Nos. 18-587, 18-588, 18-589
`
`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.,
`Respondents.
`
`_______________
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,
`Petitioners,
`
`
`v.
`
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.,
`Respondents.
`
`_______________
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND SECURITY, ET AL.,
`Petitioners,
`
`
`v.
`
`MARTIN JONATHAN BATALLA VIDAL, ET AL.,
`Respondents.
`
`_______________
`
`On Writ Of Certiorari To The United States Court Of Appeals
`For The Ninth Circuit And Writs of Certiorari Before Judgment To
`The United States Courts Of Appeals For The District Of Columbia
`And Second Circuits
`_______________
`
`JOINT MOTION OF RESPONDENTS FOR
`ENLARGEMENT OF ARGUMENT TIME AND DIVIDED ARGUMENT
`AND RESPONSE TO MOTION BY STATE OF TEXAS FOR LEAVE
`TO PARTICIPATE IN ORAL ARGUMENT
`
`
`
`
`
`
`
`
`
`
`
`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.,
`Respondents.
`
`_______________
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,
`Petitioners,
`
`
`v.
`
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.,
`Respondents.
`
`_______________
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND SECURITY, ET AL.,
`Petitioners,
`
`
`v.
`
`MARTIN JONATHAN BATALLA VIDAL, ET AL.,
`Respondents.
`
`_______________
`
`On Writ Of Certiorari To The United States Court Of Appeals
`For The Ninth Circuit And Writs of Certiorari Before Judgment To
`The United States Courts Of Appeals For The District Of Columbia
`And Second Circuits
`_______________
`
`JOINT MOTION OF RESPONDENTS FOR
`ENLARGEMENT OF ARGUMENT TIME AND DIVIDED ARGUMENT
`AND RESPONSE TO MOTION BY STATE OF TEXAS FOR LEAVE
`TO PARTICIPATE IN ORAL ARGUMENT
`
`
`
`
`
`
`
`
`
`
`
`In accordance with Supreme Court Rules 21, 28.3, and 28.4, the forty-five re-
`
`spondents in these consolidated proceedings respectfully move to enlarge the total
`
`time for oral argument and to divide oral argument time. Respondents ask the Court
`
`to extend the total time for oral argument to eighty minutes, and to divide the forty
`
`minutes for respondents evenly between Theodore Olson, who would speak on behalf
`
`of the individual and other non-state respondents, and California Solicitor General
`
`Michael Mongan, who would speak on behalf of the twenty state respondents and the
`
`District of Columbia. The State of Texas, amicus curiae supporting petitioners, has
`
`also moved to participate in oral argument. Respondents do not oppose that motion,
`
`provided that any time allocated to Texas comes out of the time allotted to petitioners,
`
`allowing for an equal division of time on both sides.
`
`Counsel for respondents have conferred with the Office of the Solicitor General,
`
`and the position of petitioners is as follows: “The government takes no position on
`
`respondents’ requests to expand oral argument to 40 minutes per side or to divide the
`
`time allotted to respondents between state and non-state respondents. The govern-
`
`ment opposes respondents’ suggestion that, if the State of Texas is granted argument
`
`time, that time should be taken exclusively from the government’s allotted argument
`
`time. Texas has not requested that and Texas supports respondents on one of the
`
`two questions presented. Accordingly, as previously stated, the government opposes
`
`any change in the allotted argument time that would result either in the govern-
`
`ment’s receiving less than the currently allotted 30 minutes of argument time or in
`
`the government’s receiving less time than respondents.”
`
`
`
`
`
`
`
`STATEMENT
`
`1. These consolidated proceedings arise out of nine separate lawsuits filed by
`
`respondents in district courts in California, New York, and the District of Columbia.
`
`Each suit challenged petitioners’ decision to terminate the Deferred Action for Child-
`
`hood Arrivals (DACA) policy and alleged, among other things, that the decision was
`
`arbitrary, capricious, or otherwise not in accordance with law under the Administra-
`
`tive Procedure Act, 5 U.S.C. § 706(2)(A).
`
`In No. 18-587, the respondents are individual DACA recipients, States, a pub-
`
`lic university system, a county, a city, and a labor union, who collectively filed five
`
`separate suits in the Northern District of California. The district court granted a
`
`partial preliminary injunction on the grounds that respondents were likely to succeed
`
`on the merits of their APA claim, Regents Pet. App. 1a-70a, and denied in part peti-
`
`tioners’ motion to dismiss, see id. at 71a-90a. The Ninth Circuit affirmed the district
`
`court’s decision. Regents Supp. App. 1a-78a.
`
`In No. 18-588, the respondents are an individual DACA recipient, a company,
`
`a private university, a civil rights organization, and labor unions who filed two sepa-
`
`rate suits in the District Court for the District of Columbia. The district court entered
`
`a final judgment vacating the decision to terminate DACA based on its conclusion
`
`that the agency’s decision was arbitrary and capricious. NAACP Pet. App. 1a-74a.
`
`In No. 18-589, the respondents are individual DACA recipients, a nonprofit
`
`serving and employing DACA recipients, and States, who filed two separate suits in
`
`the Eastern District of New York. The district court entered a preliminary injunction
`
`
`
`2
`
`
`
`co-extensive with the Northern District of California’s on that basis of respondents’
`
`APA claim. Batalla Vidal Pet. App. 62a-129a. It also denied in part petitioners’ mo-
`
`tion to dismiss. Id. at 147a-157a.
`
`2. On June 28, 2019, this Court granted certiorari in No. 18-587, granted cer-
`
`tiorari before judgment in Nos. 18-588 and 18-589, consolidated the cases, and allot-
`
`ted a total of one hour for oral argument.
`
`3. The State of Texas has filed an amicus curiae brief in support of petitioners
`
`on behalf of itself and certain other States. On September 20, 2019, the State of
`
`Texas moved for leave to participate in oral argument. Texas requests 10 minutes of
`
`argument time.
`
`ARGUMENT
`
`1. These consolidated cases present the important questions whether petition-
`
`ers’ decision to terminate the DACA policy is subject to judicial review and whether
`
`that decision was lawful, in particular whether it was arbitrary, capricious, or other-
`
`wise not in accordance with law, 5 U.S.C. § 706(2)(A).
`
`Respondents have a range of distinct interests and perspectives. The individ-
`
`ual respondents are all DACA recipients who have structured their lives around the
`
`DACA policy and stand to lose their deferred action, along with work authorization
`
`and other benefits, if the decision to terminate the policy stands. The private entity
`
`respondents are, among other things, employers and universities who have made sub-
`
`stantial investments in recruiting, hiring, training, and educating DACA recipients.
`
`
`
`3
`
`
`
`And the respondent States, their institutions, and their political subdivisions cur-
`
`rently have more than 350,000 residents who are DACA recipients; directly employ
`
`DACA recipients; have enrolled DACA recipients in their public schools, colleges, and
`
`universities; and stand to lose billions of dollars in tax revenue and suffer other harms
`
`if DACA is rescinded.
`
`The proposed equal division of argument time will ensure that the various re-
`
`spondents have their interests fully represented, and that the Court receives a full
`
`understanding of the perspectives and arguments of all respondents. Theodore Ol-
`
`son, counsel for certain individual respondents, would represent the interests of the
`
`individual and other non-State respondents. Michael Mongan, the California Solici-
`
`tor General, would represent the interests of the States. Both are members in good
`
`standing of the bar of this Court and experienced counsel.
`
`This proposed division is particularly appropriate here because respondents
`
`include individual DACA recipients, who are most directly affected by the challenged
`
`government action (along with entities that work closely with them), as well as
`
`States, which as sovereign governments have unique interests that private parties
`
`cannot adequately represent. For that reason, the States have filed their own briefs
`
`in the courts of appeals and this Court in the two proceedings in which they are re-
`
`spondents; and in both of those proceedings they presented their own oral arguments
`
`in the courts of appeals, alongside counsel for the non-state respondents. This Court
`
`has regularly divided argument when States and private parties appear on the same
`
`side of the case. See, e.g., Dep’t of Commerce v. New York, 139 S. Ct. 1543 (2019)
`
`
`
`4
`
`
`
`(mem.) (State of New York and private respondents); American Legion v. American
`
`Humanist Ass’n, 139 S. Ct. 951 (2019) (mem.) (Maryland-National Capital Park and
`
`Planning Commission and private petitioners); Masterpiece Cakeshop, Ltd. v. Colo-
`
`rado Civil Rights Comm’n, 138 S. Ct. 466 (2017) (mem.) (State of Colorado and private
`
`respondents); Friedrichs v. California Teachers Ass’n, 136 S. Ct. 566 (2015) (mem.)
`
`(State of California and union respondents). See also Stephen M. Shapiro, et al., Su-
`
`preme Court Practice 777 (10th ed. 2013) (“Having more than one lawyer argue on a
`
`side is justifiable . . . when they represent different parties with different interests or
`
`positions.”).
`
`2. Additional argument time for respondents and petitioners is also warranted
`
`here. These cases present important questions of administrative law, including about
`
`the reviewability of agency action. The underlying dispute over petitioners’ termina-
`
`tion of the DACA policy is also one of great national importance. That policy has
`
`allowed nearly 800,000 young people—who arrived in this country as children and
`
`are productive and law-abiding residents—to receive deferred action. Petitioners’
`
`termination of DACA, which each of the lower courts held to be unlawful (or likely
`
`unlawful), would deprive these individuals of deferred action and would harm their
`
`families, schools, employers, and communities. This case is also unusually complex,
`
`in the sense that it involves a number of different issues and arguments; the Califor-
`
`nia, New York, and D.C. proceedings are each in different procedural postures; and
`
`the courts below took distinct analytical approaches to resolving the questions pre-
`
`sented here.
`
`
`
`5
`
`
`
`This Court has routinely enlarged argument time in cases addressing matters
`
`of similar importance and complexity, including when it allowed ninety minutes of
`
`total argument time in an earlier challenge to the related Deferred Action for Parents
`
`of Americans and Lawful Permanent Residents (DAPA) policy. United States v.
`
`Texas, 136 S. Ct. 1539 (2016) (mem.); see also Dep’t of Commerce, 139 S. Ct. 1543;
`
`American Legion, 139 S. Ct. 951; Michigan v. EPA, 135 S. Ct. 1541 (2015) (mem.);
`
`Obergefell v. Hodges, 135 S. Ct. 1039 (2016) (mem.); Friedrichs, 136 S. Ct. 566; Nat’l
`
`Fed’n of Indep. Bus. v. Sebelius, 565 U.S. 1193 (2012) (mem.).
`
`3. Respondents do not oppose Texas’s motion to participate in oral argument,
`
`provided that any time given to Texas comes out of the total time allocated to peti-
`
`tioners. As its motion makes clear, Texas’s “interests are parallel to” those of peti-
`
`tioners, Motion at 1; the amicus brief it filed in these proceedings is styled as a brief
`
`in support of petitioners and argues (like petitioners) that the challenged DHS action
`
`rescinding DACA was lawful, and indeed Texas is pursuing separate litigation chal-
`
`lenging the legality of the DACA policy that the government rescinded here. Alt-
`
`hough Texas disagrees with petitioners’ arguments on reviewability, that issue is not
`
`the focus of the arguments it has made in this Court; indeed, its amicus brief offers
`
`just four paragraphs on that subject. See Br. at 30-32. Moreover, respondents will
`
`fully present the arguments for reviewability, including from the perspective of the
`
`states.
`
`
`
`
`
`
`
`6
`
`
`
`CONCLUSION
`
`For the foregoing reasons, respondents respectfully request that the Court en-
`
`large the total time for oral argument to eighty minutes, with forty minutes allocated
`
`to petitioners (and Texas if allowed to participate) and forty to respondents. Respond-
`
`ents further request that the Court divide the time allocated to respondents equally
`
`between Theodore Olson, who would speak on behalf of the individual and other non-
`
`state respondents, and California Solicitor General Michael Mongan, who would
`
`speak on behalf of the state respondents.
`
`Respectfully submitted,
`
`September 26, 2019
`
`
` /s/ Michael J. Mongan
`MICHAEL JAMES MONGAN
` SOLICITOR GENERAL
`OFFICE OF ATTORNEY GENERAL
`XAVIER BECERRA
`STATE OF CALIFORNIA
`455 Golden Gate Ave, Suite 11000
`San Francisco, CA 94102
`(415) 510-3920
`michael.mongan@doj.ca.gov
`
`Counsel for Respondents States of
`California, Maine, Maryland, and
`Minnesota
`
`
`
`
`
`
`
`
`
`
`
`
`7
`
` /s/ Theodore B. Olson
`THEODORE B. OLSON
` Counsel of Record
`THEODORE J. BOUTROUS, JR.
`STUART F. DELERY
`ETHAN D. DETTMER
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Ave, NW
`Washington, DC 20036
`(202) 955-8500
`TOlson@gibsondunn.com
`
`Counsel for Respondents Dulce Garcia,
`Miriam Gonzalez Avila, Saul Jimenez
`Suarez, Viridiana Chabolla Mendoza,
`Norma Ramirez, Jirayut Latthivong-
`skorn
`
`
`
`
`
`
`
`
`
`Agreed to by:
`
`BARBARA D. UNDERWOOD
` SOLICITOR GENERAL
`OFFICE OF ATTORNEY GENERAL
`LETITIA JAMES
`STATE OF NEW YORK
`28 Liberty St
`New York, NY 10005
`(212) 416-8016
`barbara.underwood@ag.ny.gov
`
`Counsel for Respondents States of New
`York, Massachusetts, Washington, Colo-
`rado, Connecticut, Delaware, Hawai‘i, Il-
`linois, Iowa, New Mexico, North Caro-
`lina, Oregon, Pennsylvania, Rhode Is-
`land, Vermont, and Virginia, and the
`District of Columbia
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`8
`
`Agreed to by:
`
`STACEY M. LEYTON
`ALTSHULER BERZON, LLP
`177 Post St, Suite 300
`San Francisco, CA 94108
`(415) 421-7151
`sleyton@altshulerberzon.com
`
`Counsel for Respondents County of
`Santa Clara and Service Employees
`International Union Local 521
`
`ROBERT A. LONG JR.
`COVINGTON & BURLING, LLP
`One CityCenter
`850 Tenth St, NW
`Washington, DC 20001
`(202) 662-5612
`rlong@cov.com
`
`Counsel for Respondents Regents of the
`University of California and Janet
`Napolitano, President of the University
`of California
`
`MICHAEL J. WISHNIE
`MUNEER I. AHMAD
`JEROME N. FRANK LEGAL SERVICES OR-
`GANIZATION
`P.O. Box 209090
`New Haven, CT 06520
`(203) 432-4800
`michael.wishnie@yale.edu
`
`Counsel for Respondents Martin
`Jonathan Batalla Vidal, Antonio
`Alarcon, Eliana Fernandez, Carlos
`Vargas, Mariano Mondragon, Carolina
`Fung Feng, and Make the Road New
`York
`
`
`
`
`
`
`LINDSAY C. HARRISON
`JENNER & BLOCK, LLP
`1099 New York Ave, NW, Suite 900
`Washington, DC 20001
`(202) 639-6000
`lharrison@jenner.com
`
`Counsel for Respondents Trustees of
`Princeton University, Microsoft
`Corporation, and Maria De La Cruz
`Perales Sanchez
`
`JOSEPH M. SELLERS
`COHEN MILSTEIN SELLERS & TOLL
`PLLC
`1100 New York Ave., N.W.
`Fifth Floor
`Washington, DC 20005
`(202) 408-4600
`
`Counsel for Respondents NAACP;
`American Federation of Teachers,
`AFLCIO; and United Food and
`Commercial Workers International
`Union, AFLCIO, CLC
`
`
`JUSTIN T. BERGER
`COTCHETT, PITRE &MCCARTHY, LLP
`840 Malcolm Road, Suite 200
`Burlingame, CA 94010
`(650) 697-6000
`jberger@cpmlegal.com
`
`Counsel for Respondent City of
`San José
`
`
`
`
`
`
`
`9
`
`
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