No. 18-587
`In the Supreme Court of the United States
`
`
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
`ET AL., PETITIONERS
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`REPLY BRIEF FOR THE PETITIONERS
`
`
` NOEL J. FRANCISCO
`Solicitor General
`Counsel of Record
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
`ET AL., PETITIONERS
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`REPLY BRIEF FOR THE PETITIONERS
`
`
` NOEL J. FRANCISCO
`Solicitor General
`Counsel of Record
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`
`
`
`Cases:
`
`TABLE OF AUTHORITIES
`
`Page
`
`Alpharma, Inc. v. Leavitt, 460 F.3d 1 (D.C. Cir.
`2006) ................................................................................... 8, 9
`Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751
`(2014) ...................................................................................... 4
`Heckler v. Chaney, 470 U.S. 821 (1985) ............................. 6, 7
`I.C.C. v. Brotherhood of Locomotive Eng’rs,
`482 U.S. 270 (1987)................................................................ 6
`Munaf v. Geren, 553 U.S. 674 (2008) ..................................... 4
`Nielsen v. Preap, 138 S. Ct. 1279 (2018) ............................... 4
`Reno v. American-Arab Anti-Discrimination
`Comm., 525 U.S. 471 (1999) ................................................. 3
`Sessions v. Dimaya, 138 S. Ct. 1204 (2018) .......................... 2
`Texas v. United States, 809 F.3d 134 (2015), aff ’d by
`an equally divided Court, 136 S. Ct. 2271 (2016) ..... 3, 9, 10
`Texas v. United States, 328 F. Supp. 3d 662
`(S.D. Tex. 2018) ................................................................. 3, 9
`Trump v. Hawaii, 138 S. Ct. 2392 (2018) .......................... 2, 4
`United States v. Sanchez-Gomez, 138 S. Ct. 1532
`(2018) ...................................................................................... 2
`United States v. Texas, 136 S. Ct. 2271 (2016) ..................... 2
`
`Statute and rules:
`Administrative Procedure Act, 5 U.S.C. 701 et seq.:
`5 U.S.C. 701(a)(2) ............................................................... 6
`Sup. Ct.:
`Rule 10 ................................................................................ 2
`Rule 10(c) ........................................................................... 2
`Rule 11 ................................................................................ 2
`
`
`
`(I)
`
`
`
`II
`
`Miscellaneous:
`Stephen M. Shapiro et al., Supreme Court Practice
`(10th ed. 2013) ..................................................................... 11
`
`Page
`
`
`
`
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
`No. 18-587
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
`ET AL., PETITIONERS
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`REPLY BRIEF FOR THE PETITIONERS
`
`
`When this Court declined to grant certiorari before
`judgment to review the district court’s injunction re-
`quiring the Department of Homeland Security (DHS)
`to maintain the non-enforcement policy known as De-
`ferred Action for Childhood Arrivals (DACA), the Court
`made clear that it expected the court of appeals to “pro-
`ceed expeditiously to decide this case,” at which time
`the government could renew its request. 2/26/18 Order
`(No. 17-1003). More than ten months later, the court of
`appeals’ judgment is here and the Court is presented
`the opportunity it anticipated in February. The Court
`should now grant certiorari and resolve this important
`dispute this Term.
`1. When the government filed this petition in No-
`vember, the court of appeals had still not issued its
`judgment. The petition therefore explained (at 15-17)
`why this case met the Court’s heightened standard for
`
`(1)
`
`
`
`2
`
`certiorari before judgment. See Sup. Ct. R. 11. Re-
`spondents rely heavily on that same standard in opposi-
`tion. See, e.g., Indiv. Br. in Opp. 12 (“There is no reason
`* * * to ignore normal processes and grant review”);
`Regents Br. in Opp. 14 (arguing against “truncat[ing]
`the ordinary process”). By virtue of the intervening
`judgment, however, the certiorari decision is now gov-
`erned by the Court’s ordinary standard under Rule 10.
`And whether further review is warranted under that
`standard is not a close question. Respondents’ argu-
`ments to the contrary lack merit.
`a. Respondents contend (Indiv. Br. in Opp. 12-17)
`that review is unwarranted in the absence of a circuit con-
`flict. But certiorari is appropriate when “a United States
`court of appeals has decided an important question of
`federal law that has not been, but should be, settled by
`this Court.” Sup. Ct. R. 10(c). And the Court frequently
`reviews decisions, like the one below, that interfere with
`the implementation of federal policies and enforcement
`of federal law, particularly immigration law, without any
`conflict. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392
`(2018); United States v. Sanchez-Gomez, 138 S. Ct. 1532
`(2018); Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In-
`deed, this Court granted certiorari absent a circuit con-
`flict in United States v. Texas, 136 S. Ct. 2271 (2016), af-
`ter the Fifth Circuit affirmed a nationwide preliminary
`injunction preventing implementation of the Deferred Ac-
`tion for Parents of Americans and Lawful Permanent
`Residents (DAPA) and expanded DACA policies.
`The court of appeals’ decision here presents at least
`as strong a case for this Court’s review. The district
`court’s nationwide injunction commands the govern-
`ment to preserve a policy that affirmatively sanctions
`the ongoing violation of federal law by 700,00 aliens who
`
`
`
`
`
`3
`
`have no lawful immigration status and no right to
`the policy’s continuation. Cf. Reno v. American-Arab
`Anti-Discrimination Comm., 525 U.S. 471, 491 (1999)
`(AADC). Absent this Court’s intervention, the govern-
`ment will be required to maintain the policy nationwide
`for years after DHS and the Attorney General deter-
`mined that it should end.
`Moreover, there is a circuit conflict. In Texas v.
`United States, the Fifth Circuit held that the DAPA and
`expanded DACA policies were “manifestly contrary” to
`the Immigration and Nationality Act (INA). 809 F.3d
`134, 186 (2015) (Texas I), aff ’d by an equally divided
`Court, 136 S. Ct. 2271 (2016). As the district court that
`enjoined those policies has recognized, the Fifth Cir-
`cuit’s reasoning applies equally to DACA. See Texas v.
`United States, 328 F. Supp. 3d 662, 723 (S.D. Tex. 2018)
`(Texas II). Indeed, although the Ninth Circuit at-
`tempted to distinguish Texas I in some respects, it ulti-
`mately disagreed with critical portions of the Fifth Cir-
`cuit’s reasoning. Compare Texas I, 809 F.3d at 179, 186
`(concluding that in identifying several “narrow classes”
`of aliens eligible for deferred action, Congress “fore-
`closed” the creation of broad new categories), with
`Supp. Br. App. 54a (“We think the much more reasona-
`ble conclusion is that in * * * instructing that this and
`that ‘narrow class[]’ of noncitizens should be eligible for
`deferred action, Congress meant to say nothing at all
`about the underlying power of the Executive Branch to
`grant the same remedy to others.”) (citation omitted;
`brackets in original). And the Ninth Circuit did not
`even try to square its determination that DACA is law-
`ful with the Fifth Circuit’s determination that expanded
`DACA was not. See id. at 55a (finding “the Texas court’s
`
`
`
`
`
`4
`
`treatment of the DACA expansion” not “to be strong
`persuasive authority”).
`b. Respondents argue (Indiv. Br. in Opp. 17-19) that
`the interlocutory posture of this case is reason to deny
`review. But the Court reviews interlocutory decisions
`presenting important legal issues. See, e.g., Trump v.
`Hawaii, supra; Nielsen v. Preap, 138 S. Ct. 1279 (2018);
`Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751
`(2014). Again, the Court granted certiorari in Texas to
`review the preliminary injunction against the DAPA and
`expanded DACA policies. Just as in Texas, even if the
`question were only whether to maintain the nationwide
`“status quo” while litigation proceeds, Regents Br. in
`Opp. 22, in a case of this magnitude the answer should
`come from this Court.
`In any event, respondents are plainly wrong to as-
`sert (Regents Br. in Opp. 15) that it would be difficult
`for the Court to “fully resolve the litigation at this
`stage.” This Court always has the authority, in review-
`ing a preliminary injunction, to “address the merits” of
`the litigation when appropriate. Munaf v. Geren, 553
`U.S. 674, 691 (2008). Moreover, the district court also
`certified for interlocutory appeal its order resolving the
`government’s motion to dismiss, in which the govern-
`ment sought to dismiss the entire case. And the court of
`appeals affirmed that order alongside the preliminary in-
`junction. Supp. Br. App. 61a-77a. If this Court grants
`certiorari and agrees with the government on the mer-
`its, termination of this litigation would thus not only be
`“[]possible,” Regents Br. in Opp. 15, but inevitable.
`Respondents also err in contending (Regents Br. in
`Opp. 18) that the earlier dispute about the scope of the
`record counsels against further review. Respondents
`themselves recognize (ibid.) that the Court does not
`
`
`
`
`
`5
`
`need to resolve any record issues to review the prelimi-
`nary injunction itself. The Court would also, of course,
`not need to resolve the scope of the record for APA re-
`view if it determines the rescission is not reviewable un-
`der the APA at all. If the Court determines that the
`merits of respondents’ claim are reviewable under the
`APA, it may need to determine the scope of the record.
`But that subsidiary question itself is one on which the
`lower courts are in need of this Court’s guidance. See,
`e.g., 138 S. Ct. 443.
`c. Contrary to respondents’ assertions (Indiv. Br. in
`Opp. 21), the government’s conduct has been consistent
`with the need for prompt resolution of this dispute. It
`has so advocated from the very start of this litigation,
`and it has made considerable effort in all of these cases
`to make it possible—filing briefs in advance of court-
`ordered deadlines, seeking expedition, and seeking cer-
`tifications for interlocutory appeal of dispositive rul-
`ings. Respondents nevertheless fault (State Br. in Opp.
`16) the government for not requesting stays of the in-
`junctions here and in the related cases. But seeking
`such relief is not a prerequisite to seeking certiorari.
`And the government has taken other steps to ensure
`that the injunctions are not unnecessarily prolonged, in-
`cluding filing a petition for a writ of certiorari before
`judgment within days of the entry of the first injunction
`and filing this petition in time for the Court to hear this
`dispute in the ordinary course before the end of this Term.
`d. Finally, a decision from this Court would not “pre-
`empt the political process.” Indiv. Br. in Opp. 24. A deci-
`sion concerning DHS’s authority to rescind DACA would
`say nothing about Congress’s unquestioned power to al-
`ter the immigration status of DACA recipients. And if
`anything, it is the preliminary injunction obtained by
`
`
`
`
`
`6
`
`respondents and the legal uncertainty surrounding the
`rescission that is impeding legislative efforts.
`2. Review of the court of appeals’ judgment is fur-
`ther warranted because the decision is wrong.
`a. Establishing enforcement policies is a type of
`agency action that “traditionally” has been regarded
`as unsuitable for judicial review, Heckler v. Chaney,
`470 U.S. 821, 832 (1985), and is therefore “committed to
`agency discretion by law,” 5 U.S.C. 701(a)(2). Pet. 17-
`21. Respondents argue (State Br. in Opp. 19-22) that
`rule does not apply because DHS supposedly based its
`rescission decision solely on a legal conclusion—
`namely, that DACA is unlawful. But even if Chaney
`“left open” whether resting on a legal ground can ren-
`der a traditionally unreviewable decision reviewable, id.
`at 19 (citation omitted), this Court’s subsequent deci-
`sion in I.C.C. v. Brotherhood of Locomotive Engineers,
`482 U.S. 270, 283 (1987) (BLE), removes any doubt. See
`Supp. Br. App. 82a (Owens, J., concurring in the judg-
`ment). As the BLE Court explained, agency actions fall-
`ing within a “tradition of nonreviewability” do not “be-
`come[] reviewable” any time they rest on the agency’s
`view of the underlying legal regime. 482 U.S. at 282-283.
`Indeed, “a common reason for failure to prosecute an
`alleged criminal violation is the prosecutor’s belief
`(sometimes publicly stated) that the law will not sustain
`a conviction,” yet it is “entirely clear” that such deci-
`sions are unreviewable. Id. at 283.
`In any event, DACA’s rescission is also based on con-
`cerns about the implications of maintaining a non-
`enforcement policy of questionable legality and other
`policy concerns. See Pet. 23-28. In other words, it re-
`flects the sort of “complicated balancing of a number of
`
`
`
`
`
`7
`
`factors which are peculiarly within [the agency’s] exper-
`tise” that makes enforcement discretion traditionally
`unreviewable. Chaney, 470 U.S. at 831. Particularly in
`light of Secretary Nielsen’s official memorandum
`clearly stating that these concerns justify rescinding
`DACA “whether the courts would ultimately uphold
`[the policy] or not,” Pet. App. 123a, judicial review of
`such a decision is not required to “ensur[e] clear public
`accountability for government actions.” State Br. in
`Opp. 21.
`Respondents also briefly repeat (State Br. in Opp.
`19) the district court’s theory that programmatic deter-
`minations of enforcement priorities are “different from
`day-to-day agency nonenforcement decisions.” Pet. App.
`28a (citation omitted). The court of appeals declined to
`endorse that theory for good reason: it is flatly contrary
`to Chaney, which itself concerned the programmatic de-
`termination whether to enforce the Federal Food, Drug,
`and Cosmetics Act with respect to drugs used to admin-
`ister the death penalty. See 470 U.S. at 824-825.
`b. Even if the decision were reviewable, it was emi-
`nently reasonable for DHS to rescind DACA based on
`three independent rationales.
`First, the rescission is supported by DHS’s serious
`doubts about the legality of the policy. Pet. 23-27. Con-
`trary to respondents’ assertions (Regents Br. in Opp.
`32), that rationale is readily discernible from the Duke
`memorandum—which explained that, in light of the
`Texas decisions and the Attorney General’s letter, the
`DACA policy “should be terminated,” not that it must.
`Pet. App. 117a (emphasis added). Acting Secretary
`Duke rescinded the policy “[i]n the exercise of [her] au-
`thority in establishing national immigration policies and
`priorities,” not as compelled by law. Ibid. And in any
`
`
`
`
`
`8
`
`event, the Nielsen memorandum removes any doubt
`whether the rescission rests on concerns about main-
`taining an enforcement policy of questionable legality,
`independent of its ultimate legality. See id. at 123a.
`Respondents contend (Indiv. Br. in Opp. 31-32) that
`the government did not adequately consider either poten-
`tial non-merits defenses to a lawsuit by the Texas plain-
`tiffs or DACA recipients’ reliance interests. But there
`are “sound reasons for a law enforcement agency to
`avoid discretionary policies that are legally questiona-
`ble,” wholly apart from whether those policies will ulti-
`mately be invalidated by courts, including “the risk that
`such policies may undermine public confidence in and
`reliance on the agency and the rule of law.” Pet. App.
`123a. Respondents also provide no basis for second-
`guessing DHS’s conclusion that these concerns “out-
`weigh” any reliance interests that DACA recipients may
`assert in the maintenance of such a policy. Id. at 125a.
`Second, the rescission is justified by independent
`policy concerns that Secretary Nielsen explained would
`support rescission “[e]ven if a policy such as DACA
`could be implemented lawfully.” Pet. App. 124a; see
`Pet. 27-28. Respondents insist that the Court ignore
`these concerns because the Nielsen memorandum was
`not a “ ‘fresh agency action’ (a Rescission 2.0).” Indiv.
`Br. in Opp. 33 (citation omitted). Respondents would
`apparently require DHS to reset this protracted litiga-
`tion by issuing a “new” independent agency decision on
`DACA before the current Secretary could offer any fur-
`ther explanation of the rescission. But where, as in
`NAACP, a court determines that an agency’s initial ex-
`planation is insufficient and requests further explana-
`tion, “it is incumbent upon the court to consider that ex-
`planation when it arrives.” Alpharma, Inc. v. Leavitt,
`
`
`
`
`
`9
`
`460 F.3d 1, 6 (D.C. Cir. 2006). That is particularly ap-
`propriate here, given that every court to have ad-
`dressed the question has agreed that the rescission did
`not require notice-and-comment rulemaking and there-
`fore the Nielsen memorandum itself satisfies the proce-
`dural requirements for a new agency action.
`Third, the rescission is supported by DHS’s correct
`determination that the DACA policy is unlawful. Pet.
`28-30. Although respondents criticize (State Br. in Opp.
`23-25) DHS for failing to sufficiently explain its legal
`reasoning, it was utterly reasonable for DHS to rely on
`the Fifth Circuit’s detailed analysis of the closely re-
`lated DAPA and expanded DACA policies. See Pet.
`App. 122a (“Any arguable distinctions between the DAPA
`and DACA policies are not sufficiently material to convince
`me that the DACA policy is lawful.”).
`Respondents remarkably contend that the Texas I
`decision is “inapposite.” Indiv. Br. in Opp. 30 (citation
`omitted). They observe (Regents Br. in Opp. 32) that
`the Fifth Circuit cited INA provisions that create a
`mechanism for aliens to derive lawful immigration sta-
`tus from the status of their U.S. citizen children. Be-
`cause no parallel pathway to lawful status allegedly ex-
`ists for DACA recipients, respondents contend that no
`direct conflict with the INA exists here. Ibid.; see Supp.
`Br. App. 52a. But the pathway to lawful status in Texas
`I is available to only some of the aliens who would have
`qualified for DAPA, see 809 F.3d at 179-180 (not for par-
`ents of lawful permanent residents), and to none of the
`aliens who would have qualified for expanded DACA,
`see Texas II, 328 F. Supp. 3d at 724. A direct conflict
`with those particular provisions therefore could not
`have been necessary to the Fifth Circuit’s judgment.
`They are simply part of the “INA’s specific and intricate
`
`
`
`
`
`10
`
`provisions” that preclude DHS from creating vast new
`deferred-action policies. Texas I, 809 F.3d at 186.
`Respondents also observe (Regents Br. in Opp. 32)
`that DAPA would have been available to approximately
`4.3 million aliens, while DACA has been granted to
`“only” around three quarters of a million aliens. But
`that difference cannot be ascribed “legal significance.”
`Texas II, 328 F. Supp. 3d at 724 (emphasis omitted). At
`the outset, the right comparator is not the number of
`aliens granted DACA, but the number qualified to request
`it: approximately 1.5 million. See id. at 676. In either
`case, a non-enforcement policy affecting 700,000 or 1.5
`million aliens is plainly a policy of “vast ‘economic and
`political significance’ ” to which the Fifth Circuit’s anal-
`ysis applies. Texas I, 809 F.3d at 183 (citation omitted).
`c. Finally, the court of appeals erred in affirming
`the denial of the government’s motion to dismiss the
`other ancillary claims. Pet. 30-31. No respondent de-
`fends the court’s due-process ruling. Cf. State Br. in
`Opp. 31-32 (urging only that the Court decline to review
`it). As for equal protection, respondents make the puz-
`zling contention that this Court’s decision in AADC
`does not apply because this case purportedly does not
`implicate AADC’s concerns about “inhibiting prosecu-
`torial discretion, allowing continuing violations of immi-
`gration law, and impacting foreign relations.” Id. at 32
`(citation omitted). But respondents assert an equal-
`protection claim in an effort to prevent DHS from re-
`scinding a discretionary non-enforcement policy sanc-
`tioning the ongoing violation of federal immigration law
`by 700,000 aliens based, at least in part, on their asser-
`tion that the primary beneficiaries of that policy are na-
`tionals of certain foreign countries. That claim, of
`course, directly implicates the AADC Court’s concerns.
`
`
`
`
`
`11
`
`In any event, respondents have not adequately pleaded
`an equal-protection claim even if AADC does not apply.
`See Pet. 31.
`3. The Court should also grant the government’s pe-
`tition in Trump v. NAACP, No. 18-588 (filed Nov. 5,
`2018). Granting certiorari before judgment in NAACP
`would eliminate any argument that the Nielsen memo-
`randum is not squarely before the Court—a course that
`seems particularly prudent given respondents’ failure
`to offer any response to the content of that memoran-
`dum here. The Court may also wish to grant the peti-
`tion in Nielsen v. Batalla Vidal, No. 18-589 (filed Nov.
`5, 2018), despite the overlapping claims, to ensure the
`fullest presentation of the issues. Supp. Br. 11.
`Respondents in those cases also oppose certiorari by
`arguing that the government has not demonstrated “ex-
`igent circumstances” justifying certiorari under Rule
`11. NAACP Br. in Opp. 13. But the Court grants certi-
`orari before judgment “not only in cases of great public
`emergency but also in situations where similar or iden-
`tical issues of importance [are] already pending before
`the Court and where it [i]s considered desirable to re-
`view simultaneously the questions posed in the case still
`pending in the court of appeals.” Stephen M. Shapiro
`et al., Supreme Court Practice § 2.4, at 86 (10th ed.
`2013); see Supp. Br. 11. That rationale applies here.
`
`
`
`
`
`12
`
`* * * * *
`For the foregoing reasons and those stated in the pe-
`tition for a writ of certiorari and supplemental brief, the
`petition should be granted. The petition in Trump v.
`NAACP, No. 18-588 (filed Nov. 5, 2018), should also be
`granted and the case consolidated with this one. The
`petition in Nielsen v. Batalla Vidal, No. 18-589 (filed
`Nov. 5, 2018), should either be granted and consolidated
`or, at a minimum, be held pending resolution of the
`other petitions and any further proceedings in this
`Court.
`Respectfully submitted.
`
` NOEL J. FRANCISCO
`Solicitor General
`
`
`JANUARY 2019
`
`
`
`
`
`
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