Garcia et al v. United States of America et al

Filing 29

ORDER RE MOTION TO STAY PROCEEDINGS by Judge William Alsup denying (81) Motion to Stay in case 3:17-cv-05211-WHA.Associated Cases: 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(whalc1, COURT STAFF) (Filed on 10/19/2017)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 11 For the Northern District of California United States District Court 10 12 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the University of California, Plaintiffs, 13 14 No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA v. 17 UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE DUKE, in her official capacity as Acting Secretary of the Department of Homeland Security, 18 Defendants. 15 16 ORDER RE MOTION TO STAY PROCEEDINGS / 19 20 An October 17 order required federal defendants to complete the administrative record, 21 including by providing all materials directly or indirectly considered by the Acting Secretary of 22 the Department of Homeland Security in connection with her decision to rescind the Deferred 23 Action for Childhood Arrivals (“DACA”) policy, as well as all materials considered by those 24 who advised the Acting Secretary (Dkt. No 79). 25 On October 18, federal defendants filed this motion seeking a stay of certain 26 proceedings — including all discovery and further proceedings concerning composition of the 27 administrative record — pending resolution of a writ of mandamus appealing the October 17 28 order, which writ they will file with our court of appeals no later than October 20 (Dkt. No. 81). All parties stipulated to an expedited briefing schedule, pursuant to which plaintiffs filed a 1 response at 5:00 p.m. today. With the benefit of the parties’ briefing, this order now DENIES 2 federal defendants’ motion for a stay. 3 Whether to grant a stay is, in the first instance, in the discretion of the district court. 4 Nken v. Holder, 556 U.S. 418, 433 (2009). That discretion is guided by a four-factor test, under 5 which courts consider: “(1) whether the stay applicant has made a strong showing that he is 6 likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a 7 stay; (3) whether issuance of the stay will substantially injure the other parties interested in the 8 proceeding; and (4) where the public interest lies.” Ibid. (citations and quotations omitted). 9 These factors do not favor our federal defendants. The contentions federal defendants rely upon in arguing that they are likely to succeed on the merits are largely duplicative of their 11 For the Northern District of California United States District Court 10 arguments opposing completion of the administrative record, which were rejected by the 12 October 17 order. For the same reasons set forth therein, these arguments remain unavailing. 13 Federal defendants additional arguments are likewise unpersuasive. They offer a strained and 14 inaccurate interpretation of 8 U.S.C. 1252(g) in support of their position that the decision to 15 rescind DACA is unreviewable. Section 1252(g), however, only bars judicial review of 16 decisions “by the Attorney General to [1] commence proceedings, [2] adjudicate cases, or [3] 17 execute removal orders,” none of which are at issue here. This provision has been “narrowly 18 construed” and is plainly inapplicable to this action. See Kwai Fun Wong v. United States, 373 19 F.3d 952, 964 (9th Cir. 2004). Nor does federal defendants’ argument regarding the Court’s 20 position on whether Acting Secretary Elaine Duke is subject to deposition — a topic not yet 21 formally raised in this action or properly the subject of defendants’ mandamus petition — show 22 that they are likely to succeed. 23 Most importantly, a stay will likely result in substantial and irreparable harm to our 24 plaintiffs, and to those parties most interested in these proceedings, people who are currently 25 enrolled in DACA. All face a March 5, 2018 deadline, on which date the Department of 26 Homeland Security has determined to end DACA. On that day, people currently living and 27 working in the United States will begin to lose the protections afforded by DACA. The Court 28 intends to reach a decision before the March 5 deadline, on a substantial and complete record, 2 1 which can be reviewed by our court of appeals, and has set a schedule that will accomplish this. 2 A stay risks allowing this deadline to pass without a decision on the merits, and therefore poses 3 a substantial threat to our plaintiffs and to DACA enrollees. 4 Moreover, any alleged “irreparable harm” imposed upon the government related to their 5 discovery burden pales in comparison to that which will be faced by DACA enrollees. Nor will 6 privileged government communications be publicly disclosed, as the undersigned judge has 7 reviewed, and as necessary will continue to review such documents, submitted in camera, and 8 withhold from public view those that require withholding. 9 Finally, the public’s interest is best served by a thorough, transparent, and expeditious resolution of this litigation. Federal defendants’ argument that this action and one other lawsuit 11 For the Northern District of California United States District Court 10 pending in New York have diverted resources from the Department of Homeland Security’s 12 mission of protecting the United States is not well taken. The federal government is certainly 13 equipped to participate in this litigation and continue to perform its core functions. 14 Though federal defendants analyze their motion under the four-factor test set forth 15 above, they also suggest that a different test applies here since they seek to stay a proceeding as 16 opposed to only staying an order or judgment. That test asks “whether (1) resolution by the 17 Ninth Circuit of the issue addressed in [the appealed order] could materially affect this case and 18 advance the ultimate termination of litigation and (2) whether a stay will promote [ ] economy 19 of time and effort for the Court and the parties.” American Hotel & Lodging Ass'n v. City of 20 Los Angeles, No. CV 14-09603-AB (SSX), 2015 WL 10791930, at *3 (C.D. Cal. Nov. 5, 2015) 21 (Judge Andre Birotte Jr.) (internal citations and quotations omitted). 22 This, however, is mere slight of hand. Federal defendants are not seeking to stay “all 23 proceedings in the DACA cases” as they state in their notice of motion (Dkt. No. 81 at 1), but 24 rather are seeking to “stay discovery and further proceedings concerning the composition of the 25 administrative record pending a ruling on [their] upcoming motion to dismiss” as they clarify in 26 their memorandum of points and authorities (id. at 1–2). In other words, they are moving to 27 stay the October 17 order — a motion to which the four-part Nken test applies — while 28 continuing to litigate only their affirmative case. This is improper. 3 1 Even under the test set forth in American Hotel & Lodging, however, defendants motion 2 still fails. First, a stay will not promote economy of time and effort. In fact, it will have the 3 opposite effect. It will prolong proceedings and in all likelihood duplicate efforts by creating a 4 delay, which requires litigation first on the issue of provisional relief followed by a second 5 round of litigation on the merits. This will result in a waste of time and resources. 6 Second, staying discovery and proceedings concerning composition of the 7 administrative record will not advance the litigation. An appellate decision on the composition 8 of the administrative record can be made now or later, as our court of appeals prefers, but we 9 ought to continue making progress on the merits while that court considers the issue. For the foregoing reasons, federal defendants’ motion to stay proceedings is DENIED. 11 For the Northern District of California United States District Court 10 This action shall continue on the schedule set forth in the September 22 Scheduling Order (Dkt. 12 No. 49). Even in the unfortunate event that the administrative record is not settled (due to 13 appellate proceedings), our briefing schedule will nevertheless allow an orderly assessment of 14 whether or not provisional relief is warranted. 15 16 17 IT IS SO ORDERED. 18 19 20 Dated: October 19, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 4

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