief that they suspect her stated reason for rescinding DACA is pretextual.

But bare assertions of that sort fall far short of the showing needed to overcome the

presumption that agency decision-makers have acted for the reasons they’ve given.

      Because the plaintiffs have failed to establish that any of these exceptions
                                                                          Page 5 of 6
apply, I don’t think the district court’s order can stand. The court directed DHS to

include in the administrative record all DACA-related “emails, letters, memoranda,

notes, media items, opinions, and other materials” considered by the Acting

Secretary, and all such materials considered by any other government

official—including officials from the Department of Justice and the White

House—who provided the Acting Secretary with written or verbal input on the

decision to rescind DACA. The court further expanded the record to include “all

comments and questions propounded by Acting Secretary Duke to advisors or

subordinates or others regarding the actual or potential rescission of DACA and

their responses.”

      In my view, the district court exceeded the scope of its lawful authority to

expand the administrative record. The order sweeps far beyond materials related to

the sole reason given for rescinding DACA—its supposed unlawfulness and

vulnerability to legal challenge. The order requires the inclusion of all documents

mentioning DACA-related issues of any sort, and is overbroad for that reason

alone. But even if the order had been limited to documents analyzing the risk that

DACA might be invalidated, those materials are deliberative in character and thus

could not be made part of the administrative record absent a showing of bad faith

or improper behavior. And to the extent the order will compel the production of
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communications between the Acting Secretary and high-level officials in the White

House—including, potentially, the President himself—the order raises the same

sensitive separation-of-powers concerns that made mandamus relief appropriate in

Cheney. See 542 U.S. at 389–90.

      These departures from settled principles are enough to establish that the

district court’s order is “clearly erroneous as a matter of law,” which is the most

important of the factors we consider when deciding whether to grant mandamus

relief. In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016). The other factors weigh

in favor of granting relief as well. The order isn’t immediately appealable, and if

relief is denied the harm inflicted will be immediate and irreparable. As the

declarations submitted by the government attest, the search for documents

responsive to the court’s order will be burdensome and intrusive, given the large

number of government officials who may have provided written or verbal input to

the Acting Secretary. And the damage caused by public disclosure of otherwise

privileged materials can’t be undone following an appeal from the final judgment.

      This strikes me as a classic case in which mandamus relief is warranted, and

I would therefore grant the writ.
