in Re United States of America v. United States District Court for the Northern District of California , San Francisco

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE U NITED S TATES OF
AMERICA; DONALD J. TRUMP ;
U.S. DEPARTMENT OF
HOMELAND S ECURITY; ELAINE
C. DUKE,
UNITED S TATES OF A MERICA;
DONALD J. TRUMP ; U.S.
DEPARTMENT OF HOMELAND
S ECURITY; E LAINE C. DUKE, in
her official capacity as Acting
Secretary of the Department of
Homeland Security,
Petitioners,
v.
UNITED S TATES D ISTRICT
C OURT FOR THE NORTHERN
D ISTRICT OF C ALIFORNIA , S AN
FRANCISCO ,
Respondent,
R EGENTS OF THE UNIVERSITY
OF C ALIFORNIA; J ANET
NAPOLITANO , in her official
capacity as president of the
No. 17-72917
D.C. Nos.
3:17-cv-05211-WHA
3:17-cv-05235-WHA
3:17-cv-05329-WHA
3:17-cv-05380-WHA
3:17-cv-05813-WHA
ORDER

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2 IN RE U NITED S TATES
University of California;
S TATE OF C ALIFORNIA; S TATE
OF M AINE; S TATE OF
M INNESOTA; S TATE OF
M ARYLAND ; C ITY OF S AN
J OSE; DULCE GARCIA; M IRIAM
GONZALEZ AVILA; V IRIDIANA
C HABOLLA M ENDOZA; N ORMA
R AMIREZ; C OUNTY OF S ANTA
C LARA; S ERVICE E MPLOYEES
INTERNATIONAL UNION LOCAL
521; J IRAYUT
LATTHIVONGSKORN ; S AUL
J IMENEZ S UAREZ,
Real Parties in Interest.
Filed December 21, 2017
Before: Kim McLane Wardlaw, Ronald M. Gould,
and Paul J. Watford, Circuit Judges.

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IN RE U NITED S TATES 3
ORDER
Pursuant to the Supreme Court’s per curiam opinion of
12/20/2017, we instruct the district court to rule on the
Government’s threshold arguments that the Secretary’s
decision to rescind DACA is unreviewable as committed to
agency discretion and that the Immigration and Nationality
Act deprives the district court of jurisdiction. The district
court should stay its order requiring completion of the
administrative record until such time as it has ruled on these
threshold issues. If the district court concludes that it has
jurisdiction and that the decision to rescind DACA is
reviewable, it should also consider arguments as to whether
some narrowing of its order requiring completion of the
administrative record is necessary and appropriate.
The district court shall also consider whether a
certification of any issues for appeal under 28 U.S.C.
§ 1292(b) is appropriate. If a certification is made, the
district court shall consider under established legal
principles whether to stay proceedings pending resolution of
the appellate issues. Further, “the District Court may not
compel the Government to disclose any document that the
Government believes is privileged without first providing
the Government with the opportunity to argue the issue.”
___ S. Ct. ___, 2017 WL 6505860, at *2.
IT IS SO ORDERED.

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