DOJ threatens to take DACA litigation to Supreme Court if 9th Circuit doesn’t act quickly

The federal government is pushing the 9th U.S. Circuit Court of Appeals to finish by the end of the month its review of a universal injunction blocking the Trump administration from dismantling the Obama-era Deferred Action for Childhood Arrivals immigration program.

If it doesn't, the U.S. Department of Justice said it plans to take its case to the U.S. Supreme Court without the 9th Circuit's decision, a government lawyer told the court in a letter Wednesday.

"[I]n order to ensure review by the Supreme Court during its current term, we intend to again petition the Supreme Court for a writ of certiorari before judgment to review the district court's preliminary injunction order and related orders in the event that this court does not issue its judgment by Wednesday, October 31," Justice Department appellate litigation counsel Mark B. Stone wrote.

This isn't the first attempt to get the justices to review U.S. District Judge William Alsup's Jan. 9 preliminary injunction blocking the government from ending the program, which provides certain protections against deportation for people brought into the U.S. as children without permission.

The Justice Department asked the nation's high court later that month to take the case immediately. In February, the justices said no, but urged the 9th Circuit to "proceed expeditiously to decide the case."

It was against that backdrop that a three-judge panel of the appeals court including Judges Kim McLane Wardlaw, Jacqueline Nguyen and John B. Owens heard arguments in the case this May. Regents of the University of California, et al. v. U.S. Department of Homeland Security, et al., 18-15068 (9th Cir., filed Sept. 8, 2017).

Previously, the court had granted motions to expedite the briefing and oral arguments schedule after already fast-tracking the case of its own volition. The panel declined to grant a motion requesting an expedited process for issuing an actual opinion.

U.S. District Judge William Alsup

Plaintiffs in the case, which include the leadership of California's public university system and several individual DACA recipients, had said the need to push faster in deciding the appeal was unnecessary.

"The government's request goes beyond 'expedition' and seeks to deprive this court of adequate time to deliberate and write a considered opinion," Jeffrey M. Davidson, a San Francisco-based partner at Covington & Burling LLP who represents the university system, wrote in opposition.

Davidson declined to comment Wednesday on the latest Justice Department request.

Though unusual, the government's pressuring of the 9th Circuit to decide the appeal within the next two weeks is not unique.

In June, the Justice Department sent a similar letter to the 7th U.S. Circuit Court of Appeals, informing its judges that the government would seek a stay limiting the scope of a universal injunction blocking the administration from denying funds to self-designated sanctuary cities if the court did not grant within four days two similar stay requests before the circuit. City of Chicago v. Sessions, 17-2991 (7th Cir. filed Aug. 7, 2017)

That court denied the requests the same day, noting it was waiting for the Supreme Court's opinion in the travel ban litigation before deciding to act on the stay motions.

Government lawyers promptly turned to the justices, as promised, but they withdrew their high court stay request when the 7th Circuit ultimately granted the appeals court stay several days later.

The letters continue a trend on the part of U.S. Attorney General Jeff Sessions' Justice Department to push for quick appellate intervention in hot-button cases.

This summer, the government urged the 9th Circuit to expedite an appeal involving litigation that successfully blocked President Donald Trump's ban on transgender soldiers serving in the military.

The Justice Department said it hoped to get the case -- regardless of the 9th Circuit's decision -- on the Supreme Court's October 2018 term docket. Karnoski, et al. v. Trump, et al., 18-35347 (9th Cir. filed Aug. 28, 2017).

And ongoing litigation in an Oregon federal court presenting a novel legal theory aiming to find leaders in the federal government responsible for climate change has come to the 9th Circuit twice on mandamus petitions filed by the Justice Department, which argued a federal judge was wrong in allowing the case to proceed past summary judgment and later granting sweeping discovery requests. Juliana, et al. v. United States, et al., CV15-01517 (D. Oregon, filed Aug. 12 2015).

Both times, the 9th Circuit said the petitions were premature and the government has sought at least twice Supreme Court intervention, which the justices have declined.