(ORDER LIST: 586 U.S.)
FRIDAY, NOVEMBER 16, 2018
18-315 COCHISE CONSULTANCY, ET AL. V. UNITED STATES, EX REL. HUNT
The petition for a writ of certiorari is granted.
18-557 IN RE DEPARTMENT OF COMMERCE, ET AL.
The petition for a writ of mandamus is treated as a petition for a writ of certiorari. The petition for certiorari is granted. Petitioners’ brief on the merits is to be filed on or before Monday, December 17, 2018. Respondents’ brief on the merits is to be filed on or before Thursday, January 17, 2019. The reply brief is to be filed on or before Monday, February 4, 2019. The case is set for oral argument on Tuesday, February 19, 2019.
https://www.supremecourt.gov/docket/docketfiles/html/public/18-557.html (Supreme Court docket #18-557)
Issue : Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.
The Government filed this as an application for a Writ of Mandamus, which is a prerogative Writ ordering a lower court, in this case the District Court to take a specific action. However, in granting this application, the Supreme Court converted it to a Writ of Certiorari, which essentially permits the Supreme Court to conduct a plenary review of the entire case, not just what the parties have presented. This is very much an indication that a majority on the Supreme Court will likely greatly restrict the scope of this case or even order it dismissed entirely. The fact that they have already dictated briefing and oral argument dates likely indicates that this case will be decided very soon after oral arguments.
If the Supreme Court dismisses the case, the Citizenship Question will be on the 2020 Census.