State Of New York et al v. Donald Trump et al

Filing 63

MEMORANDUM & ORDER, The Court GRANTS in part, DENIES in part and RESERVES RULING in part on Defendants' motion to vacate the Order (Dkt. 69). So Ordered by Judge Nicholas G. Garaufis on 10/17/2017. (Re: (69) Motion to Vacate in case 1:16-cv-04756-NGG-JO; and, (48) Motion to Vacate in case 1:17-cv-05228-NGG-JO) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

MARTIN JONATHAN BATALLA VIDAL et al.,
Plaintiffs,
MEMORANDUM & ORDER

-against16-CV-4756(NGG)
(JO)

ELAINE C. DUKE,Acting Secretary, Department of
Homeland Security, et al..
Defendants.
-X

STATE OF NEW YORK et al.,

Plaintiffs,
MEMORANDUM & ORDER

-against17-CV-5228(NGG)
(JO)

DONALD TRUMP,President ofthe United States, et al..
Defendants.
X

NICHOLAS G. GARAUFIS,United States District Judge.

On September 27,2017, Magistrate Judge James Orenstein issued a case management
and scheduling order that authorized and set a schedule for discovery in the above-captioned
actions, which challenge the Government's decision to end the Deferred Action for Childhood
Arrivals("DACA")program. (Sept. 27,2017, Case Management and Scheduling Order(the
"Order")(Dkt. 67)

Defendants timely objected, arguing that(1) discovery is inappropriate in

^ Except as otherwise noted, all docket citations refer to the docket in Batalla Vidal v. Duke. No. 16-CV-4756
(E.D.N.Y.), and all record citations refer to the Administrative Record ("A.R.")(Dkt. 77-1). For convenience, the court
refers to the Plaintiffs in Rqtallii Vidal v Dnkp as the "Batalla Vidal Plaintiffs," the Plaintiffs in New York v. Trump.No.
17-CV-5228, as the "State Plaintiffs," and the Department of Homeland Security as "DHS."
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this case because the court's review is limited to the administrative record ("A.R.")(Dkt. 77-1);

(2)discovery should be stayed pending resolution oftheir anticipated motion to dismiss;(3)the
court should vacate Paragraph 11(c) ofthe Order, which requires them to compile a privilege log

with respect to documents withheld from the administrative record on privilege grounds, because

that paragraph is vague, overbroad, and raises separation-of-powers concerns;^ and(4)they
could not possibly compile a privilege log within nine days, as the Order required. (Defs. Sept.
22,2017, Ltr. Regarding Discovery ("Defs. Sept. 22 Ltr.")(Dkt. 65); Defs. Sept. 29,2017, Mot.
to Vacate the Case Management Order ("Defs. Mot.")(Dkt. 69).)

In order to give the court the opportunity to review the administrative record before

ruling on Defendants' remaining objections, and in light of Defendants' protests that they could
not compile the privilege log before it was due, the court ordered the deadline for producing the
privilege log extended by two weeks. (Oct. 3,2017, Order(Dkt. 72)at 3-4.) The court
otherwise reserved ruling on the motion. (Id, at 4.) After the court issued this order. Defendants
submitted a 256-page administrative record, composed of documents "actually considered by
Elaine C. Duke,the Acting Secretary of Homeland Security, in connection with her September 5,
2017 decision" to rescind the 2012 memorandum that created the DACA program. (Notice of

Filing of A.R.(Dkt. 77), EOF at p.3; A.R.) Plaintiffs have moved Judge Orenstein to compel

The disputed paragraph reads in full as follows:

The privilege log to be produced by October 6,2017, shall include a description
of every document considered within any component of the executive branch as

part ofthe process of determiniDg the policy and actions at issue in these actions
that are not being produced and as to which the defendants would assert a claim
of privilege, regardless of whether the defendants deem such that [sic] record to
be part of the ofScial administrative record. Failure to describe a pertinent
document in the privilege log due on October 6, 2017, will waive any later
assertion of privilege absent a showing of good cause. See Loc. Civ. R. 26.2,
26.3.

Order 1111(c).

Defendants to complete production ofthe administrative record. (Oct. 11,2017, Order(Dkt. 81);
Oct. 13, 2017,Pis. Mot.to Compel Defs. to Produce a Complete A.R.(Dkt. 84).)
I.

EXTRA-RECORD DISCOVERY

The bulk ofDefendants' objections turn at least in part on whether the administrative
record is complete. Defendants argue that the "thrust" ofPlaintiffs' suits are challenges to
DHS's decision to end the DACA program, and thus that judicial review ofthese actions is
limited to the administrative record compiled by the agency, which the court must presume is
complete. See Nat'l Audubon Soc'v v. Hoffinan, 132 F.3d 7, 14(2d Cir. 1997). (Defs. Sept. 22
Ltr. at 1-2; Defs. Reply(Dkt. 80).) This argument is unavailing for two reasons.
First, in addition to asserting claims under the Administrative Procedure Act,5 U.S.C.
§ 500 et seq.. Plaintiffs also assert(among other claims) constitutional and equitable claims
challenging certain collateral decisions affecting DACA beneficiaries. Plaintiffs contend that
Defendants violated the Due Process Clause ofthe Fifth Amendment by failing to provide

individualized notice to DACA recipients who were eligible to renew their deferred action and
work authorization that they needed to do so prior to October 5,2017, notjust"as soon as

possible."^ (Second Am. Compl.(Dkt. 60)
Compl.")
(New York v. Trump Dkt. 54)

103-105, 160-66; Am. Compl.("State Pis. Am.

91-99,274-80.) Those claims do not challenge the

decision to end the DACA program, but instead challenge how Defendants communicated that
decision to DACA beneficiaries. The State Plaintiffs also contend that Defendants violated the

^ The State Plaintiffs also contend that Defendants violated the Due Process Clause by failing to provide
individualized notice to DACA recipients who, under Acting Secretary Duke's September 5, 2017, memorandum
terminating the DACA program, were ineligible to renew their deferred action and work authorization, that they
were ineligible to renew their DACA benefits. (Memorandum from Elaine C.Duke, Acting Sec'y,DHS,to James
W.McCament et al.. Rescission ofthe June 15,2012 Memorandum Entitled "Exercising Prosecutorial Discretion

with Respect to Individuals Who Came to the United States as Children"(Sept. 5,2017)
(AR 252); Am. Compl.
("State Pis. Am. Compl.")fNew York v. Trump Dkt. 54)

97-99,276-77.)

Fifth Amendment Due Process Clause and principles of equitable estoppel by changing the
Government's policy regarding how information derived from DACA applications would be
used for immigration-enforcement purposes. (State Pis. Am. Compl. KH 39-44, 87-90,240-52.)
Those claims, too, do not challenge the decision to end the DACA program itself, but challenge
the Government's alleged withdrawal ofprotections against the use ofDACA beneficiaries'
personal information to facilitate deportations. So far. Defendants have provided no reason why
the court's review ofthese claims, all of which challenge agency actions other than the decision

to end the DACA program, should be limited to an administrative record that documents the
decision to end the DACA program and sheds no light on why the Government allegedly made
these collateral decisions. Accordingly, the court finds no error in Magistrate Judge Orenstein's

decision that discovery should proceed with respect to these claims, and it denies Defendants'

motion to permanently stay discovery with respect to those claims."*
Second,the general rule that review ofagency action is limited to the administrative
record compiled by the agency is not absolute. Inquiry outside the administrative record is
appropriate in certain circumstances, including when plaintiffs make a "strong showing in

support of a claim of bad faith or improper behavior on the part of agency decisionmakers or
where the absence offormal administrative findings makes such investigation necessary in order

^ Because the court concludes that discovery is not inappropriate vi'ith respect to Plaintiffs' individualized-notice
and information-policy claims, it need not decide at this point whether its review of constitutional challenges to
agency action is, like its review ofchallenges under the APA that an agency acted arbitrarily and capriciously,
necessarily limited to the administrative record prepared by the agency.
5 U.S.C. § 706(permitting review of

agency action "contrary to constitutional right" and limiting review to "the whole record or those parts ofit cited by
a part/'). Compare Chiavu Chang v. U.S. Citizenship & Immigration Servs..
F. Supp. 3d. ,2017 WL
2480749(D.D.C.2017)(constitutional challenges to agency action not necessarily exempt from the rule that review
ofagency action is limited to the administrative record), and Jarita Mesa Livestock Grazing Ass'n v. U.S. Forest
Service. 58 F.Supp.Sd 1191, 1237-41 (D.N.M. Oct. 22,2014)(same), with Tafas v. Dudas. 530 F. Supp. 2d 786, 802
(E.D. Va. 2008)(noting that "in adjudicating constitutional claims imder the APA,courts have permitted plaintiffs
to submit evidence that was not part of the administrative record"), and Puerto Rico Pub. Hons. Admin, v. U.S.
Dep't ofHous.& Urban Dev.. 59 F. Supp. 2d 310,328(D.P.R. 1999)(authorizing discovery on constitutional
claims brought alongside APA claims). (Batalla Vidal Pis. Sept. 22, 2017, Ltr. Regarding Discovery(Dkt. 66)at 3,
5.)

to determine the reasons for the agency's choice." Nat'l Audubon, 132 F.3d at 14; see also
Camp V. Pitts. 411 U.S. 138,142-43(1973)(per curiam)(inquiry outside the administrative

record appropriate when "there was such failure to explain administrative action as to frustrate
effective judicial review"); cf. Am. Wildlands v. Kempthome,530 F.3d 991,1002(D.C. Cir.
2008)(identifying circumstances in which supplementation ofthe administrative record is

appropriate). Moreover, the presumption that the agency produced the complete adniiriistrative
record may be rebutted by "clear evidence" that the record omits relevant materials,

Bar MK

Ranches v. Yuetter, 994 F.2d 735,740(10th Cir. 1993), and does not apply where there is a

"strong suggestion that the record before the [cjourt [is] not complete," in which case limited
discovery may be authorized as to the completeness ofthe administrative record,
^Dopico v.
Goldschmidt 687 F.2d 644,654(2d Cir. 1982).

Whether the administrative record is complete is clearly relevant to the question of
whether discovery relating to Plaintiffs' challenges to the decision to end the DACA program
should be stayed. In light ofthe ongoing dispute before Judge Orenstein as to whether

Defendants should be compelled to produce a complete administrative record, the court declines
to address in the first instance the question of whether the administrative record is complete.

Accordingly, pending Judge Orenstein's resolution ofPlaintiffs' motion to compel,the court
reserves ruling on whether discovery relating to Plaintiffs' challenges to the decision to end the
DACA program shoiild be temporarily or permanently stayed, except as noted above.
II.

THE PRIVTLEGE-LOG REQUIREMENT

Relatedly, Defendants also argue that they should not be required to compile a privilege
log because privileged documents are not part ofthe administrative record. (Defs. Mot. at 4-5;
Defs. Reply at 2-3.) That contention, too, is premised on the presumption that the agency
correctly designated the administrative record. See Nat'l Ass'n of Chain Drug Stores v. U.S.

Dep't of Health & Human Servs.. 631 F. Supp. 2d 23, 28(D.D.C. 2009)(rejecting plaintiffs'
argument that defendants should be required to produce a privilege log so that plaintiffs and the
court could test defendants' claims of privilege as inconsistent with the "standard presumption
that the agency properly designated the [ajdministrative [rjecord"(quoting Amfac Resorts,

L.L.C. V. U.S. Dep't ofthe Interior. 143 F. Supp. 2d 7,12(D.D.C. 2001))); Tafas v. Dudas,530
F. Supp. 2d 786,800(E.D. Va. 2008)("Once a court has determined that a plaintiff has provided
enough evidence for the court to conclude that the agency has omitted otherwise relevant

material from the administrative record,the agency must explain its decision to do so.").^ (Defs.
Mot. at 4-5 (arguing that the requirement that Defendants produce a privilege log "upends the
presumption ofregularity that typically applies to the question of whether an administrative
record has been properly compiled").) If Defendants did not produce a complete administrative
record in the first instance, however,the court does not see why it should presume that they

correctly withheld privileged materials from the record; ifthe administrative record is

incomplete. Defendants will be required to assert privilege specifically with respect to any such
materials. See Gill v. Dep't of Justice. No. 14-CV-03120-RS(KAW),2015 WL 9258075, at *6
(N.D. Cal. Dec. 18,2015).

Again,the court declines to address this question in the first instance while the dispute
over the completeness ofthe administrative record is before Judge Orenstein. The court
therefore also reserves ruling on Defendants' motion to vacate Paragraph 11(c) ofthe Order in its
entirety.

^ Additionally, the court notes that, although the U.S. District Court for the District of Columbia has held that
agencies do not need to provide a privilege log in Administrative Procedure Act cases because, absent a "strong
showing of bad faith or improper behavior," pre-decisional and deliberative documents are legally immaterial, see,
e.g.. Oceana. Inc. v. Pritzker. 217 F. Supp. 3d 310,318-19(D.D.C. 2016), not all courts have reached the same
conclusion, see, e.g.. Inst for Fisheries Res, v. Burwell. No. 16-CV-01574(VC),2017 WL 89003, at *1 (N.D. Cal.
Jan. 10, 2017).

in.

THE SCOPE OF THE PRIVILEGE-LOG REQUIREMENT

The court will, however, narrow the scope ofParagraph 11(c) ofthe Order. The Order

requires Defendants to identify and assert privilege with respect to any documents "considered
within anv component ofthe executive branch as part ofthe process of determining the policy
and actions at issue in these actions that are not being produced and as to which the defendants

would assert a claim of privilege." (Order ^ 11(c)(emphasis added).) Defendants raise two

objections to the scope of this part ofthe Order. First, they argue that, on its face,the Order
requires the identification and assertion of privilege with respect to White House

communications that are "likely subject to a strong claim ofexecutive privilege," which "raises
substantial separation-of-powers concerns." (Defs. Mot. at 3.) Second,they argue that,

notwithstanding the two-week extension previously granted by the court, compliance with the

Order remains impossible "if[the Order is] taken literally." (Reply at 2.) Accordingly,
Defendants request that, ifthe court does not vacate Paragraph 11(c) ofthe Order in its entirety, it
should at least narrow that paragraph to "apply only to records that were actually considered by
the Acting Secretary of Homeland Security as part of her decision to rescind the DACA policy
but were omitted from the administrative record because they are privileged." (Id at 3.) The

court will limit the privilege-log requirement to DHS and the Department of Justice("DOJ"), but
it sees no reason to narrow that requirement further at this time.

A.

The Privilege-Log Requirement Only Applies to DHS and the DOJ

The court agrees that, on its face. Paragraph 11(c) ofthe Order raises potential separationof-powers problems. As the Supreme Court observed in Chenev v. U.S. District Court for the
District of Columbia. 542 U.S. 367(2004), courts must narrow overly broad and intrusive

discovery requests directed at the highest levels ofthe Executive Branch, lest "vexatious
litigation... distract [the Executive Branch] from the energetic performance ofits constitutional
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duties." Id. at 382; see id. at 381-85. In Cheney, the Court specifically rejected the D.C.

Circuit's reasoning that mandamus was unwarranted because the defendants could invoke

privilege with respect to specific documents. See id. at 383,388-89. By requiring the White
House to identify and assert privilege with respect to specific documents or risk waiving

privilege over those documents,Paragraph 11(c) ofthe Order potentially raises constitutional
concems akin to those at issue in Cheney.

The court need not consider the full scope ofthese constitutional concems, or whether
these concems are offset by the court's need to obtain information necessary to fulfill its own

"constitutional responsibility to resolve cases and controversies within its jurisdiction." Id. at
385. At this point. Plaintiffs only seek materials considered by DHS and DOJ in connection with
the decision to end the DACA program, and argue that the Order's reference to the "executive
branch" need not be read to include other agencies or the White House. (Batalla Vidal Pis. Resp.

in Opp'n to Defs. Mot. to Vacate ("Batalla Vidal Pis. Opp'n")(Dkt. 70), at 2& n.2; State Pis.
Resp. in Opp'n to Defs. Mot. to Vacate OJew York v. Trump Dkt. 49)at 6-8 & n.6.) Indeed, the
Batalla Vidal Plaintiffs specifically suggest, without conceding that the Order is inappropriate as
written, that the reference to "any component ofthe executive branch" could be replaced with
"the Department of Homeland Security and the Department of Justice." (Batalla Vidal Pis.

Opp'n at 2 n.2.) Because Defendants have raised separation-of-powers objections only with
respect to the discovery of White House documents(Defs. Mot. at 3; Defs. Reply at 3-4), the
court sees no reason why limiting Paragraph 11(c) ofthe Order to require Defendants to compile
a privilege log only with respect to DHS and DOJ documents would not cure any separation-ofpowers problems with the original Order.

The court therefore grants Defendants' motion in part by limiting Paragraph 11(c) ofthe
Order to relevant documents considered within DHS or DOJ as part ofthe process of
determining the policy and actions at issue in these cases.
B.

The DOJ Is Not Exempt from the Privilege-Log Requirement

The court rejects Defendants' contention, however,that Paragraph 11(c) should be limited
to only those materials that Acting Secretary Duke "actually considered ... as part of her
decision to rescind the DACA policy but were omitted from the administrative record because

they are privileged."^ (Defs. Reply at 3.) Defendants argue that DOJ materials pertaining to the
decision to rescind the DACA program are irrelevant, because DHS has sole responsibility for

ending the program. (Id at 4.) Indeed, while Defendants acknowledge that DOJ "participated in
deliberations regarding the rescission ofDACA (most, but not all of which remain privileged),"

they aver that it is "nonsensical as a matter oflaw" to suggest that DOJ was even partially legallv
responsible for the decision to end the DACA program. (Id)

Ordinarily, Defendants' argument might have some force. Regardless of which

Executive Branch officials played a role in ending the DACA program. Acting Secretary Duke
implemented that decision by issuing the memorandum that rescinded the 2012 memorandum
that created the DACA program. (Memorandum from Elaine C.Duke, Acting Sec'y, DHS,to
James W. McCament et al.. Rescission ofthe June 15,2012 Memorandum Entitled "Exercising
Prosecutorial Discretion with Respect to Individuals Who Came to the United States as

^ As an initial matter, it is not clear that Defendants correctly define the scope ofthe administrative record, which
includes, at the very least, all materials that Acting Secretary Duke considered "directly or indirectly,"
Comprehensive Cmtv. Dev. Corp. v. Sebelius. 890 F. Supp. 2d 305,309(S.D.N.Y. 2012)(quoting Pac. Shores
Subdivision Cal. Water Dist. v. U.S. Armv Corps, ofEng'rs. 448 F.Supp.2d 1,4(D.D.C. 2006)), including any nonprivileged "work and recommendations ofsubordinates" on which [she] based ... her decision," Amfac Resorts.
143 F. Supp.2d at 12. The court will reserve ruling on the adequacy of Defendants' certification ofthe
administrative record, however, pending the resolution ofPlaintiffs' motion to compel Defendants to complete the
administrative record.

Children"(Sept. 5,2017)
(AR 252).) The problem with Defendants' argument, however, is that
they have repeatedly represented to this court that Attorney General Jeff Sessions and Acting
Secretary Duke jointly decided to rescind the DACA program. As Defendants explained at the
September 14, 2017,status conference,'Ttlhe Attomev General and DHS both decided that
[DACA]is an unlawful program, and what they decided was—it was a decision based on

litigation risk

So in their judgment, what thev decided to do is ... have a responsible way to

wind this program down ...." (Sept. 14, 2017, Hr'g Tr.(Docket Number Pending) 13:17-14:06
(emphasis added).) Likewise, when Judge Orenstein probed Defendants' position that the
DACA program was unconstitutional but that they nonetheless had authority to continue

renewing certain individuals' DACA status. Defendants explained that "the Attomev General
decided that it would be harsh—^we'd be in a much different situation if the Attomev General

had decided we need to end this program now"(id 24:21-24)(emphasis added), later adding that
"[tjhese are decisions that are committed to the executive branch[,] and the Attomev General and
DHS decided that, in the exercise oftheir discretion, they're going to wind down this program
that had substantial litigation risk"(id 26:1-6)(emphasis added). Neither the Government's

Motion nor its Reply acknowledge—^let alone explain—^this apparent reversal in position.
In light ofthe Defendants' conflicting statements about which agencies were responsible
for ending the DACA program,the court declines, at this point in the proceedings, to narrow

Paragraph 11(c) ofthe Order to only materials considered within DHS.^

'
Indeed, it is not clear that, even if DHS were exclusively legally responsible for the decision to end the DACA

program,DOJ materials could properly be excluded from the administrative record and associated privilege log. As
discussed above,the whole administrative record considers all materials "directly or indirectly" considered by the
agency decisionmaker. Because Acting Secretaiy Duke's stated rationale for rescinding the DACA program relied
heavily on Attorney General Sessions's recommendations that she do so, materials on which the Attorney General
relied in formulating his recommendation may be properly included in the administrative record on the grounds that
Acting Secretary Duke "indirectly" considered them. The court need not decide this question in the first instance
and without the benefit offuller briefing by the parties or reference to specific documents.
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IV.

CONCLUSION

For the foregoing reasons, the court GRANTS in part, DENIES in part, and RESERVES

RULING in part on Defendants' motion to vacate the Order (Dkt. 69).
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn,New York
October ^,2017

NICHOLAS G. GARAUFI^ 1
United States District Judge

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