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 UNITED STATES OF
AMERICA; DONALD J. TRUMP;
U.S. DEPARTMENT OF
HOMELAND SECURITY; ELAINE
C. DUKE,
UNITED STATES OF AMERICA;
DONALD J. TRUMP; U.S.
DEPARTMENT OF HOMELAND
SECURITY; ELAINE C. DUKE, in
her official capacity as Acting
Secretary of the Department of
Homeland Security,
Petitioners,
v.
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA, SAN
FRANCISCO,
Respondent,
REGENTS OF THE UNIVERSITY
OF CALIFORNIA; JANET
NAPOLITANO, In her official
capacity as President of the
University of California; STATE
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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IN RE UNITED STATES OF AMERICA 2
OF CALIFORNIA; STATE OF
MAINE; STATE OF MINNESOTA;
STATE OF MARYLAND; CITY OF
SAN JOSE; DULCE GARCIA;
MIRIAM GONZALEZ AVILA;
VIRIDIANA CHABOLLA
MENDOZA; NORMA RAMIREZ;
COUNTY OF SANTA CLARA;
SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL
521; JIRAYUT
LATTHIVONGSKORN; SAUL
JIMENEZ SUAREZ,
Real Parties in Interest.
Petition for Writ of Mandamus
Argued and Submitted November 7, 2017
Pasadena, California
Filed November 16, 2017
Before: Kim McLane Wardlaw, Ronald M. Gould, and
Paul J. Watford, Circuit Judges.
Order by Judges Wardlaw and Gould;
Dissent by Judge Watford

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IN RE UNITED STATES OF AMERICA 3
SUMMARY*
Mandamus / Immigration
The panel denied the government’s petition for a writ of
mandamus that asked the court to permanently stay the
district court’s order requiring the government to complete
the administrative record in five cases challenging the
rescission of the Deferred Action for Childhood Arrivals
policy.
The panel held that the government had not met the high
bar required for mandamus relief because the district court’s
order is not clearly erroneous as a matter of law. The panel
concluded that the district court did not err in concluding
that the presumption of regularity that attaches to the
government’s proffered record was rebutted, in identifying
the materials that should have been included in the scope of
the complete administrative record, or in ordering the
government to complete the record with documents
considered by former Department of Homeland Security
Secretary John Kelly in the course of deciding not to
terminate DACA in February 2017.
With respect to the district court’s privilege
determinations, the panel rejected the government’s argument
that Cheney v. U.S. District Court, 542 U.S. 367 (2004), bars
the completion of the administrative record with any White
House materials, and rejected the government’s argument that
it was clear error for the district court to require a privilege
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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IN RE UNITED STATES OF AMERICA 4
log and to evaluate documents allegedly protected by the
deliberative process privilege.
Dissenting, Judge Watford concluded that the district
court’s order constitutes a clear abuse of discretion. Judge
Watford wrote that the district court’s order violates two
well-settled principles governing judicial review under the
Administrative Procedure Act: 1) the court ordinarily
conducts its review based on the records the agency presents
to the reviewing court and, if the record is inadequate to
support the action, the court will usually be required to vacate
and remand; and 2) documents reflecting an agency’s internal
deliberative processes are ordinarily not part of the
administrative record. Judge Watford further concluded that
plaintiffs have failed to make the factual showing necessary
to trigger either of the relevant exceptions to these general
rules. Judge Watford concluded this was a classic case in
which mandamus relief is warranted and would therefore
grant the writ.
COUNSEL
Hashim M. Mooppan (argued), Deputy Assistant Attorney
General; Mark B. Stern, Abby C. Wright, and Thomas
Pulham, Appellate Staff; Brian Stretch, United States
Attorney; Chad A. Readler; Acting Assistant Attorney
General; Civil Division, United States Department of Justice,
Washington, D.C.; for Petitioners.
Michael J. Mongan (argued), Deputy Solicitor General;
James F. Zahradka II, Christine Chuang, Rebekah A. Fretz,
Ronald H. Lee, Kathleen Vermazen Radez, and Shubhara
Shivpuri, Deputy Attorneys General; Michael L. Newman,

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IN RE UNITED STATES OF AMERICA 5
Supervising Deputy Attorney General; Edward C. DuMont,
Solicitor General; Xavier Becerra, Attorney General;
California Department of Justice, San Francisco, California;
for Real Party in Interest State of California.
Jeffrey M. Davidson and Alan Bersin, Covington & Burling
LLP, San Francisco, California; Megan A. Crowley,
Alexander A. Berengaut, Mark H. Lynch, and Lanny A.
Breuer, Covington & Burling LLP, Washington, D.C.;
Mónica Ramirez Almadani, Los Angeles, California;
Margaret Wu, Charles F. Robinson, Michael Troncoso,
Harpreet Chahal, Norman Hamill, Sonya Sanchez, and Julia
M. C. Friedlander, Office of the General Counsel, University
of California, Oakland, California; for Real Parties in Interest
Regents of the University of California and Janet Napolitano.
Susan P. Herman, Deputy Attorney General; Janet T. Mills,
Attorney General; Office of the Attorney General, Augusta,
Maine; for Real Party in Interest State of Maine.
Julianna F. Passe, Assistant Attorney General; Lori Swanson,
Attorney General; Office of the Attorney General, St. Paul,
Minnesota; for Real Party in Interest State of Minnesota.
Steven M. Sullivan, Solicitor General; Brian E. Frosh,
Attorney General; Office of the Attorney General, Baltimore,
Maryland; for Real Party in Interest State of Maryland.
Tamarah P. Prevost, Brain Danitz, Nancy L. Fineman, and
Joseph W. Cotchett, Cotchett Pitre & McCarthy LLP,
Burlingame, California; Nora Frimann and Richard Doyle,
Office of the City Attorney, San Jose, California; for Real
Party in Interest City of San Jose.

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IN RE UNITED STATES OF AMERICA 6
Jesse S. Gabriel, Kirsten Galler, and Theodore J. Boutrous Jr.,
Gibson Dunn & Crutcher LLP, Los Angeles, California;
Ethan D. Dettmer, Gibson Dunn & Crutcher LLP, San
Francisco, California; Judy London and Mark D. Rosenbaum,
Public Counsel, Los Angeles, California; Luis Cortes
Romero, Barrera Legal Group PLLC; Laurence H. Tribe,
Cambridge, Massachusetts; Erwin Chemerinsky, Berkeley,
California; Leah M. Litman, Irvine, California; for Real
Parties in Interest Dulce Garcia, Miriam Gonzalez Avila,
Viridiana Chabolla Mendoza, Norma Ramirez, Jirayut
Latthivongskorn, and Saul Jimenez Suarez.
Marcelo Quiñones, Laura S. Trice, Greta S. Hansen, and
James R. Williams, County Counsel; Office of the County
Counsel, San Jose, California; for Real Party in Interest
County of Santa Clara.
Eric P. Brown, Stacey M. Leyton, and Jonathan Weissglass,
Altshuler Berzon LLP, San Francisco, California, for Real
Parties in Interest County of Santa Clara and SEIU Local 521.
Peter Karanjia and Geoffrey S. Brounell, Davis Wright
Tremaine LLP, Washington, D.C.; Ambika Doran, Davis
Wright Tremaine LLP, Seattle, Washington; for Amicus
Curiae United We Dream.
Michael E. Wall, San Francisco, California, as and for
Amicus Curiae Natural Resources Defense Council.

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IN RE UNITED STATES OF AMERICA 7
ORDER
WARDLAW and GOULD, Circuit Judges:
On September 5, 2017, the Acting Secretary of the
Department of Homeland Security (“DHS”), Elaine Duke,
announced the end of DHS’s Deferred Action for Childhood
Arrivals policy (“DACA”), effective March 5, 2018. Begun
in 2012, DACA provided deferred action for certain
individuals without lawful immigration status who had
entered the United States as children. Several sets of
plaintiffs sued to enjoin the rescission of DACA under the
Administrative Procedure Act (“APA”) and under various
constitutional theories not relevant here.
The merits of those claims are not before us today. The
only issue is a procedural one, raised by the government’s
petition for a writ of mandamus. The government asks us to
permanently stay the district court’s order of October 17,
2017, which required it to complete the administrative
record.1 See Order re Motion to Complete Administrative
Record, Regents of the Univ. of Cal. v. U.S. Dep’t of
Homeland Sec., No. C 17-05211 WHA, 2017 WL 4642324
(October 17, 2017) (“Order”). We have jurisdiction pursuant
to the All Writs Act, 28 U.S.C. § 1651. Because the district
court did not clearly err by ordering the completion of the
administrative record, we hold that the government has not
met the high bar required for mandamus relief.
1 Issues regarding supplementation—as opposed to completion—of
the record and the propriety of discovery on the non-APA claims,
including the propriety of depositions, are not properly before us at this
time, and we do not address them here.

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IN RE UNITED STATES OF AMERICA 8
One note at the outset: We are not unmindful of the
separation-of-powers concerns raised by the government.
However, the narrow question presented here simply does not
implicate those concerns. We consider only whether DHS
failed to comply with its obligation under the APA to provide
a complete administrative record to the court—or, more
precisely, whether the district court clearly erred in so
holding. See Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 420 (1971) (“[R]eview is to be based on
the full administrative record that was before the Secretary at
the time he made his decision.”). This obligation is imposed
to ensure that agency action does not become effectively
unreviewable, for “[i]f the record is not complete, then the
requirement that the agency decision be supported by ‘the
record’ becomes almost meaningless.” Portland Audubon
Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548
(9th Cir. 1993). Assuring that DHS complies with this
requirement—imposed by the APA on all agencies and
embodied in decades of precedent—is undoubtedly a proper
judicial function.
1. “The writ of mandamus is a drastic and extraordinary
remedy reserved only for really extraordinary cases.” In re
Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011) (quoting Ex
parte Fahey, 332 U.S. 258, 259–60 (1947) (internal quotation
marks omitted)). Indeed, “only exceptional circumstances
amounting to a judicial usurpation of power or a clear abuse
of discretion will justify the invocation of this extraordinary
remedy.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380
(2004) (internal quotation marks and citations omitted).
Ultimately, the issuance of the writ is “in large measure . . .
a matter of the court’s discretion.” Johnson v.
Consumerinfo.com, Inc., 745 F.3d 1019, 1023 (9th Cir. 2014)

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IN RE UNITED STATES OF AMERICA 9
(quoting United States v. Sherman, 581 F.2d 1358, 1361 (9th
Cir. 1978)).
Our discretion is guided by the five factors laid out in
Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir. 1977).
However, we need not consider four of those five factors
here, because “the absence of factor three—clear error as a
matter of law—will always defeat a petition for mandamus.”
In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016) (quoting In
re United States, 791 F.3d 945, 955 (9th Cir. 2015)). This
factor—whether “[t]he district court’s order is clearly
erroneous as a matter of law,” Bauman, 557 F.2d at
654–55—“is significantly deferential and is not met unless
the reviewing court is left with a definite and firm conviction
that a mistake has been committed.” In re Bundy, 840 F.3d
at 1041 (quoting In re United States, 791 F.3d at 955).
2. The district court’s order is not clearly erroneous as a
matter of law. APA § 706 provides that arbitrary and
capricious review shall be based upon “the whole record or
those parts of it cited by a party.” 5 U.S.C. § 706. The whole
record “includes everything that was before the agency
pertaining to the merits of its decision.” Portland Audubon,
984 F.2d at 1548; see also, e.g., James Madison Ltd. by Hecht
v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (“The
administrative record includes all materials compiled by the
agency that were before the agency at the time the decision
was made.”) (internal quotation marks and citations omitted).
More specifically, we have explained that the whole
administrative record “consists of all documents and
materials directly or indirectly considered by agency
decision-makers and includes evidence contrary to the
agency’s position.” Thompson v. U.S. Dep’t of Labor,
885 F.2d 551, 555 (9th Cir. 1989) (internal quotation marks

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IN RE UNITED STATES OF AMERICA 10
omitted); see also Bar MK Ranches v. Yuetter, 994 F.2d 735,
739 (10th Cir. 1993) (same). The record is thus not
necessarily limited to “those documents that the agency has
compiled and submitted as ‘the’ administrative record.”
Thompson, 885 F.2d at 555 (internal quotation marks
omitted).
At the initial case management conference before the
district court, the government agreed to produce the complete
administrative record on October 6, 2017. On that date, the
government submitted as “the” administrative record fourteen
documents comprising a mere 256 pages, all of which are
publicly available on the internet. Indeed, all of the
documents in the government’s proffered record had
previously been included in filings in the district court in this
case, and 192 of its 256 pages consist of the Supreme Court,
Fifth Circuit, and district court opinions in the Texas v.
United States litigation.2
Faced with this sparse record, and on the plaintiffs’
motion (opposed by the government), the district court
ordered the government to complete the record to include,
among other things, all DACA-related materials considered
by subordinates or other government personnel who then
provided written or verbal input directly to Acting Secretary
Duke. The district court excluded from the record documents
that it determined in camera are protected by privilege.
Order at *8.
2 That lawsuit challenged a related but distinct deferred action policy,
Deferred Action for Parents of Americans and Lawful Permanent
Residents, or DAPA. See United States v. Texas, 136 S. Ct. 2271 (2016);
Texas v. United States, 809 F.3d 134 (5th Cir. 2015); Texas v. United
States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

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IN RE UNITED STATES OF AMERICA 11
3. The administrative record submitted by the
government is entitled to a presumption of completeness
which may be rebutted by clear evidence to the contrary. Bar
MK Ranches, 994 F.2d at 740; see also Thompson, 885 F.2d
at 555 (noting that the administrative record “is not
necessarily those documents that the agency has compiled
and submitted as ‘the’ administrative record.”). The district
court correctly stated this legal framework and concluded that
the presumption of completeness had been rebutted here.
Order at *5. This conclusion was not clear legal error: Put
bluntly, the notion that the head of a United States agency
would decide to terminate a program giving legal protections
to roughly 800,000 people3 based solely on 256 pages of
publicly available documents is not credible, as the district
court concluded.4
The district court identified several specific categories of
materials that were likely considered by the Acting Secretary
or those advising her, but which were not included in the
government’s proffered record. For example, the record
contains no materials from the Department of Justice or the
White House—other than a one-page letter from Attorney
General Jefferson B. Sessions—despite evidence that both
bodies were involved in the decision to end DACA, including
the President’s own press release taking credit for the
3 See U.S. Citizenship and Immigration Services, Number of Form I-
821D, Consideration of Deferred Action for Childhood Arrivals, by Fiscal
Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012–2017
(June 30) (Sept. 20, 2017), goo.gl/UcGJww.
4 The dissent agrees that “a policy shift of that magnitude presumably
would not have been made without extensive study and analysis
beforehand.” Dissent at 20.

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IN RE UNITED STATES OF AMERICA 12
decision.5 Nor does the proffered record include any
documents from Acting Secretary Duke’s subordinates; we
agree with the district court that “it strains credulity” to
suggest that the Acting Secretary decided to terminate DACA
“without consulting one advisor or subordinate within DHS.”
Order at *4. And the proffered record contains no materials
addressing the change of position between February
2017—when then-Secretary John Kelly affirmatively decided
not to end DACA—and Acting Secretary Duke’s September
2017 decision to do the exact opposite, despite the principle
that reasoned agency decision-making “ordinarily demand[s]
that [the agency] display awareness that it is changing
position” and “show that there are good reasons for the new
policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009).
At oral argument, the government took the position that
because the Acting Secretary’s stated justification for her
decision was litigation risk, materials unrelated to litigation
risk need not be included in the administrative record.
Simply put, this is not what the law dictates. The
administrative record consists of all materials “considered by
agency decision-makers,” Thompson, 885 F.2d at 555
(emphasis added), not just those which support or form the
basis for the agency’s ultimate decision. See also, e.g., Amfac
Resorts, LLC v. U.S. Dep’t of Interior, 143 F. Supp. 2d 7, 12
(D.D.C. 2001) (“[A] complete administrative record should
include all materials that ‘might have influenced the agency’s
5 See Press Release, White House Office of the Press Secretary,
President Donald J. Trump Restores Responsibility and the Rule of Law
to Immigration (Sept. 5, 2017), https://www.whitehouse.gov/the-press-
office/2017/09/05/ president-donald-j-trump-restores-responsibility-and-
rule-law.

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IN RE UNITED STATES OF AMERICA 13
decision,’ and not merely those on which the agency relied in
its final decision.”) (quoting Bethlehem Steel v. EPA,
638 F.2d 994, 1000 (7th Cir. 1980)). And even if the record
were properly limited to materials relating to litigation risk,
the district court did not clearly err in concluding that it is
implausible that the Acting Secretary would make a
litigation-risk decision “without having generated any
materials analyzing the lawsuit or other factors militating in
favor of and against the switch in policy.” Order at *4.
It was therefore not clear error for the district court to
conclude that the presumption of regularity that attaches to
the government’s proffered record is rebutted, and that
ordering completion of the record was necessary and
appropriate.
4. Nor did the district court clearly err in identifying the
materials that should have been included within the scope of
the complete administrative record. The government
challenges the decision to include materials considered by
subordinates who then briefed the Acting Secretary, but this
decision was not clear legal error. We have held that the
record properly includes “all documents and materials
directly or indirectly considered by agency decision-makers,”
Thompson, 885 F.2d at 555, but have not yet clarified the
exact scope of “indirectly considered.” District courts in this
and other circuits, however, have interpreted that phrase to
include materials relied on by subordinates who directly
advised the ultimate decision-maker. See, e.g., Nat. Res. Def.
Council v. Gutierrez, No. C 01-0421 JL, 2008 WL 11358008,
at *6 (N.D. Cal. Jan. 14, 2008) (“To the extent [the
government argues] that only those documents that reached
[the agency’s] most senior administrators were in fact
‘considered,’ courts have rejected that view as contrary to the

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IN RE UNITED STATES OF AMERICA 14
Ninth and other Circuits’ pronouncements . . . .”);
GeorgiaCarry.org, Inc. v. U.S. Army Corps of Eng’rs, 212 F.
Supp. 3d 1348, 1352 (N.D. Ga. 2016) (“Documents and
materials indirectly considered by agency decision-makers
are those that may not have literally passed before the eyes of
the decision-makers, but were so heavily relied on in the
recommendation that the decisionmaker constructively
considered them.”); Amfac Resorts, 143 F. Supp. 2d at 12
(“[I]f the agency decisionmaker based his decision on the
work and recommendations of subordinates, those materials
should be included as well.”).6
Moreover, as noted in the district court’s October 17
order, a Department of Justice guidance document directs
agencies compiling the administrative record to “[i]nclude all
documents and materials prepared, reviewed, or received by
agency personnel and used by or available to the decision-
maker, even though the final decision-maker did not actually
review or know about the documents and materials.” U.S.
Dep’t of Justice, Env’t and Nat. Res. Div., Guidance to
Federal Agencies on Compiling the Administrative Record 3
(Jan. 1999) (emphasis added). It further provides that the
administrative record should include “communications the
agency received from other agencies . . . documents and
materials that support or oppose the challenged agency
decision . . . minutes of meetings or transcripts thereof . . .
[and] memorializations of telephone conversations and
6 We also note that the government has conceded in other cases that
documents relied on by subordinates are properly part of the
administrative record. See Oceana, Inc. v. Pritzker, No. 16-cv-06784-
LHK (SVK), 2017 WL 2670733, at *4 (N.D. Cal. June 21, 2017)
(“Defendants acknowledge . . . that a decision-maker can be deemed to
have ‘constructively considered’ materials that, for example, were relied
on by subordinates . . . .”).

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IN RE UNITED STATES OF AMERICA 15
meetings, such as a memorandum or handwritten notes.” Id.
at 3–4. The district court’s October 17 order complies with
this Department of Justice guidance; the government’s
proffered record does not.
We recognize that such guidance is not binding; we
nevertheless find it persuasive as a statement by the
Department of Justice as to what should be included in a
complete administrative record. We also note that the
guidance document DHS failed to comply with here was
inexplicably rescinded the very same day that the government
filed this petition for a writ of mandamus.
Given that the district court’s interpretation of Thompson
is consistent with the rulings of other district courts, comports
with the Department of Justice’s guidance on administrative
records, and is not foreclosed by Ninth Circuit authority, we
cannot say that the district court’s interpretation was clearly
erroneous as a matter of law. See In re Swift Transp. Co.,
830 F.3d 913, 916–17 (9th Cir. 2016) (“It is well established
that ‘[t]he absence of controlling precedent weighs strongly
against a finding of clear error [for mandamus purposes].’”)
(quoting In re Van Dusen, 654 F.3d at 845).7
7 There is tension within our decisions about whether controlling
Ninth Circuit precedent is a necessary precondition to finding clear error
as a matter of law. Compare In re Swift Transp. Co., 830 F.3d at 917 (“If
‘no prior Ninth Circuit authority prohibited the course taken by the district
court, its ruling is not clearly erroneous.’”) (quoting In re Morgan,
506 F.3d 705, 713 (9th Cir. 2007)), with Perry v. Schwarzenegger,
591 F.3d 1147, 1159 (9th Cir. 2010) (“[T]he necessary clear error factor
does not require that the issue be one as to which there is established
precedent.”) (emphasis added). At a minimum, however, the lack of such
authority “weighs strongly” against finding clear error. In re Swift Transp.
Co., 830 F.3d at 916.

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IN RE UNITED STATES OF AMERICA 16
5. The district court’s order that the government
complete the record with documents considered by former
DHS Secretary John Kelly in the course of deciding not to
terminate DACA in February 2017 also withstands
mandamus scrutiny. This is not because of some freestanding
requirement that all the materials underlying a previous
decision on a similar subject are always part of the
administrative record; rather, it simply recognizes that both
decisions were part of an ongoing decision-making process
regarding deferred action: In February 2017, Secretary Kelly
ended other prioritization programs, but left DACA and
DAPA in place; in June 2017, Secretary Kelly ended DAPA
but left DACA intact; finally, in September 2017, Acting
Secretary Duke ended DACA. The materials considered by
Secretary Kelly in the course of deciding against ending
DACA in February 2017 did not cease to be “before the
agency” for purposes of the administrative record during that
seven-month evolution in policy. Thompson, 885 F.2d at
555–56. The district court’s decision to order their inclusion
in the record was therefore not clear legal error.
6. Finally, the government makes two categorical
arguments with respect to privilege.8 First, it contends that
Cheney v. U.S. District Court, 542 U.S. 367 (2004), bars the
completion of the administrative record with any White
House materials, because requiring White House officials to
search for and assert privilege as to individual documents
8 The government also appears to challenge the district court’s
individual privilege determinations, but it has provided little in the way of
argument regarding the specific documents ordered disclosed by the
district court. We are unable to conclude that the government has met its
burden of showing that the district court’s privilege analysis was clearly
erroneous as a matter of law.

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IN RE UNITED STATES OF AMERICA 17
would be an unwarranted intrusion into executive decision-
making. Cheney, of course, did not involve an administrative
agency’s obligation under the APA to provide the court with
the record underlying its decision-making. It instead
involved civil discovery requests that the Supreme Court
described variously as “overbroad” and as “ask[ing] for
everything under the sky.” Id. at 383, 387. We do not read
Cheney as imposing a categorical bar against requiring DHS
to either include White House documents in a properly-
defined administrative record or assert privilege individually
as to those documents.
Moreover, the reasoning of Cheney appears to be based
substantially on the fact that the Vice President himself was
the subject of discovery. See id. at 381 (“Here, however, the
Vice President and his comembers on the NEPDG are the
subjects of the discovery orders.”), 382 (“These separation-
of-powers considerations should inform a court of appeals’
evaluation of a mandamus petition involving the President or
the Vice President.”). Here, although the government is of
course correct that the President is named as a defendant in
some of the underlying lawsuits, there is no indication that
either his documents or those of the Vice President would fall
within the completed administrative record as ordered by the
district court. Cheney therefore does not render the district
court’s order clearly erroneous.
Second, the government argues that it was clear legal
error to require a privilege log and to evaluate documents
allegedly protected by the deliberative process privilege on an
individual basis, since “deliberative” materials are not
properly within the administrative record at all. As noted
above, the district court reviewed in camera each of the
documents as to which the government asserted the

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IN RE UNITED STATES OF AMERICA 18
deliberative process privilege, and ordered the inclusion of
only those documents that met the balancing standard laid out
in FTC v. Warner Commc’ns, Inc., 742 F.2d 1156, 1161 (9th
Cir. 1984). The court stated that it would similarly review in
camera any additional documents as to which the government
claims privilege in the future. Order at *8.
As the government acknowledges, we have not previously
addressed whether assertedly deliberative documents must be
logged and examined or whether the government may
exclude them from the administrative record altogether.
However, many district courts within this circuit have
required a privilege log and in camera analysis of assertedly
deliberative materials in APA cases. See, e.g., Ctr. for Food
Safety v. Vilsack, No. 15-cv-01590, 2017 WL 1709318, at *5
(N.D. Cal. May 3, 2017); Inst. for Fisheries Res. v. Burwell,
No. 16-cv-01574 VC, 2017 WL 89003, at *1 (N.D. Cal. Jan.
10, 2017); California ex rel. Lockyer v. U.S. Dep’t of Agric.,
No. C05-03508 EDL, 2006 WL 708914, at *4 (N.D. Cal.
March 16, 2008). Again, “the absence of controlling
precedent” and the practice of the district courts “weigh[]
strongly against a finding of clear error” for purposes of
mandamus. In re Swift Transp. Co., 830 F.3d at 916–17
(citation omitted).
We further note that the “deliberative” materials at issue
in the main case cited by the government, San Luis Obispo
Mothers for Peace v. U.S. Nuclear Regulatory Comm’n,
789 F.2d 26 (D.C. Cir. 1986) (en banc), were transcripts of
literal deliberations among the members of a multi-member
agency board. See id. at 44. Where—as in Mothers for
Peace—an agency is headed by a multi-member board, the
deliberations among those members are analogous to the
internal mental processes of the sole head of an agency, and

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IN RE UNITED STATES OF AMERICA 19
thus are generally not within the scope of the administrative
record. Cf. Portland Audubon, 984 F.2d at 1549
(distinguishing Mothers for Peace as involving “the internal
deliberative processes of the agency [and] the mental
processes of individual agency members”) (emphases added).
No such deliberations among a multi-member agency are at
issue here. The district court’s decision to require a privilege
log and evaluate claims of privilege on an individual basis
before including documents in the record was not clearly
erroneous as a matter of law.
* * *
The district court’s October 17, 2017 order represents a
reasonable approach to managing the conduct and exigencies
of this important litigation—exigencies which were dictated
by the government’s March 5, 2018 termination date for
DACA. In order for the government to prevail in its request
for the extraordinary remedy of mandamus, we must be “left
with a definite and firm conviction that a mistake has been
committed.” In re Bundy, 840 F.3d at 1041 (quoting In re
United States, 791 F.3d at 955). We are left with no such
conviction here, and mandamus relief is therefore not
appropriate.
Accordingly, the stay of proceedings entered on October
24, 2017 is lifted.
PETITION DENIED.

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IN RE UNITED STATES OF AMERICA 20
WATFORD, Circuit Judge, dissenting:
I understand why the district court ordered the
Department of Homeland Security (DHS) to provide a more
fulsome administrative record. The agency’s decision to
rescind DACA will profoundly disrupt the lives of hundreds
of thousands of people, and a policy shift of that magnitude
presumably would not have been made without extensive
study and analysis beforehand. But the desire for greater
insight into how DHS arrived at its decision is not a
legitimate basis for ordering the agency to expand the
administrative record, unless the plaintiffs make a threshold
factual showing justifying such action. They have not done
so here. As a result, I think the district court’s order
constitutes “a clear abuse of discretion,” and the burden
imposed by the order is exceptional enough to warrant the
extraordinary remedy of mandamus. Cheney v. United States
District Court for the District of Columbia, 542 U.S. 367, 380
(2004).
The district court’s order violates two well-settled
principles governing judicial review of agency action under
the Administrative Procedure Act. The first is that a court
ordinarily conducts its review “based on the record the
agency presents to the reviewing court.” Florida Power &
Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985); see also
Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam). If the
record compiled by the agency is inadequate to support the
challenged action, the reviewing court will usually be
required to vacate the agency’s action and remand for
additional investigation or explanation. Florida Power,
470 U.S. at 744. So in most cases the agency bears the risk
associated with filing an incomplete record, not the
challengers.

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IN RE UNITED STATES OF AMERICA 21
The second principle is that documents reflecting an
agency’s internal deliberative processes are ordinarily not
part of the administrative record. See In re Subpoena Duces
Tecum Served on the Office of the Comptroller of the
Currency, 156 F.3d 1279, 1279–80 (D.C. Cir. 1998); Kansas
State Network, Inc. v. FCC, 720 F.2d 185, 191 (D.C. Cir.
1983). An agency generally has no obligation to include
documents that were prepared to assist the decision-maker in
arriving at her decision, such as memos or emails containing
opinions, recommendations, or advice. These pre-decisional
materials are not deemed part of the administrative record
because they are irrelevant to the reviewing court’s task. The
court’s function is to assess the lawfulness of the agency’s
action based on the reasons offered by the agency, Motor
Vehicle Manufacturers Association of the United States, Inc.
v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29,
50 (1983), not to “probe the mental processes” of agency
decision-makers in reaching their conclusions. Morgan v.
United States, 304 U.S. 1, 18 (1938). Requiring routine
disclosure of deliberative process materials would also chill
the frank discussions and debates that are necessary to craft
well-considered policy. See Assembly of the State of
California v. Department of Commerce, 968 F.2d 916, 920
(9th Cir. 1992); San Luis Obispo Mothers for Peace v.
Nuclear Regulatory Commission, 789 F.2d 26, 45 (D.C. Cir.
1986) (en banc) (plurality opinion).
There are exceptions to these general rules. First,
expansion of the record may be required when the agency
fails to make formal findings and thus leaves the reviewing
court unable to discern the agency’s reasons for taking the
action that it did. See Public Power Council v. Johnson,
674 F.2d 791, 793–94 (9th Cir. 1982). (This exception
doesn’t apply here because the memo issued by the Acting

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IN RE UNITED STATES OF AMERICA 22
Secretary explicitly states her asserted reason for rescinding
DACA: concern that the program would be invalidated in
threatened litigation.) Second, the record may be expanded
if there is evidence that the agency cherry-picked the
materials it included by omitting factual information
undermining the conclusions it reached. See Portland
Audubon Society v. Endangered Species Committee, 984 F.2d
1534, 1548 (9th Cir. 1993). And third, documents reflecting
an agency’s internal deliberations may on occasion be made
part of the record, but only if the challengers make “a strong
showing of bad faith or improper behavior” on the part of
agency decision-makers. Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977); In re
Subpoena Duces Tecum, 156 F.3d at 1279–80.
The plaintiffs have not made the showing necessary to
trigger either of the latter two exceptions. They have not
shown any likelihood that factual information considered by
the Acting Secretary and relevant to her decision has been
omitted from the record. Indeed, it would be implausible to
think that any such material exists, given the nature of the
reason asserted by the Acting Secretary for rescinding
DACA. Concern over the program’s vulnerability to legal
challenge would rest not on factual information but on the
legal analysis of lawyers. Documents analyzing DACA’s
potential legal infirmities, prepared to assist the Acting
Secretary in assessing the gravity of the litigation risk
involved, fall squarely within the category of deliberative
process materials mentioned above. They are presumptively
outside the scope of what must be included in the
administrative record (and may be privileged in any event).

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IN RE UNITED STATES OF AMERICA 23
Nor have the plaintiffs attempted at this stage of the case
to show bad faith or improper behavior on the part of the
Acting Secretary. To be sure, they assert in their brief that
they suspect her stated reason for rescinding DACA is
pretextual. But bare assertions of that sort fall far short of the
showing needed to overcome the presumption that agency
decision-makers have acted for the reasons they’ve given.
Because the plaintiffs have failed to establish that any of
these exceptions apply, I don’t think the district court’s order
can stand. The court directed DHS to include in the
administrative record all DACA-related “emails, letters,
memoranda, notes, media items, opinions, and other
materials” considered by the Acting Secretary, and all such
materials considered by any other government official—
including officials from the Department of Justice and the
White House—who provided the Acting Secretary with
written or verbal input on the decision to rescind DACA. The
court further expanded the record to include “all comments
and questions propounded by Acting Secretary Duke to
advisors or subordinates or others regarding the actual or
potential rescission of DACA and their responses.”
In my view, the district court exceeded the scope of its
lawful authority to expand the administrative record. The
order sweeps far beyond materials related to the sole reason
given for rescinding DACA—its supposed unlawfulness and
vulnerability to legal challenge. The order requires the
inclusion of all documents mentioning DACA-related issues
of any sort, and is overbroad for that reason alone. But even
if the order had been limited to documents analyzing the risk
that DACA might be invalidated, those materials are
deliberative in character and thus could not be made part of
the administrative record absent a showing of bad faith or

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IN RE UNITED STATES OF AMERICA 24
improper behavior. And to the extent the order will compel
the production of communications between the Acting
Secretary and high-level officials in the White House—
including, potentially, the President himself—the order raises
the same sensitive separation-of-powers concerns that made
mandamus relief appropriate in Cheney. See 542 U.S. at
389–90.
These departures from settled principles are enough to
establish that the district court’s order is “clearly erroneous as
a matter of law,” which is the most important of the factors
we consider when deciding whether to grant mandamus
relief. In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016). The
other factors weigh in favor of granting relief as well. The
order isn’t immediately appealable, and if relief is denied the
harm inflicted will be immediate and irreparable. As the
declarations submitted by the government attest, the search
for documents responsive to the court’s order will be
burdensome and intrusive, given the large number of
government officials who may have provided written or
verbal input to the Acting Secretary. And the damage caused
by public disclosure of otherwise privileged materials can’t
be undone following an appeal from the final judgment.
This strikes me as a classic case in which mandamus
relief is warranted, and I would therefore grant the writ.

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