United States v. United States District Court
875 F.3d 1200
| 9th Cir. | 2017Background
- In Sept. 2017 Acting DHS Secretary Elaine Duke announced rescission of DACA effective March 5, 2018; multiple plaintiffs sued under the APA and other theories.
- The government initially produced a 256‑page administrative record composed of publicly available documents.
- Plaintiffs moved to compel completion of the administrative record; the district court ordered DHS to supplement the record with materials considered by the Acting Secretary and advisers, excluding documents found privileged after in camera review.
- The government sought a writ of mandamus from the Ninth Circuit to stay the district court’s order to complete the record.
- The Ninth Circuit denied the petition, holding the district court did not clearly err in ordering completion and privilege log/in‑camera review for disputed documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus is warranted to overturn the district court’s order completing the administrative record | District court order lawful; record was incomplete and must be supplemented | Mandamus appropriate because district court clearly erred and order is extraordinary | Mandamus denied; petitioner failed to show clear legal error |
| Whether the administrative record must include materials indirectly considered (e.g., those relied on by subordinates) | Record must include all documents directly or indirectly considered by decision‑makers | Only documents actually before the Acting Secretary (or relevant to stated rationale) should be required | District court did not clearly err; inclusion of materials considered by subordinates is permissible |
| Whether the limited 256‑page proffer rebutted the presumption of completeness | Proffer rebutted—implausible that Acting Secretary decided on DACA solely from that sparse, public record | Proffer adequate; plaintiffs haven’t shown omission of materials undermining decision | Presumption of completeness rebutted; supplementation ordered was reasonable |
| Scope of privilege / White House materials and deliberative process materials | Privilege claims must be logged and evaluated in camera; Cheney does not categorically bar inclusion or assertion of privilege document‑by‑document | Cheney bars intrusive, categorical demands on White House; deliberative materials not part of administrative record | District court’s approach (privilege log + in camera review; balancing test) not clearly erroneous |
Key Cases Cited
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (review must be based on the full administrative record)
- Portland Audubon Soc’y v. Endangered Species Comm’n, 984 F.2d 1534 (9th Cir. 1993) (administrative record includes everything before the agency and omission can rebut presumption of completeness)
- Thompson v. U.S. Dep’t of Labor, 885 F.2d 551 (9th Cir. 1989) (record includes documents directly or indirectly considered by decision‑makers)
- Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004) (limits on intrusive discovery into high‑level Executive Branch deliberations)
- FTC v. Warner Commc’ns, Inc., 742 F.2d 1156 (9th Cir. 1984) (balancing standard for disclosure of privileged/deliberative materials)
- In re Bundy, 840 F.3d 1034 (9th Cir. 2016) (mandamus denied where district court order not clearly erroneous)