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Second Circuit lifts stay of compelled production of administrative record in DACA litigation

By Pamela Wolf, J.D.

The Second Circuit Court of Appeals has refused to grant the Department of Homeland Security a writ of mandamus to halt a discovery order issued by a New York federal district court in a pair of lawsuits challenging the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) Program. Noting, among other things, that the extraordinary remedy of mandamus will not issue “absent ‘a judicial usurpation of power or a clear abuse of discretion,’” the appeals court’s characterization of the government’s argument against compelled production of the complete administrative record echoes the dissenting Justices in the Supreme Court’s recent stay of several discovery orders in a California federal case that similarly challenged the DACA decision. The Second Circuit’s order lifts the stay of the New York court’s order compelling the document production.

DHS seeks writ of mandamus. Appealing to the Second Circuit for a writ of mandamus that would direct the district court in Batalla Vidal v. Duke (Nos. 16-CV-4756 and 17-CV-5228) to reverse course on its order compelling more complete production of records, the DHS argued that it cannot be ordered to either (1) supplement its administrative record or (2) to produce a privilege log for materials withheld from the record.

“With respect to the Government’s first argument, the Government’s position appears to be that in evaluating agency action, a court may only consider materials that the Government unilaterally decides to present to the court, rather than the record upon which the agency made its decision,” wrote the Second Circuit. “To the contrary, judicial review of administrative action is to be based upon ‘the full administrative record that was before the Secretary at the time [s]he made [her] decision.’”

Supreme Court dissent. The language of the Second Circuit’s order closely tracks that of the dissenting Justices in the Supreme Court’s 5-4 order on December 8 that stayed several federal court orders in a California case (Regents of the University of California v. DHS) that, had they not been stayed, would have required the Trump administration to review and possibly disclose substantially more internal documents regarding its DACA decision. In the view of Justice Breyer, with whom Justices Ginsburg, Sotomayor, and Kagan joined, the government was claiming that review of its decision terminating DACA must be based “exclusively on the documents that the Government itself unilaterally selected” to provide to the district court. Said Justice Breyer, “I am not aware of any precedent supporting the Government’s position.”

“We held in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 420 (1971), that the ‘whole record’ means ‘the full administrative record that was before the Secretary at the time he made his decision,’” wrote Breyer. “Neither this Court nor the lower courts has ever read Overton Park to limit the ‘full administrative record’ to those materials that the agency unilaterally decides should be considered by the reviewing court.”

Track record not so good. Along the way to its conclusion that a writ of mandamus was unwarranted and that the stay of the district court’s order to compel production of the complete administrative record should be lifted, the Second Circuit pointed to the California case, in which the government had filed the same administrative record. There, the district court reviewed in camera documents that were considered during the repeal of DACA, but had not been included in the record filed with the court, and concluded that 48 of them were not subject to privilege.

Moreover, as the Supreme Court pointed out, the Second Circuit noted, nearly 200 pages of the 256-page record submitted to the district court consisted of published opinions from various federal courts. “It is difficult to imagine that a decision as important as whether to repeal DACA would be made based upon a factual record of little more than 56 pages, even accepting that litigation risk was the reason for repeal. Accordingly, ‘there is a strong suggestion that the record before the [District Court] was not complete,’ entitling the plaintiffs to discovery regarding the completeness of the record.”

California and New York cases different. The appeals court was also mindful of the Supreme Court’s rulings, but noted that there were significant distinctions between the California case and the case before the Second Circuit. One difference is that the Supreme Court did not decide the merits of the discovery dispute, but instead remanded that case for the district court to first resolve the government’s “threshold arguments ‘that the Acting Secretary’s determination to rescind DACA is unreviewable because it is committed to agency discretion,’ 5 U.S.C. § 701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction.” Here, in contrast, the district court has already considered and rejected those threshold arguments.

Moreover, the case before the Second Circuit did not involve the more extensive scope of discovery at issue in the California case. Here, the district court’s order covers only documents considered by then-Acting Secretary Elaine Duke and Attorney General Jeff Sessions (who had announced they jointly made the DACA decision), as well as their first-tier subordinates. Accordingly, the order thus does not encompass White House documents, and the number of officials whose files would be reviewed, and the number of documents involved in that review, would be “dramatically fewer than in the case before the Supreme Court,” the appeals court observed.

The case, In re Kirstjen M. Nielsen, is No. 17-3345.