In Re United States
138 S. Ct. 371
| SCOTUS | 2017Background
- In Sept. 2017 the federal government announced it would terminate the Deferred Action for Childhood Arrivals (DACA) program effective March 5, 2018; nearly 800,000 people had relied on DACA.
- Respondents sued in the N.D. Cal. under the Administrative Procedure Act (APA) challenging the termination; the District Court ordered the government to supplement the administrative record with additional documents and permitted discovery beyond the record.
- The government sought emergency relief, including a stay and a writ of mandamus from the Supreme Court, challenging the District Court’s orders to complete the administrative record and to allow discovery.
- The Supreme Court granted a stay of the District Court’s orders pending disposition of the government’s petition for mandamus; Justice Breyer (joined by Justices Ginsburg, Sotomayor, and Kagan) dissented from the stay.
- Breyer’s dissent argues mandamus relief and the stay were unwarranted because courts must review the “whole record,” district courts may order supplementation and in camera privilege review, and ordinary discovery burdens do not justify extraordinary relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of the administrative record | Respondents: court may require the full administrative record—all material before decisionmakers | Government: reviewing court must be limited to the record the agency submits; agency decides what constitutes the record | Dissent: lower courts correctly may order supplementation; agency cannot unilaterally define the record; Supreme Court nonetheless stayed District Court orders pending mandamus review |
| Judicial inquiry into deliberative materials / mental processes | Respondents: documents considered by decisionmakers that preexisted the decision are part of the record | Government: some internal deliberations (especially White House materials) are protected; reliance on Cheney and San Luis Obispo | Dissent: Overton Park limits probing subjective mental processes absent bad faith; ordered documents were preexisting and not protected on their face; privilege claims can be resolved in camera |
| Privilege and in camera review | Respondents: courts can review claimed privileged documents in camera and require justification | Government: asserted privileges over certain documents (including a White House memorandum) and argued protection from disclosure | Dissent: government failed to identify specific privileges adequately; District Court permissibly required justification and in camera submission; mandamus inappropriate |
| Burden/timing and alternative remedies | Respondents: importance of full record justifies production; district court can manage timing and discovery | Government: reviewing/supplementation obligations and impending discovery impose undue burden and quick deadlines; sought relief from this Court | Dissent: volume not extraordinary for administrative records; government could seek extensions or raise burdens in lower courts; mandamus/stay inappropriate absent exhaustion of those remedies |
Key Cases Cited
- Cheney v. United States Dist. Court for D.C., 542 U.S. 367 (2004) (extraordinary relief standards and White House privilege principles)
- Ex parte Fahey, 332 U.S. 258 (1947) (mandamus is drastic, extraordinary remedy)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (review requires the "whole" administrative record and limits to probing officials' subjective motives absent bad faith)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (APA arbitrary and capricious review requires consideration of record both supporting and adverse to agency action)
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (judicial review focuses on the administrative record in existence at time of decision)
- United States v. Morgan, 313 U.S. 409 (1941) (limits on inquiry into decisionmakers' mental processes)
- Camp v. Pitts, 411 U.S. 138 (1973) (focus of review is the administrative record, not a new record created in court)
- San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26 (D.C. Cir. 1986) (en banc) (addressing protection of deliberative internal records of multimember agencies)
- Thompson v. Dep't of Labor, 885 F.2d 551 (9th Cir. 1989) ("whole" administrative record includes materials directly or indirectly considered and contrary evidence)
- Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993) (agency may not unilaterally determine the administrative record)
- Georgia ex rel. Olens v. McCarthy, 833 F.3d 1317 (11th Cir. 2016) (administrative records can be extremely large and voluminous)