No. 18-1469
IN THE

Supreme Court of the United States
————
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
v.

Petitioners,

CASA DE MARYLAND, et al.,
Respondents.
————
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
————
OPPOSITION TO PETITIONERS’ MOTION TO EXPEDITE
————
John A. Freedman
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Avenue, N.W.
Washington, DC 20001
(202) 942-5000
john.freedman@arnoldporter.com
Emily Newhouse Dillingham
ARNOLD & PORTER KAYE SCHOLER LLP
70 West Madison Street Suite 4200
Chicago, IL 60602-4231
(312) 583-2300
emily.dillingham@arnoldporter.com

Elizabeth J. Bower
Kevin B. Clark
Priya R. Aiyar
WILLKIE FARR & GALLAGHER LLP
1875 K Street, N.W.
Washington, DC 20006
(202) 303-1000
ebower@willkie.com

Counsel for Plaintiffs-Respondents
(Complete counsel listing appears on signature pages.)

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For the reasons given below, Respondents respectfully oppose Petitioners’
motion for expedited consideration of their petition for certiorari. Petitioners have
identified no circumstance whatsoever that would justify granting their request for
an extraordinary departure from this Court’s normal procedures; rather, Petitioners’
motion is, in effect, a plea to this Court to rule on petitions in parallel cases. Indeed,
Petitioners themselves concede in their motion that there is no exigency to ruling on
this petition. This Court should deny Petitioners’ request for expedition.

STATEMENT
1.

This case concerns Petitioners’ announcement on September 5, 2017

that they were rescinding the Deferred Action for Childhood Arrivals (DACA)
program. DACA was a program announced in 2012 that has provided approximately
800,000 individuals who, through no fault of their own, were brought to this country
as children with both protection from deportation and the opportunity to seek work
authorization in the only home they have ever known.
2.

Respondents are 16 individuals who currently have or are eligible to

apply for DACA status and nine immigrant rights organizations from across the
United States, many of which count DACA beneficiaries among their members and
provide DACA application assistance to eligible individuals.

In October 2017,

Respondents filed suit in federal district court in Maryland, alleging that the
rescission of DACA violated the Administrative Procedure Act (APA) and various
constitutional provisions.

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3.

The District Court concluded that the dispute was justiciable and

granted partial summary judgment to Respondents and entered a permanent
injunction requiring Petitioners to comply with restrictions promulgated in 2012 that
safeguard DACA applicant data from being shared with immigration enforcement
authorities. The District Court granted summary judgment to Petitioners on the
remaining claims, concluding that the rescission of DACA was not arbitrary or
capricious and dismissing the constitutional claims without permitting any discovery
or addressing Respondents’ declarations under Fed. R. Civ. P. 56(d) requesting fact
discovery.
4.

In November 2018, Petitioners petitioned for certiorari before judgment

of three other District Court decisions that reached contrary results -- that the
rescission of DACA was or likely would be proven to be arbitrary and capricious. See
Department of Homeland Security v. Regents of the University of California, No. 18587, Trump v. NAACP, No. 18-588, and Nielsen v. Vidal, No. 18-589.
5.

While seeking certiorari before judgment in the other DACA cases,

Petitioners decided not to petition for certiorari in this case and allowed the case to
proceed before the Fourth Circuit.
6.

On cross-appeals, on May 17, the Fourth Circuit: (i) reversed and

vacated the District Court’s injunction regarding the information sharing provisions;
(ii) reversed the District Court’s conclusion that the rescission of DACA was legal,
concluding that the “decision to rescind DACA was arbitrary and capricious and must

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be set aside”; and (iii) remanded the decision for further proceedings, i.e., entry of
final judgment for Respondents on the APA claim. The Fourth Circuit also affirmed
the District Court’s ruling that the dispute was justiciable, and it vacated the District
Court’s judgment for Petitioners on Respondents’ constitutional claims, concluding it
was “unnecessary to address Plaintiffs’ constitutional challenge” or whether the
District Court misapplied Fed. R. Civ. P. 56.
7.

On May 24, 2019, Petitioners petitioned for certiorari and sought

expedited consideration of that petition.

ARGUMENT
Petitioners identify no compelling need for the Court to expedite this case, or
to order a brief in opposition in 10 calendar days.
1.

This petition is not urgent. The petition presents identical questions to

the Petitions for Certiorari before Judgment filed in Department of Homeland
Security v. Regents of the University of California, 18-587, Trump v. NAACP, 18-588,
and Nielsen v. Vidal, 18-589, as well as the supplemental petition filed in DHS v.
Regents. Petitioners filed each of these petitions in November 2018. Petitioners have
not sought a stay of any of the injunctions entered by the district or appellate courts
that have ruled in Regents, NAACP, or Vidal.
2.

Petitioners’ argument for expedition is premised on their assumption

that this Court will grant certiorari in Regents, NAACP, and Vidal before the end of
term, and that they will need to coordinate briefing on those matters.

Indeed,

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Petitioners’ motion is little more than a vehicle to convey to the Court that Petitioners
consider the timing of such a grant to be “critical.” Mot. 9. But Petitioners do not
explain why the Court need grant certiorari before summer recess as to any of these
petitions.
3.

Nor do Petitioners explain why the Court would need full briefing on

this petition before it decides whether to grant certiorari as to Regents, NAACP, and
Vidal. Indeed, Petitioners concede that expedited consideration of this petition is not
necessary. See Mot. 9-10 (acknowledging that “the Court could allow briefing on this
petition to proceed on the ordinary schedule, with a view to holding this petition while
the Court resolves any of the other pending cases….”). Petitioners agree that if the
Court grants certiorari in Regents, NAACP, or Vidal, it can later decide whether it
should do the same for this case.
4.

Petitioners have failed to demonstrate that a concrete harm will occur

pending this Court’s standard consideration of the petition. The status quo that the
Government itself created continues, as it has since 2012, with no demonstrable
injury to anyone. The only “harm” asserted by Petitioners is the alleged “violation of
federal law being committed” by the individuals brought to this country as children
who currently have DACA status. Mot. 8. But no court to consider the issue has held
that DACA is unlawful. Because there is no violation of federal law, there is and can
be no harm to Petitioners.

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5.

Relatedly, there is no exigency because there is no conflict among lower

courts on these issues. All four decisions (the Fourth and Ninth Circuits and the
District Court decisions from New York and the District of Columbia) have reached
the same conclusion -- that Petitioners’ decision to rescind DACA is reviewable and
was, or likely would be proven to be, arbitrary and capricious in violation of the
APA. Expedited briefing, therefore, is not necessary to resolve a fundamental conflict
of the lower courts.
6.

Further, there is at least one benefit to hearing this petition on a normal

schedule: the Second and D.C. Circuits are actively considering these issues and
likely will issue opinions shortly. Oral argument in the Second Circuit was on
January 26, 2019, and in the D.C. Circuit was on February 22, 2019. There is a “value
to letting important legal issues ‘percolate’ throughout the judicial system,” Johnson
v. U.S. R.R. Ret. Bd., 969 F.2d 1082, 1093 (D.C Cir. 1992), and with a short deferral,
the amount of percolation could double. As this Court has recognized, there is a value
in litigation involving the federal government in “permitting several courts of appeals
to explore a difficult question before [the Supreme Court] grants certiorari” and there
will be more “thorough development of legal doctrine by allowing litigation in
multiple forums.” United States v. Mendoza, 464 U.S. 154, 160, 163 (1984). That is
why the Court has granted certiorari before judgment so rarely.
7.

Finally, as Petitioners have failed to meet their burden of showing

exigencies requiring expedition, granting their requested relief would be unfair to

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Respondents. Respondents are actively considering whether to file a conditional
cross-petition regarding certain aspects of the Fourth Circuit decision, most notably
Section IV of the decision vacating the injunction preventing Petitioners from sharing
DACA applicant information with immigration enforcement authorities. Petitioners’
motion provides no justification for denying Respondents the time this Court’s Rules
allow to file a cross-petition.
8.

In addition to addressing these issues, Respondents also plan to explain

in their brief in opposition to the petition why, in light of the Fourth Circuit’s
conclusion that it need not address Respondents’ constitutional challenges or the
arguments regarding Respondents’ right to seek discovery pursuant to Fed. R. Civ.
P. 56, granting certiorari would not permit this Court to address all relevant claims
at issue in this matter, as asserted by Petitioners. Given that consideration of the
petition would not address all claims at issue, there is no need to expedite review.
9.

The Clerk has requested this brief address whether the deadline for

responses to the petition could, as a practical manner, be tightened. There is simply
no exigency justifying Petitioners’ insistence that Respondents respond to the petition
within just 10 days. To the extent the Court is inclined to consider the petition before
the end of term thereby necessitating a shortened response time, Petitioners request
a response time no earlier than June 11, 2019.

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Respectfully submitted,
/s/ John A. Freedman_____________________
John A. Freedman
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Avenue, N.W.
Washington, DC 20001
(202) 942-5000
john.freedman@arnoldporter.com
Emily Newhouse Dillingham
ARNOLD & PORTER KAYE SCHOLER LLP
70 West Madison Street Suite 4200
Chicago, IL 60602-4231
(312) 583-2300
emily.dillingham@arnoldporter.com
Elizabeth J. Bower
Kevin B. Clark
Priya R. Aiyar
WILLKIE FARR & GALLAGHER LLP
1875 K Street, N.W.
Washington, DC 20006
(202) 303-1000
ebower@willkie.com
Dennis A. Corkery
WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS AND URBAN AFFAIRS
11 Dupont Circle, N.W.
Suite 400
Washington, DC 20036
(202) 319-1000
dennis_corkery@washlaw.org
Ajmel A. Quereshi
HOWARD UNIVERSITY SCHOOL OF LAW
2900 Van Ness Street, N.W.
Washington, DC 20008
(202) 216-5574
ajmel.quereshi@howard.edu
Counsel for Plaintiffs-Respondents
MAY 29, 2019