Nos. 18-587, 18-588, and 18-589
`
`
`
`IN THE
`
`
`
`
`DEPARTMENT OF HOMELAND SECURITY, ET AL.,
`Petitioners,
`
`
`
`
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
`Respondents.
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`
`BRIEF OF AMICI CURIAE ADMINISTRATIVE
`LAW PRACTITIONERS IN SUPPORT OF
`RESPONDENTS
`
`
`
`
`
`Kevin K. Russell
` Counsel of Record
`Daniel Woofter
`Charles H. Davis
`Erica Oleszczuk Evans
`GOLDSTEIN &
` RUSSELL, P.C.
`7475 Wisconsin Ave.
`Suite 850
`Bethesda, MD 20814
`(202) 362-0636
`kr@goldsteinrussell.com
`
`Additional Captions Listed on Inside Cover
`
`
`
`
`
`IN THE
`
`
`
`
`DEPARTMENT OF HOMELAND SECURITY, ET AL.,
`Petitioners,
`
`
`
`
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
`Respondents.
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`
`BRIEF OF AMICI CURIAE ADMINISTRATIVE
`LAW PRACTITIONERS IN SUPPORT OF
`RESPONDENTS
`
`
`
`
`
`Kevin K. Russell
` Counsel of Record
`Daniel Woofter
`Charles H. Davis
`Erica Oleszczuk Evans
`GOLDSTEIN &
` RUSSELL, P.C.
`7475 Wisconsin Ave.
`Suite 850
`Bethesda, MD 20814
`(202) 362-0636
`kr@goldsteinrussell.com
`
`Additional Captions Listed on Inside Cover
`
`
`
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,
`Petitioners,
`
`
`
`
`
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`COLORED PEOPLE, ET AL.,
`Respondents.
`
`On Writ of Certiorari Before Judgment
`to the United States Court of Appeals
`for the District of Columbia Circuit
`
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND
`SECURITY, ET AL.,
`
`
`
`
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.,
`Respondents.
`
`
`
`Petitioners,
`
`On Writ of Certiorari Before Judgment
`to the United States Court of Appeals
`for the Second Circuit
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`i
`TABLE OF CONTENTS
`
`In Assessing The Lawfulness Of DACA’s
`
`TABLE OF AUTHORITIES ........................................ ii
`INTEREST OF AMICI CURIAE ................................. 1
`SUMMARY OF ARGUMENT ..................................... 1
`ARGUMENT ................................................................ 5
`I. The Nielsen Memo Should Not Be Considered
`Repeal... ................................................................. 5
`A. Post-Hoc Agency Explanations Like The
`APA ................................................................. 6
`B. Even When Post-Hoc Explanations Are
`Agency Decision ............................................ 12
`II. The Reasons Given In The Nielsen Memo Are
`Arbitrary And Capricious ................................... 18
`A. Secretary Nielsen’s New Policy Reasons
`Are Each Arbitrary and Capricious ............. 18
`B. If Any Of The Nielsen Memo
`Reconsideration ............................................ 30
`CONCLUSION .......................................................... 32
`
`And
`Arbitrary
`Is
`Justifications
`Capricious, The Agency Action Must Be
`Vacated
`And
`Remanded
`For
`
`Nielsen Memo Cannot Be Considered In
`Reviewing An Agency Action Under The
`
`Allowed, They May Not Extend Beyond
`The Original Rationale Offered For An
`
`
`
`
`
`
`
`
`
`ii
`TABLE OF AUTHORITIES
`
`Cases
`
`Burlington Truck Lines, Inc. v. United States,
`371 U.S. 156 (1962) .................................................. 6
`Califano v. Sanders,
`430 U.S. 99 (1977) .................................................... 7
`Camp v. Pitts,
`411 U.S. 138 (1973) ........................................ passim
`Carnegie Nat. Gas Co. v. FERC,
`968 F.2d 1291 (D.C. Cir. 1992) .............................. 30
`Citizens to Preserve Overton Park, Inc. v. Volpe,
`401 U.S. 402 (1971) ........................................ 6, 9, 13
`Comcast Corp. v. FCC,
`579 F.3d 1 (D.C. Cir. 2009) .............................. 11, 12
`Cotton Petroleum Corp. v. U.S. Dep’t of Interior,
`870 F.2d 1515 (10th Cir. 1989) .............................. 14
`Council Tree Commc’ns, Inc. v. FCC,
`619 F.3d 235 (3d Cir. 2010) ................................... 12
`Dep’t of Commerce v. New York,
`139 S. Ct. 2551 (2019) .................................... passim
`Encino Motorcars, LLC v. Navarro,
`136 S. Ct. 2117 (2016) ...................................... 20, 25
`Envtl. Def. Fund, Inc v. Costle,
`657 F.2d 275 (D.C. Cir. 1981) ................................ 14
`Fla. Power & Light Co. v. Lorion,
`470 U.S. 729 (1985) ............................................ 6, 15
`Fogo De Chao (Holdings) Inc. v. DHS,
`769 F.3d 1127 (D.C. Cir. 2014) .............................. 30
`Forest Guardians v. Babbitt,
`174 F.3d 1178 (10th Cir. 1999) .............................. 12
`
`
`
`iii
`Idaho Farm Bureau Fed’n v. Babbitt,
`58 F.3d 1392 (9th Cir. 1995) .................................. 12
`Indus. Union Dep’t, AFL-CIO v.
`Am. Petroleum Inst.,
`448 U.S. 607 (1980) ................................................ 24
`Limnia, Inc. v. U.S. Dep’t of Energy,
`857 F.3d 379 (D.C. Cir. 2017) ................................ 10
`Martin v. OSHRC,
`499 U.S. 144 (1991) ............................................ 9, 10
`Michigan v. EPA,
`135 S. Ct. 2699 (2015) ...................................... 28, 29
`Milk Train, Inc. v. Veneman,
`310 F.3d 747 (D.C. Cir. 2002) ................................ 12
`Mingo Logan Coal Co. v. EPA,
`829 F.3d 710 (D.C. Cir. 2016) .......................... 28, 29
`Mo. Pub. Serv. Comm’n v. FERC,
`337 F.3d 1066 (D.C. Cir. 2003) ................................ 6
`Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
`State Farm Mut. Auto. Ins. Co.,
`463 U.S. 29 (1983) .................................. 3, 21, 23, 24
`Nat’l Cable & Telecomms. Ass’n v.
`Brand X Internet Servs.,
`545 U.S. 967 (2005) ................................................ 20
`PBGC v. LTV Corp.,
`496 U.S. 633 (1990) ................................................ 15
`Perez v. Mortg. Bankers Ass’n,
`135 S. Ct. 1199 (2015) ............................................ 25
`SEC v. Chenery Corp.,
`318 U.S. 80 (1943) ................................................ 6, 7
`Sierra Club v. Marsh,
`976 F.2d 763 (1st Cir. 1992) .................................. 14
`
`
`
`iv
`
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015) .................................. 15
`Yakima Valley Cablevision, Inc. v. FCC,
`794 F.2d 737 (D.C. Cir. 1986) ................................ 23
`
`Statutes
`
`Administrative Procedure Act,
`5 U.S.C. §§ 551-559, 701-706 ......................... passim
`Victims of Trafficking and Violence Protection
`Act of 2000, Pub. L. No. 106-386, 114 Stat.
`1464 ........................................................................ 21
`William Wilberforce Trafficking Victims
`Protection Reauthorization Act of 2008, Pub.
`L. No. 110-457, 122 Stat. 5044 .............................. 21
`5 U.S.C. § 553 ............................................................... 8
`5 U.S.C. § 554 ............................................................... 8
`5 U.S.C. § 556 ............................................................... 8
`5 U.S.C. § 706 ............................................................. 12
`5 U.S.C. § 706(2) .......................................................... 6
`6 U.S.C. § 202(5) .................................................... 2, 19
`8 U.S.C. § 1154(a)(1)(D)(i)(II) .................................... 21
`8 U.S.C. § 1154(a)(1)(D)(i)(IV) ................................... 21
`8 U.S.C. § 1227(d)(2) .................................................. 21
`
`
`
`
`
`
`
`
`Other Authorities
`
`v
`
`Russell Berman, Trump Reverses His Stand on
`DACA, The Atlantic (Sept. 14, 2017),
`https://www.theatlantic.com/politics/archive/
`2017/09/daca-deal-or-no-deal-trump-
`democrats-dreamers/539784/ ................................. 27
`The Department of Homeland Security’s Authority
`to Prioritize Removal of Certain Aliens
`Unlawfully Present in the United States and to
`Defer Removal of Others, 38 Op. O.L.C. __
`(Nov. 19, 2014), 2014 WL 10788677 ......................... 21
`Ronald M. Levin, “Vacation” at Sea: Judicial
`Remedies and Equitable Discretion in
`Administrative Law, 53 Duke L.J. 291 (2003) ...... 11
`Nolan D. McCaskill, Trump Says He Will Treat
`Dreamers ‘with Heart’, Politico (Feb. 16, 2017,
`2:37PM), https://www.politico.com/story/2017/
`02/trump-press-conference-dreamers-heart-
`235103 .................................................................... 27
`Memorandum from Michael D. Cronin, Acting
`Exec. Assoc. Comm’r, Office of Programs, INS,
`to Michael A. Pearson, Exec. Assoc. Comm’r,
`Office of Field Operations, INS, Victims of
`Trafficking and Violence Protection Act of
`2000 (VTVPA) Policy Memorandum #2 – “T”
`and “U” Nonimmigrant Visas (Aug. 30, 2001) ...... 19
`
`
`
`vi
`Memorandum from Janet Napolitano, Sec’y,
`DHS, to David V. Aguilar, Acting Comm’r,
`CBP, et al., Exercising Prosecutorial
`Discretion with Respect to Individuals Who
`Came to the United States as Children
`(June 15, 2012), https://www.dhs.gov/xlibrary/
`assets/s1-exercising-prosecutorial-discretion-
`individuals-who-came-to-us-as-children.pdf ......... 22
`Memorandum from Donald Neufeld, Acting
`Assoc. Dir., Office of Domestic Operations,
`USCIS, to Field Leadership, Guidance
`Regarding Surviving Spouses of Deceased U.S.
`Citizens and Their Children (Sept. 4, 2009) ......... 19
`Memorandum from Paul W. Virtue, Acting Exec.
`Assoc. Comm’r, INS, to Reg’l Dirs. et al., INS,
`Supplemental Guidance on Battered Alien
`Self-Petitioning Process and Related Issues
`(May 6, 1997) .......................................................... 19
`USCIS, Battered Spouse, Children & Parents,
`https://www.uscis.gov/humanitarian/battered-
`spouse-children-parents (last updated Feb. 16,
`2016) ....................................................................... 20
`USCIS, Deferred Action for Childhood Arrivals
`(DACA) Toolkit: Resources for Community
`Partners, https://www.uscis.gov/sites/default/
`files/USCIS/Humanitarian/Deferred%20
`Action%20for%20Childhood%20Arrivals/
`DACA_Toolkit_CP_072914.pdf (last visited
`Oct. 3, 2019) ...................................................... 22, 23
`
`
`
`vii
`USCIS, Interim Relief for Certain Foreign
`Academic Students Adversely Affected by
`Hurricane Katrina: Frequently Asked
`Questions (FAQ) (Nov. 25, 2005),
`https://www.uscis.gov/sites/
`default/files/archive/faq-interim-student-
`relief-hurricane-katrina.pdf ................................... 19
`USCIS, Victims of Criminal Activity:
`U Nonimmigrant Status,
`https://www.uscis.gov/humanitarian/victims-
`human-trafficking-other-crimes/victims-
`criminal-activity-u-nonimmigrant-status/
`victims-criminal-activity-u-nonimmigrant-
`status (last updated June 12, 2018) ...................... 20
`The White House, President Barack Obama,
`Remarks by the President on Immigration
`(June 15, 2012),
`https://obamawhitehouse.archives.gov/the-
`press-office/2012/06/15/remarks-president-
`immigration ............................................................ 26
`
`
`
`
`
`
`
`1
`INTEREST OF AMICI CURIAE1
`Amici are practitioners with decades of experience
`litigating cases in this Court and in the lower courts
`addressing questions of administrative law. Alan B.
`Morrison is the Lerner Family Associate Dean for
`Public Interest and Public Service Law at The George
`Washington University Law School. Brian Wolfman
`is Associate Professor of Law at Georgetown
`University Law Center and Director of Georgetown
`Law’s Appellate Courts Immersion Clinic.
`SUMMARY OF ARGUMENT
`I. The supplementary memorandum of former
`Department of Homeland Security (DHS) Secretary
`Kirstjen Nielsen is not properly before the Court and
`should not be considered in assessing the lawfulness
`of the repeal of the Deferred Action for Childhood
`Arrivals (DACA) program.
`A. It is settled law that “in reviewing agency
`action, a court is ordinarily limited to evaluating the
`agency’s contemporaneous explanation in light of the
`existing administrative record.” Dep’t of Commerce v.
`New York, 139 S. Ct. 2551, 2573 (2019) (emphasis
`added) (collecting authorities). Any other rule would
`be unadministrable, making the subject of review a
`moving target for litigants and the courts. Moreover,
`upholding agency decisions on the basis of new
`reasons developed during litigation would undermine
`
`
`1 No counsel for any party authored this brief in whole or in
`part, and no person or entity, other than amici curiae, their
`members, or their counsel contributed money to fund the brief’s
`preparation or submission. All parties lodged letters of blanket
`consent to the filing of amicus briefs.
`
`
`
`2
`public confidence in the administrative process,
`suggesting to the public that the agency deliberative
`process was a sham and that the agency’s initial
`explanation was pretextual.
`The Nielsen memo is the kind of post-hoc
`explanation that
`is generally prohibited—issued
`months after the initial decision and self-consciously
`designed to add reasons that were never mentioned in
`the original agency explanation.
`B. The Court has created a narrow exception to
`the contemporaneous explanation rule, for cases in
`which an agency’s original rationale is so unclear as to
`prevent judicial review. See Camp v. Pitts, 411 U.S.
`138 (1973) (per curiam). But even in that context, the
`Court has prohibited the agency from adding new
`rationales in the guise of clarifying the original basis
`for its decision. See id. at 143. Accordingly, if the
`Court were to consider the Nielsen memo, it should at
`a minimum, consistent with Camp, refuse to consider
`the memo’s attempt to add new “policy” reasons for
`DACA’s withdrawal.
`II. In any event, even if the Court were to
`consider Secretary Nielsen’s memo, the additional
`reasons it gives are arbitrary and capricious.
`A. Secretary Nielsen asserts that Congress,
`rather than DHS, should enact programs like DACA.
`But she recognizes that in 6 U.S.C. § 202(5) Congress
`has given DHS the power to establish broad
`enforcement policies and priorities, and ignores the
`Government’s repeated use of that power over the
`decades to create programs like DACA through the
`categorical use of prosecutorial discretion, some of
`which DHS continues to administer to this day. Nor
`
`
`
`3
`does Secretary Nielsen acknowledge that Congress
`has effectively ratified the use of deferred action to
`create protections for categories of individuals.
`In the same vein, Secretary Nielsen’s explanation
`that deferral discretion should be exercised only on an
`individualized, case-by-case basis is arbitrary. That
`reasoning ignores that DACA already requires a
`substantial degree of individualized consideration.
`Moreover, the Secretary failed to consider obvious and
`less drastic alternatives to full rescission, such as
`simply directing her employees to implement DACA
`with a greater degree of case-by-case consideration.
`The
`failure
`to
`consider obvious,
`less-drastic
`alternatives is arbitrary and capricious. Motor Vehicle
`Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
`Co., 463 U.S. 29, 46-48 (1983).
`Secretary Nielsen also claims that repealing
`DACA is necessary to deter the flow of illegal
`immigration by migrant teens. But she fails to
`acknowledge that DACA
`is available only to
`individuals who have lived in the United States since
`2007. The Government’s lawyers attempt to provide
`the missing reasoning, arguing that retaining DACA
`would give immigrants hope for other amnesty
`programs in the future. But that explanation is an
`impermissible post-hoc invention of appellate counsel.
`And, in any event, counsel does not explain why an
`immigrant who is willing to come to this country based
`on nothing more than the hope of a future amnesty
`program would be deterred by the repeal of DACA
`when the Secretary herself insists that all comers are
`still entitled to seek deferred status on a case-by-case
`basis and when subsequent administrations and
`
`
`
`4
`Congress remain free to reinstate or create similar
`programs in the future.
`The Secretary’s conclusory statement that the
`“asserted reliance interests [do not] outweigh the
`questionable legality of the DACA policy and other
`reasons for ending the policy,” Regents Pet. App. 125a,
`is wholly inadequate as well. That boilerplate
`assertion is not the kind of consideration of reliance
`interests this Court’s decisions require. That failure
`is not saved by the Secretary’s assertion that DACA
`recipients could still apply for deferred action on a
`case-by-case basis. The memo does not explain what
`the replacement system will entail nor assess whether
`that system will offer a real chance for relief to any
`meaningful number of those presently relying on
`DACA.
`Finally, having justified her decision on the basis
`of a cost-benefit analysis, the Secretary was obligated
`to engage in a rational weighing of the competing
`interests, which she failed to do. As noted, the memo’s
`assessment of the purported benefits (e.g., deterring
`future unlawful immigration) is irrational.
` Its
`consideration of the human and other costs of
`deporting tens of thousands of individuals from the
`only country they’ve ever known is nonexistent.
`B. If any of Secretary Nielsen’s justifications are
`arbitrary and capricious, the agency’s rescission of
`DACA must be vacated and the matter remanded for
`reconsideration.
` Although the memo contains
`boilerplate language asserting that each of the reasons
`set forth is “independently sufficient,” that claim is
`belied by the substance of the memo itself, which
`weighs the costs and benefits of repeal collectively.
`
`
`
`
`
`5
`ARGUMENT
`In September 2017, then-Acting DHS Secretary
`Elaine Duke issued a memorandum ordering an end
`to the DACA program. As respondents and others
`explain, the reasons given in that contemporaneous
`memo are arbitrary and capricious. Perhaps aware of
`the weakness of
`the original
`rationale,
`the
`Government also relies in this Court on a post-hoc
`memo
`from Acting Secretary Duke’s successor,
`Kirstjen Nielsen, purporting to provide additional
`support for her predecessor’s decision. That memo is
`not properly before the Court and should not be
`considered. Even if the Court were to consider the
`memo, however, the additional reasons it gives are no
`less arbitrary or capricious than the agency’s original
`explanation.
`I. The Nielsen Memo Should Not Be
`Considered In Assessing The Lawfulness Of
`DACA’s Repeal.
`It is settled that judicial review of agency action
`ordinarily must be based on the explanation the
`agency provided at the time of its decision. The
`Nielsen memo may not be considered in reviewing the
`legality of DACA’s repeal under that principle and
`does not fall under any recognized exception to the
`basic rule. If the Court nonetheless considers the
`memo, it should confine its review to Secretary
`Nielsen’s elaboration of the reasons originally given in
`support of DACA’s repeal and disregard the new
`“policy” reasons given as additional support.
`
`
`
`6
`A. Post-Hoc Agency Explanations Like The
`Nielsen Memo Cannot Be Considered In
`Reviewing An Agency Action Under The
`APA.
`1. It is a “settled proposition[]” of administrative
`law that “in reviewing agency action, a court is
`ordinarily
`limited
`to evaluating
`the agency’s
`contemporaneous explanation in light of the existing
`administrative record.” Dep’t of Commerce v. New
`York, 139 S. Ct. 2551, 2573 (2019) (emphasis added)
`(collecting authorities). If the court determines that
`the agency action is arbitrary or capricious based on
`that contemporaneous explanation, it “shall . . . set
`aside” the agency action.
` 5 U.S.C. § 706(2).
`Ordinarily, the matter is then remanded to the agency,
`which may elect to reopen the administrative record
`and take a new administrative action on the basis of
`new evidence or rationales. See, e.g., Fla. Power &
`Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
`Sometimes, the agency will reach the same decision as
`it did before. In that case, its renewed action is subject
`to judicial review under the Administrative Procedure
`Act (APA), 5 U.S.C. §§ 551-559, 701-706, on the basis
`of the new administrative record and the agency’s
`revised rationale. See, e.g., Mo. Pub. Serv. Comm’n v.
`FERC, 337 F.3d 1066, 1068 (D.C. Cir. 2003).
`Under this established regime, a court generally
`may not consider additional reasons proffered after
`the fact in defense of the original decision. See Dep’t
`of Commerce, 139 S. Ct. at 2573; see also, e.g., Citizens
`to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
`419 (1971) (citing Burlington Truck Lines, Inc. v.
`United States, 371 U.S. 156, 168-69 (1962); SEC v.
`Chenery Corp., 318 U.S. 80, 87 (1943), and explaining
`
`
`
`7
`that affidavits presented in litigation that purported
`to explain basis for agency decision were “merely ‘post
`hoc’ rationalizations, which have traditionally been
`found to be an inadequate basis for review”), abrogated
`on other grounds by Califano v. Sanders, 430 U.S. 99
`(1977).
`There are sound reasons for this standard
`practice. To start, constraining judicial review to the
`“grounds upon which the administrative agency acted
`[and] clearly disclosed” is necessary to preserve the
`“orderly functioning of the process of review.”
`Chenery, 318 U.S. at 94. Otherwise, the subject of
`review could become a moving target, with the agency
`constantly changing its justifications as the weakness
`of the initial rationale becomes apparent when tested
`in litigation. It is in neither the interest of the public
`nor the courts for APA review to become a game of
`whack-a-mole.
`Moreover, allowing the Government to develop
`new rationales for its actions during litigation could
`reduce agencies’ incentive to think through their
`actions thoroughly in the first instance. Indeed, it
`could even encourage agencies
`to engage
`in
`gamesmanship by issuing vague explanations of their
`actions, believing they can develop the rationale
`further during litigation, tailored to the challengers’
`specific objections.
`But perhaps most importantly, upholding an
`agency decision on the basis of new reasons developed
`during litigation would undermine public confidence
`in the administrative process.
` “The reasoned
`explanation requirement of administrative law,” the
`Court recently explained, “is meant to ensure that
`agencies offer genuine justifications for important
`
`
`
`8
`decisions, reasons that can be scrutinized by courts
`and the interested public.” Dep’t of Commerce, 139
`S. Ct at 2575-76. Allowing an agency to develop new
`reasons for its actions during litigation suggests to the
`public that the agency deliberative process was a sham
`and that the public explanation at the time of the
`decision was just a pretext. Perhaps courts could
`guard against this prospect by inquiring into whether
`the new rationale is genuinely held. But that
`alternative has its own undesirable effects, as “judicial
`inquiry into
`‘executive motivation’ represents a
`‘substantial intrusion’ into the workings of another
`branch of Government and should normally be
`avoided.” Id. at 2573 (citation omitted).
`Beyond facilitating public oversight, the APA also
`seeks to further public participation in administrative
`policymaking (e.g., by requiring public notice of certain
`kinds of proposed administrative action and requiring
`the agency to accept and take into account public
`comment). See, e.g., 5 U.S.C. § 553; see also id. §§ 554,
`556. It would make a mockery of that system to allow
`an agency to jettison the rationale emerging from that
`public process in favor of a new explanation developed
`behind closed doors in response to litigation.
`It is thus far more orderly, more conducive to
`public
`confidence
`and participation
`in
`the
`Government, and more in line with the Constitution’s
`separation of powers for a court to review the agency
`justifications as given when a decision was made and,
`if the record or rationale is found wanting, vacate the
`order and allow the agency a chance to revise its
`decision, the record, or its explanation on remand.
`2. The Nielsen memo is the kind of post-hoc
`explanation that is generally prohibited. It was issued
`
`
`
`9
`more than nine months after the initial decision,
`directly in response to litigation. And it was self-
`consciously designed to add reasons that were never
`mentioned in the original agency explanation. See
`Regents Pet. App. 120a-125a.
`The Solicitor General insists that the rule against
`post-hoc justification applies only to rationalizations of
`appellate counsel in litigation, not the agency itself.
`See U.S. Br. 29. When the explanation is given by the
`relevant agency official rather than her lawyers, the
`United States argues, the reasoning “is agency action,
`not a post hoc rationalization of it.” Id. (quoting
`Martin v. OSHRC, 499 U.S. 144, 157 (1991)).
`This Court’s precedents hold otherwise. In
`Citizens to Preserve Overton Park, for example, the
`Government submitted affidavits representing the
`position of the Secretary of Transportation. See 401
`U.S. at 409. The Court nonetheless rejected them as
`“merely ‘post hoc’ rationalizations” that provided “an
`inadequate basis for review,” id. at 419. Likewise, in
`Camp v. Pitts, 411 U.S. 138 (1973) (per curiam),
`discussed in greater detail below, the Court made a
`limited exception to permit an agency to better explain
`the basis of a prior decision, but forbade the agency
`from adding to the rationale originally given. See id.
`at 143. That limitation would make no sense if the
`Court viewed a subsequent explanation by an agency
`(as opposed to its lawyers) as constituting the relevant
`agency action, as the Government now contends.2
`
`2 The only authority the Government cites, Martin v. OSHRC,
`is inapposite. There, the Court deferred to an agency’s
`interpretation of a regulation developed during agency
`
`
`
`
`10
`The situation would be different if Secretary
`Nielsen had revoked the prior order and issued a new
`one, as the District Court for the District of Columbia
`had urged. After finding the repeal arbitrary and
`capricious based on the reasoning in the Duke memo,
`that court “vacate[d] DACA’s rescission but stay[ed]
`its order of vacatur for 90 days.” NAACP Pet. App. 66a.
`The point of the delay was to allow the agency to “cure
`the defects that the court has identified,” id. at 62a, by
`“reissu[ing] a memorandum rescinding DACA, this
`time providing a fuller explanation,” id. at 66a. Had
`Secretary Nielsen done so, her renewed order would be
`the relevant agency action, and the present challenges
`to the old order would likely be moot. But here
`Secretary Nielsen made the strategic decision not to
`replace the original order precisely to avoid mooting
`the litigation challenging the old one. See Regents Pet.
`App. 121a. The Administration may have had legal or
`political reasons for making that choice. But it was a
`strategic decision that has consequences under
`established law.
`DHS also could have asked the reviewing courts
`for a voluntary remand for further proceedings to
`supplement the administrative record. See generally
`Limnia, Inc. v. U.S. Dep’t of Energy, 857 F.3d 379, 386-
`88 (D.C. Cir. 2017). Doing so would have allowed the
`agency to provide additional support for its decision
`while maintaining the orderliness of APA review. It
`also would have preserved public confidence that any
`
`enforcement proceedings. Martin, 499 U.S. at 156-57. There is a
`world of difference between deferring
`to an agency’s
`interpretation of the legal meaning of its prior regulation and
`accepting a new post-hoc, supposedly fact-based policy rationale
`for the issuance of that regulation in the first place.
`
`
`
`11
`revision in the Administration’s position was the
`result of a genuine, deliberative process. But DHS
`passed up that opportunity as well.
`Finally, some courts have held that when an
`agency action is arbitrary or capricious on the
`contemporaneous administrative record, but
`it
`appears likely that the agency will be able to justify its
`existing decision on remand, the court can remand
`without vacating. See, e.g., Comcast Corp. v. FCC, 579
`F.3d 1, 8 (D.C. Cir. 2009); see generally Ronald M.
`Levin, “Vacation” at Sea: Judicial Remedies and
`Equitable Discretion in Administrative Law, 53 Duke
`L.J. 291 (2003). But that did not happen here either.
`In the District of Columbia litigation, the Government
`argued that the district court’s stay of its vacatur order
`amounted to a remand without vacatur. 17-cv-02325
`Doc. 76, at 1-3 (D.D.C. July 27, 2018). But the court
`corrected that misimpression, NAACP Pet. App. 90a-
`91a, and the Government does not challenge that
`explanation here. Instead, on the basis of the Nielsen
`memo, DHS asked the district court to “revise its
`Order to reject Plaintiffs’ challenges” to the original
`decision to rescind DACA. 17-cv-02325 Doc. 74, at 1
`(D.D.C. July 11, 2018). Likewise, in this Court, the
`Solicitor General does not claim that the Nielsen
`memo created a new agency action in response to a
`remand order, but instead argues that the Nielsen
`memo shows that the district court erred in ordering a
`remand in the first place. As discussed, that position
`
`
`
`established
`
`12
`this Court’s
`on
`aground
`runs
`contemporaneous explanation rule.3
`B. Even When Post-Hoc Explanations Are
`Allowed, They May Not Extend Beyond
`The Original Rationale Offered For An
`Agency Decision.
`This Court has permitted agencies to provide post-
`hoc explanations for their decisions in certain rare
`circumstances. But even then, the agency is limited to
`elucidating its original rationale and may not provide
`new reasons, as the Nielsen memo attempts to do.
`1. The controlling authority here is Camp v. Pitts.
`There, the Comptroller of the Currency denied the
`respondent a banking charter. In a brief letter, the
`Comptroller explained that he was “unable to reach a
`favorable conclusion as to the need factor,” referring to
`
`3 The questionable lawfulness of the remand-without-vacatur
`procedure provides additional reason for this Court not to treat
`the Nielsen memo as the product of such a remand. The circuits
`are divided over whether that remedy is appropriate in light of
`the APA’s plain language, which provides that upon finding an
`agency action arbitrary, capricious, or contrary to law, the court
`“shall . . . set aside [the] agency action.” 5 U.S.C. § 706 (emphasis
`added); compare Council Tree Commc’ns, Inc. v. FCC, 619 F.3d
`235, 257-58 (3d Cir. 2010) (remand without vacatur permitted),
`Comcast, 579 F.3d at 8 (same), and Idaho Farm Bureau Fed’n v.
`Babbitt, 58 F.3d 1392, 1405-06 (9th Cir. 1995) (same), with Forest
`Guardians v. Babbitt, 174 F.3d 1178, 1191 (10th Cir. 1999)
`(rejecting remand without vacatur doctrine), Comcast, 579 F.3d
`at 10 (Randolph, J., concurring) (“‘Set aside’ means vacate,
`according to the dictionaries and the common understanding of
`judges, to whom the provision is addressed. And ‘shall’ means
`‘must.’ I see no play in the joints.”), and Milk Train, Inc. v.
`Veneman, 310 F.3d 747, 757-58 (D.C. Cir. 2002) (Sentelle, J.,
`dissenting) (same).
`
`
`
`13
`one of the statutory criteria for obtaining a federal
`bank charter. 411 U.S. at 139. The court of appeals
`concluded that the basis of the denial was not spelled
`out with sufficiently clarity to permit judicial review.
`Id. at 140. It therefore ordered the trial court to hold
`a de novo hearing on the respondent’s eligibility. Id.
`This Court reversed. The Court explained that “the
`focal point
`for
`judicial review should be the
`administrative record already in existence.” Id. at
`142. For that reason, the court of appeals had erred in
`ordering the district court to decide the case on the
`basis of a record to be developed for the first time in
`court. Id. Instead, this Court held that if
`there was
`such
`failure
`to
`explain
`administrative action as to frustrate effective
`judicial review, the remedy was not to hold a
`de novo hearing but, as contemplated by
`Overton Park, to obtain from the agency,
`either through affidavits or testimony, such
`additional explanation of the reasons for the
`agency decision as may prove necessary.
`Id. at 142-43.
`The Court then added a critical “caveat.” 411 U.S.
`at 143. It explained that although the original
`decision “may have been curt,”
`it nonetheless
`“indicated the determinative reason for the final
`action taken,” (i.e., failure to satisfy the “needs”
`requirement under the statute).
` Id.
` In that
`circumstance, the Court held, the “validity of the
`Comptroller’s action must, therefore, stand or fall on
`the propriety of that finding, judged, of course, by the
`appropriate standard of review.” Id. In other words,
`any new materials must “be explanatory of the
`decisionmakers’ action at the time it occurred. No new
`
`
`
`14
`rationalizations for the agency’s decision should be
`included, and if included should be disregarded.”
`Sierra Club v. Marsh, 976 F.2d 763, 772-73 (1st Cir.
`1992) (collecting citations); see also, e.g., Envtl. Def.
`Fund, Inc v. Costle, 657 F.2d 275, 285 (D
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
