Updating an earlier post regarding Solicitor General Noel Francisco’s petition for certiorari before judgment in the DACA litigation:

The SG flagged to the Supreme Court’s attention on Monday that the Ninth Circuit appeared to be flouting the justices’ February denial of Francisco’s initial Rule 11 cert petition, because the justices’ stated in their denial that they fully expected the Ninth Circuit to decide the appeal “expeditiously,” and yet six months after the May 2018 oral arguments the case was still under advisement in the circuit court. 

On Wednesday, the Ninth Circuit responded to the potential embarrassment of having the Supreme Court take this matter away from the appellate court without a decision, issuing an opinion in Regents of Univ. of Cal. v. Department of Homeland Security

In its 99-page opinion, the panel affirmed the district court’s grant of a preliminary injunction, holding that DHS’s decision to end DACA was arbitrary and capricious, and thus violates the Administrative Procedure Act. 

The Rule 11 cert petition in Regents thus becomes moot, although companion petitions from pending appeals in the Second Circuit and D.C. Circuit are still live. No doubt Francisco will file within days a standard cert petition in the Regents case. The justices will almost definitely grant that petition while they deny the current petition as moot, and they can either consolidate the other cases with it, or deny those petitions as unnecessary while they decide the California case. 

It is not clear that the other two cases add anything of value to an examination of the core legal challenge, so there appears to be little need to grant cert before judgment in the other cases. 

The case is No. 18-15068 in the U.S. Court of Appeals for the Ninth Circuit. 


Ken Klukowski is a member of the executive committee for the Federalist Society’s Federalism and Separation of Powers Practice Group. Follow him on Twitter @kenklukowski.