FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: UNITED STATES OF AMERICA; No. 17-72917
DONALD J. TRUMP; U.S.
DEPARTMENT OF HOMELAND D.C. Nos. 3:17-cv-05211-WHA
SECURITY; ELAINE C. DUKE, 3:17-cv-05235-WHA
______________________________ 3:17-cv-05329-WHA
3:17-cv-05380-WHA
UNITED STATES OF AMERICA; 3:17-cv-05813-WHA
DONALD J. TRUMP; U.S. Northern District of California,
DEPARTMENT OF HOMELAND San Francisco
SECURITY; ELAINE C. DUKE, in her
official capacity as Acting Secretary of the ORDER
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 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.
Before: WARDLAW, GOULD, and WATFORD, Circuit Judges.
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
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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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