Nat'l Ass'n for the Advancement of Colored People v. Trump, 315 F. Supp. 3d 457

Background

DACA (Deferred Action for Childhood Arrivals) grants renewable two‑year deferred action to certain undocumented individuals brought to the U.S. as children; ~800,000 recipients since 2012.
On Sept. 5, 2017 DHS (Acting Sec. Duke) issued a memo rescinding DACA; DHS relied chiefly on a legal determination that the program was unlawful and on litigation‑risk and policy considerations.
This Court (Apr. 2018) held the rescission reviewable under the APA and arbitrary and capricious because DHS’s legal judgment and other rationales were inadequately explained; the Court vacated the rescission but stayed vacatur 90 days to allow DHS to better explain.
Secretary Nielsen declined to rescind the Duke memo but issued a three‑page memorandum (Nielsen Memo) amplifying reasons: DACA is contrary to law; there are "serious doubts" about its legality; and several enforcement‑policy reasons (e.g., preference for individualized discretion, legislative action, and purported deterrence/messaging).
Government moved to revise the Court’s order, arguing Nielsen’s memo shows the rescission was a bona fide exercise of enforcement discretion and therefore either unreviewable or not arbitrary and capricious.
The Court considered the Nielsen Memo, found one rationale (the messaging/deterrence justification) to be a post hoc reason not grounded in the original record, and denied the government’s motion—reaffirming that the rescission is reviewable and arbitrary and capricious because DHS failed to meaningfully justify its legal judgment or address reliance interests.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DHS’s Sept. 2017 rescission of DACA is judicially reviewable under the APA	Rescission is reviewable because it rests on DHS’s legal judgment that DACA is unlawful (not a pure enforcement discretion decision)	Rescission is an exercise of enforcement discretion and thus not subject to APA review; Nielsen Memo shows bona fide policy grounds	Court: Reviewable — DHS’s action is predicated on a legal determination of illegality; related policy grounds are insufficiently independent to render it unreviewable.
Whether the Nielsen Memo may be considered on reconsideration	Court should ignore memo because DHS did not issue a new rescission memo as anticipated	Courts may consider amplified explanations submitted on remand; treat as further explanation/reconsideration	Court: May consider the Nielsen Memo as an amplified explanation (but will exclude post hoc rationale).
Whether the Nielsen Memo contains only post hoc rationalizations (and thus should be ignored)	Much of the memo is post hoc and should be discarded	Memo amplifies earlier rationales and fills gaps; not mere litigation rationalizing	Court: Most rationales are permissible amplifications except the messaging/deterrence rationale, which is a new post hoc reason and omitted from consideration.
Whether DHS’s rescission (as explained by Duke + Nielsen memos) is arbitrary and capricious	Rescission is arbitrary because DHS’s legal conclusion remains unexplained and DHS failed to consider reliance interests	Nielsen Memo provides independently sufficient grounds (serious doubts, policy reasons) to justify rescission	Court: Rescission remains arbitrary and capricious — the Nielsen Memo fails to meaningfully justify the legal conclusion or adequately address reliance; vacatur stands.

Key Cases Cited

Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency action must be upheld on the basis articulated by the agency)
Heckler v. Chaney, 470 U.S. 821 (1985) (presumption that enforcement discretion is unreviewable)
City of Arlington v. FCC, 569 U.S. 290 (2013) (statutory‑interpretation/reviewability principles)
Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671 (D.C. Cir. 1994) (distinguishes reviewable legal determinations from unreviewable enforcement choices)
A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484 (D.C. Cir. 1995) (courts may allow agencies to amplify reasoning on remand)
Alpharma, Inc. v. Leavitt, 460 F.3d 1 (D.C. Cir. 2006) (permitted amplified articulations post‑remand)
Food Mktg. Inst. v. ICC, 587 F.2d 1285 (D.C. Cir. 1978) (post‑hoc rationalizations are inadequate)
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (DAPA decision relevant to debate over scope/compatibility with INA)
Fogo De Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec., 769 F.3d 1127 (D.C. Cir. 2014) (if multiple independent grounds exist, decision upheld if any ground valid)
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (agencies changing policy must consider reliance interests)
Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199 (2015) (agency must consider significant reliance interests)
CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (agency declination based on statutory interpretation is reviewable)