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Regents of the Univ. of Cal. v. United States Dep't of Homeland Sec. - 908 F.3d 476 (9th Cir. 2018)


The Administrative Procedure Act (APA) provides for broad judicial review of agency action. A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. 5 U.S.C.S. § 702. Thus, as a general matter, the Supreme Court has consistently articulated a strong presumption favoring judicial review of administrative action. However, the APA also forecloses judicial review under its procedures to the extent that agency action is committed to agency discretion by law. 5 U.S.C.S. § 701(a)(2). This is a very narrow exception that comes into play only in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.


Begun in 2012, Deferred Action for Childhood Arrivals (DACA) allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action—a revocable decision by the government not to deport an otherwise removable person from the country. In 2014, Secretary of Homeland Security Jeh Charles Johnson issued a memorandum that announced the related Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA. All of the policies outlined in the 2014 Johnson memorandum were enjoined nationwide in a district court order upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court. After a new presidential administration took office, Acting Secretary of Homeland Security Elaine Duke issued a memorandum in September 2017 rescinding DACA.

Suits were filed in the Northern District of California by the Regents of the University of California, a group of states led by California, the City of San Jose, the County of Santa Clara and Service Employees International Union Local 521, and a group of individual DACA recipients led by Dulce Garcia. The cases were consolidated, and the district court ordered the government to complete the administrative record. Seeking to avoid providing additional documents, the government filed a petition for mandamus, which this court denied. The government petitioned the United States Supreme Court for the same mandamus relief; the Court did not reach the merits of the administrative record dispute, but instructed the district court to rule on the government's threshold arguments challenging reviewability of its rescission decision. The district court entered a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients, and the court partially granted and partially denied the government's motion to dismiss.


Was an agency decision to end the DACA program reviewable under 5 U.S.C.S. § 702?




The Court of Appeals for the Ninth Circuit held than an agency decision to end the DACA program was reviewable under 5 U.S.C.S. § 702 because the decision did not reflect agency discretion under 5 U.S.C.S. § 701(a)(2). Rather, was based solely on a belief that the agency lacked authority to maintain DACA. Absent an action listed in 8 U.S.C.S. § 1252(g), that provision was inapplicable. The authority for deferred action in 6 U.S.C.S. § 202(5) and precedent showed that DACA was a permissible exercise of executive discretion, and thus, an arbitrary-and-capricious challenge under 5 U.S.C.S. § 706(2)(A) likely would succeed. Nationwide preliminary injunctive relief was proper. The policy statement exclusion from notice-and-comment procedures in 5 U.S.C.S. § 553(b)(3)(A) applied. Equal protection claims and, in part, due process claims survived a motion to dismiss.

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