Emami v. Nielsen

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FARANGIS EMAMI, et al., Case No. 18-cv-01587-JD

8 Plaintiffs, ORDER RE DISCOVERY v. 9 Re: Dkt. No. 117 10 KEVIN K. McALEENAN, et al., Defendants. 11

12 PARS EQUALITY CENTER, et al., Case No. 18-cv-07818-JD

13 Plaintiffs, 14 v. Re: Dkt. No. 138

15 MIKE POMPEO, et al., Defendants. 16

17 This order resolves the multiple discovery disagreements between the parties that are 18 outlined in the joint discovery report. Dkt. No. 117 (Case No. 18-1587). 19 The prior dismissal order held that plaintiffs had adequately alleged a claim under United 20 States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), with respect to whether the State 21 Department has failed to abide by its own rules and procedures for the waiver program that was 22 created pursuant to Presidential Proclamation 9645. Dkt. No. 74 (Case No. 18-1587) at 13-16. 23 The allegations that were key to sustaining the claim over the government’s Rule 12(b)(6) 24 challenge included factual allegations that: (1) although the State Department’s guidance provided 25 that waiver eligibility should be disclosed at the visa interview, applicants were denied waivers 26 without an interview after the Proclamation’s effective date, or any opportunity to submit 27 documents and demonstrate eligibility for a waiver; and (2) although the State Department’s 1 case-by-case basis, officers were not allowed to exercise that discretion and individualized waiver 2 decisions were usurped by a de facto policy of blanket denials. Id. This latter allegation was 3 supported by the declaration of a former consular officer, among other facts. Id. 4 That is the main claim in this case, and while it may be formally styled as an expression of 5 the Accardi doctrine, it is at heart a claim of procedural fairness that owes as much to the Due 6 Process Clause as to the Administrative Procedures Act. See Jefferson v. Harris, 285 F. Supp. 3d 7 173, 185 (D.D.C. 2018). It is fundamentally unfair, and antithetical to our tradition as a republic 8 of laws, for the government to grant procedures and rights on paper that it fails to honor in 9 practice. 10 Consequently, the government’s insistence that the evidence in this case should be strictly 11 cabined to an “administrative record” is not well taken. As the government has previously 12 recognized, there is no “administrative record” when the essence of the claim is that the 13 government has failed to act in accordance with its own rules and regulations. The government’s 14 position is all the more doubtful because it has tendered as the basis of a summary judgment 15 motion a new report that it says disproves the claim that waivers have been consistently denied in 16 violation of the State Department’s procedures. See Dkt. No. 98 (Case No. 18-1587); Dkt. 17 No. 120 (Case No. 18-7818). Even under the traditional notions of an administrative record that 18 the government seeks to invoke, this would be an extra-record document. In effect, the 19 government seeks to rely on a document that it created after this litigation started while insisting 20 that plaintiffs on their part have no right to go beyond the “record,” whatever that might be in 21 these circumstances. The government has compounded the problem with its position by 22 suggesting that plaintiffs simply have to live with the report on a no-questions-asked basis. 23 This will not do. Pre-trial discovery is “ordinarily accorded a broad and liberal treatment,” 24 and it is a hallowed principle in the United States courts that “wide access to relevant facts serves 25 the integrity and fairness of the judicial process by promoting the search for the truth.” Shoen v. 26 Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993) (internal quotations omitted). The government is not, of 27 course, excepted from this principle. 1 At the same time, the Court cannot say that all of the discovery plaintiffs seek is 2 appropriate. Several of the proposed discovery requests go beyond the Accardi claim as it 3 currently stands. It is possible the scope of the case might be broadened after the resolution of the 4 pending round of motions to dismiss that are currently under submission, but that issue will be 5 saved for another day. The key inquiry is what discovery is proportional and fair in light of the 6 claim at this time. 7 The Court orders the following discovery on the categories listed in the parties’ joint 8 report. Dkt. No. 117 (Case No. 18-1587). 9 I. TRANCHE ONE 10 1. Materials “directly or indirectly” considered in adopting the guidance mandated by Section 3(c) of the Proclamation, including FAM Section 302.14-10 and the additional 11 guidance materials provided to consular officers responsible for visa adjudications under the Proclamation 12 DENIED. Materials “considered” in adopting guidance does not bear on whether the State 13 Department failed to follow the guidance that was issued. 14 2. Materials from other defendant agencies besides the Department of State and from 15 contractors involved in implementing the Proclamation 16 DENIED. As the Court’s prior order made clear, the agency at issue here is the 17 Department of State. Dkt. No. 74 (Case No. 18-1587) at 14. 18 3. Materials representing the work and recommendations of subordinates involved in drafting, revising, or implementing FAM Section 302.14-10 and the relevant guidance 19 documents 20 DENIED. As with the first category, the Court does not find this category of materials to 21 bear on the question of whether the State Department has failed to follow the guidance it issued. 22 4. Materials referenced by Record documents but not included in the Record 23 GRANTED, to the extent the documents referenced relate to the issues of (1) the process 24 by which applicants were permitted – or not permitted – to submit documents and demonstrate 25 eligibility for a waiver, or (2) the scope of individual consular officers’ discretion to grant or deny 26 waivers. 27 5. Privilege log 1 defendants’ claims of privilege. 2 6. “Accardrrelated discovery” 3 DENIED. This category is too vague as it is described by plaintiffs in the joint report. 4 Dkt. No. 117 (Case No. 18-1587) at 8. 5 || IL TRANCHE TWO 6 The parties describe as “tranche two” discovery relating to the State Department report 7 || referenced in defendants’ pending motions to dismiss, which provided statistics on waiver 8 || processing between December 2017 and March 2019. 9 For this tranche, the Court has been advised that the government intends to provide 10 || plaintiffs with a further declaration about the report by September 12, 2019, to be followed by a 11 possible a Rule 30(b)(6) deposition of defendants’ person most knowledgeable about the report. 12 The Court defers ruling on the discovery outlined by plaintiffs concerning the State 13 Department report. Dkt. No. 117 (Case No. 18-1587) at 23-24. The parties may raise further 14 || disputes for “tranche two,” if any, using the Court’s discovery dispute letter procedure following 15 || plaintiffs’ receipt and review of defendants’ declaration as well as, possibly, the taking of a 16 defendants’ 30(b)(6) deposition. IT IS SO ORDERED. 18 Dated: September 12, 2019 19 20 JAMES/DONATO 21 United Btates District Judge 22 23 24 25 26 27 28