State of California v. U.S. Department of Homeland Security

• Court: District Court, N.D. California
• Decided: April 1, 2020
• Docket: 4:19-cv-04975
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 STATE OF CALIFORNIA, et al., Case No. 19-cv-04975-PJH 8 Plaintiffs, Case No. 19-cv-04980-PJH

9 v. ORDER GRANTING IN PART AND 10 U.S. DEPARTMENT OF HOMELAND DENYING IN PART MOTIONS TO SECURITY, et al., COMPLETE THE RECORD AND 11 GRANTING MOTIONS TO COMPEL Defendants. DISCOVERY 12 Re: Dkt. Nos. 149 (No. 19-cv-04975- 13 PJH), 150 (No. 19-cv-04980-PJH) 14 LA CLINICA DE LA RAZA, et al., 15 Plaintiffs, 16 v.

17 DONALD J. TRUMP, et al., 18 Defendants. 19

20 21 Plaintiffs the State of California, State of Oregon, Commonwealth of Pennsylvania, 22 and District of Columbia’s (the “State plaintiffs”) and La Clínica de La Raza, African 23 Communities Together, California Primary Care Association, Central American Resource 24 Center, Farmworker Justice, Council on American-Islamic Relations-California, Korean 25 Resource Center, Maternal and Child Health Access, and Legal Aid Society of San 26 Mateo County’s (the “organization plaintiffs” and together with the State plaintiffs, the 27 1 “plaintiffs”)1 motions to complete the administrative record and compel discovery came on 2 for hearing before this court on March 4, 2020. State plaintiffs appeared through their 3 counsel, Julia Mass and Anna Rich, and organization plaintiffs appears through their 4 counsel, Mayra Joachin, Nicholas Espiritu, Tanya Broder, and Alvaro Harris. Defendants 5 U.S. Citizenship and Immigration Services (“USCIS”), Department of Homeland Security 6 (“DHS” or the “Agency”), President Donald J. Trump, Chad Wolf,2 as Acting Secretary of 7 DHS, and Kenneth T. Cuccinelli as Acting Director of USCIS appeared through their 8 counsel, Joshua Kolsky. Having read the papers filed by the parties and carefully 9 considered their arguments and the relevant legal authority, and good cause appearing, 10 the court hereby rules as follows. 11 BACKGROUND 12 On August 16, 2019, the State plaintiffs filed a complaint (“Compl.”) to enjoin 13 enactment of regulations promulgated by DHS entitled Inadmissibility on Public Charge 14 Grounds (the “Public Charge Rule” or “Rule”), 84 Fed. Reg. 41,292 (Aug. 14, 2019). The 15 Agency published the final rule in the Federal Register on August 14, 2019 with an 16 effective date of October 15, 2019. Id. at 41,292. State plaintiffs’ complaint asserts six 17 causes of action: (1) Violation of the Administrative Procedure Act (“APA”), 5 U.S.C. 18 § 706—Contrary to Law, the Immigration and Nationality Act (“INA”) and the Illegal 19 Immigration Reform and Immigrant Responsibility Act (“IIRIRA”); (2) Violation of APA, 5 20 U.S.C. § 706—Contrary to Law, Section 504 of the Rehabilitation Act; (3) Violation of 21 APA, 5 U.S.C. § 706—Contrary to Law, State Healthcare Discretion; (4) Violation of APA, 22 5 U.S.C. § 706—Arbitrary and Capricious; (5) Violation of the Fifth Amendment’s Due 23

24 1 Plaintiffs the City and County of San Francisco and County of Santa Clara (the “County plaintiffs”) in the related case City and County of San Francisco v. U.S. Citizenship and 25 Immigration Services, No. 19-cv-04717-PJH, have not filed a motion to compel and have not joined in either the State plaintiffs or organization plaintiffs’ motions. 26 2 This action was originally brought against Kevin McAleenan in his official capacity as Acting Secretary of Homeland Security. Compl. ¶ 27. As of November 13, 2019, Chad 27 Wolf is the acting secretary of DHS (see https://www.dhs.gov/person/chad-f-wolf) and, 1 Process clause requiring Equal Protection based on race; (6) Violation of the Fifth 2 Amendment’s Due Process clause, based on a violation of Equal Protection principles 3 based on unconstitutional animus. Dkt. 1.3 The organization plaintiffs’ complaint, also 4 filed August 16, 2019, asserts four causes of action: (1) Violation of APA, 5 U.S.C. 5 § 706—Contrary to the Statutory Scheme; (2) Violation of APA, 5 U.S.C. § 706— 6 Arbitrary, Capricious, or otherwise not in accordance with law; (3) Violation of the Fifth 7 Amendment based on Equal Protection for discriminating against non-white immigrants; 8 (4) under the Declaratory Judgment Act, seeking a determination that the Rule is invalid 9 because it was issued by an unlawfully-appointed agency director. No. 19-cv-04980- 10 PJH, Dkt. 1. 11 On August 26, 2019, plaintiffs (including the County plaintiffs) filed motions for 12 preliminary injunction (Dkt. 17), for which the court heard argument on October 2, 2019, 13 (Dkt. 109). On October 11, 2019, the court entered a preliminary injunction enjoining 14 defendants from applying the Rule to any person residing in the City and County of San 15 Francisco, Santa Clara County, the States of California, Oregon, or Maine, the 16 Commonwealth of Pennsylvania, or the District of Columbia. Dkt. 120, at 92. The court 17 also denied the organization plaintiffs’ motion on the basis that they do not fall within the 18 challenged statute’s zone of interest such that they do not have prudential standing to 19 bring an APA claim. Id. at 72, 92. The court did not rule on plaintiffs’ constitutional 20 claims as it was not within the scope of plaintiffs’ motion. Id. at 12 n.5. 21 Defendants appealed the preliminary injunction on October 30, 2019. Dkt. 129. A 22 three-judge panel of the Ninth Circuit stayed the preliminary injunctions issued within this 23 circuit on December 5, 2019.4 Dkt. 141; see City & Cty. of San Francisco v. USCIS, 944 24

25 3 Unless otherwise specified, references to the docket are to State of California v. U.S. Department of Homeland Security, Case No. 19-cv-04975-PJH. 26 4 The panel consolidated the three related cases before this court with a similar case from the Eastern District of Washington. That court issued a nationwide injunction of the Rule 27 on the same day as this court’s geographically limited preliminary injunction order. 1 F.3d 773 (9th Cir. 2019). Two district courts outside the Ninth Circuit also enjoined 2 implementation of the Rule—a nationwide injunction and an injunction limited to the State 3 of Illinois. New York v. U.S. Dep’t of Homeland Security, 408 F. Supp. 3d 334 (S.D.N.Y. 4 2019); Cook Cty., Illinois v. McAleenan, 417 F. Supp. 3d 1008 (N.D. Ill. 2019). On 5 January 27, 2020, the Supreme Court granted the federal government’s application for a 6 stay pending appeal of the nationwide injunction of the Public Charge Rule issued by the 7 District Court for the Southern District of New York. Dep’t of Homeland Security v. New 8 York, 140 S. Ct. 599 (2020). On February 18, 2020, the Ninth Circuit panel voted to deny 9 plaintiffs-appellees’ motions for reconsideration and motions for rehearing en banc. Dkt. 10 153. Finally, on February 21, 2020, the Supreme Court granted an application from the 11 federal government for a stay of the injunction issued by the District Court for the 12 Northern District of Illinois. Wolf v. Cook Cty., Illinois, 140 S. Ct. 681 (2020). 13 As relevant to the current motions, on November 25, 2019, defendants served the 14 administrative record on plaintiffs via an online portal. After several attempts to meet and 15 confer to resolve their differences concerning the administrative record, plaintiffs contend 16 the record remains incomplete, resulting in the current motions. They also seek 17 discovery on their constitutional claims. 18 DISCUSSION 19 A. Legal Standard 20 The APA provides that a court’s arbitrary and capricious review shall be based on 21 “the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. The whole 22 administrative record “includes everything that was before the agency pertaining to the 23 merits of its decision.” Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 24 1534, 1548 (9th Cir. 1993). Further, the whole record “consists of all documents and 25 materials directly or indirectly considered by agency decision-makers and includes 26 evidence contrary to the agency’s position.” Thompson v. U.S. Dep’t of Labor, 885 F.2d 27 551, 555 (9th Cir. 1989) (citing Exxon Corp. v. U.S. Dep’t of Energy, 91 F.R.D. 26, 33 1 The administrative record submitted by the federal government is entitled to a 2 presumption of completeness, which is rebutted by clear evidence. Id. A court may only 3 consider extra-record materials in the following circumstances: “(1) if necessary to 4 determine ‘whether the agency has considered all relevant factors and has explained its 5 decision,’ (2) ‘when the agency has relied on documents not in the record,’ or (3) ‘when 6 supplementing the record is necessary to explain technical terms or complex subject 7 matter.’” Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th 8 Cir. 1996) (quoting Inland Empire Public Lands Council v. Glickman, 88 F.3d 697, 703– 9 04 (9th Cir. 1996)). The Ninth Circuit also permits extra-record documents when a 10 plaintiff demonstrates bad faith by the agency. Id. (citing Nat’l Audubon Soc. v. U.S. 11 Forest Serv., 46 F.3d 1437, 1447 n.9 (9th Cir. 1993)). These exceptions are narrowly 12 construed and applied. Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) 13 (citations omitted). 14 B. Analysis 15 1. Motions to Complete the Administrative Record 16 Generally, plaintiffs identify the following categories of missing documents for 17 which they seek the court to order defendants to produce as part of the administrative 18 record: (a) complete, unredacted copies of all policies, procedures, forms and guidance 19 related to the application of the public charge ground of inadmissibility or any other 20 aspect of the Rule or previous drafts of the Rule; (b) the USCIS article, “Public Charge 21 Provisions of Immigration Law: A Brief Historical Background,” dated August 14, 2019, 22 and all data the article references, including Immigration and Naturalization Service, 23 DHS, and Department of State consular processing statistics related to public charge 24 determinations; (c) inter- and intra-agency communications and Agency communications 25 with outside organizations related to the Rule, including records related to the Agency’s 26 development of forms related to public charge determinations and estimates regarding 27 the burdensomeness of forms; (d) White House communications to the Agency related to 1 the Rule; and (e) missing comments from the public.5 The court addresses each 2 category in turn. 3 a. Policy and Guidance Documents 4 Plaintiffs argue that defendants did not provide policies, procedures, forms and 5 guidance that were considered either directly or indirectly by the Agency during the 6 rulemaking process, but not included in the record. Mtn. at 5. Alternatively, plaintiffs 7 contend that these policies are relevant background information. Defendants respond 8 that plaintiffs have not demonstrated that the policies in question were considered by the 9 relevant decision-maker. Opp. at 5–6. Defendants also contend that adding document 10 as background material is only appropriate for explanation or clarification of technical 11 terms or subject matter. Id. at 7. 12 As an initial matter, defendants have agreed to produce a few policy documents as 13 part of the record and some of plaintiffs’ requests are now moot. In their motion, plaintiffs 14 seek inclusion of portions of the USCIS’s Adjudicator’s Field Manual (“AFM”) and 15 Volumes 7 and 8 of the USCIS Policy Manual (the “Policy Manual”). Mtn. at 5–6. In their 16 opposition, defendants agree to add the full version of the following portions of the Policy 17 Manual: Volume 7, Part B and Volume 8, Part B, Chapter 3. Opp. at 7. Defendants also 18 agree to add Chapter 10.8 of the AFM. Finally, defendants agree to add internal versions 19 of those sections of the USCIS Policy Manual and the AFM that they have already 20 provided for the record, with the exception of Volume 8, Part B, Chapter 3 of the Policy 21 Manual because the Rule cited the public version of the document. Id. 22

23 5 Plaintiffs also identified two additional categories of missing materials: (i) information and data related to legal permanent residents who may undergo a public charge 24 inadmissibility determination upon return from trips abroad and (ii) correct, contemporaneous copies of websites included in the record. Mtn. at 3. In a footnote, 25 plaintiffs explain that, with respect to data on legal permanent residents, defendants informed them that such data was not before the Agency during the decision-making 26 process. Id. at 4 n.1. Plaintiffs also state that they are not moving for corrected copies of webpages referenced in the Rule but reserve the right to do so. Id. at 4 n.2. Because 27 plaintiffs do not specify these categories in any further detail and do not advance an 1 Despite these concessions, plaintiffs respond that there are other portions of the 2 policy manual to which they still require access. Specifically, they seek: USCIS Policy 3 Manual Vol. 2, Part A, chapter 42; USCIS Policy Manual Vol. 7, Part A, chapters 1, 4, 5, 4 6, and 10; USCIS Policy Manual Vol. 7, Part R; USCIS Policy Manual Vol. 8, Parts A, G, 5 and L; the remainder of USCIS Policy Manual Vol. 8, Part B; USCIS Policy Manual Vol. 6 12, Part D, chapter 2; AFM, chapter 61.2; Chapter 12 of the Deportation Officer’s Field 7 Manual; Chapter 45 of the Inspector’s Field Manual; and Standard Operating Procedures, 8 Adjudicative Templates, and Appendices referenced in the above-listed policy documents 9 and in the policy documents Defendants disclosed on February 12, 2020. Reply at 5–6. 10 Plaintiffs contend that the policy manuals should be considered under either the 11 second or third Inland Empire exceptions, i.e., whether the agency considered 12 documents not in the record or whether the policy manuals constitute relevant 13 background information. 14 i. Whether the Agency Considered Documents Not in the 15 Record 16 The second Inland Empire exception applies when an agency relied directly or 17 indirectly on documents not in the record. To meet this exception, the moving party must 18 “identify reasonable, non-speculative grounds for its belief that the documents were 19 considered by the agency and not included in the record.” Pac. Shores Subdivision, Cal. 20 Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 6 (D.D.C. 2006) (citation 21 omitted). The moving party “must do more than imply that the documents at issue were 22 in the agency’s possession.” Safari Club Int’l v. Jewell, No. CV-16094-TUC-JGZ, 2016 23 WL 7785452, at *2 (D. Ariz. July 7, 2016) (citing Sara Lee Corp. v. Am. Bakers Ass’n, 24 252 F.R.D. 31, 34 (D.D.C. 2008)). The question is whether plaintiffs have demonstrated 25 that the document in question “‘was so heavily relied on in the recommendations [of 26 subordinates] that the decision maker constructively considered it’ . . . even if there is no 27 evidence that the decision maker read the [document].” Sharks Sports & Entm’t LLC v. 1 2020 (first alteration in original) (quoting Wildearth Guardians v. U.S. Forest Serv., 713 F. 2 Supp. 2d 1243, 1256 (D. Colo. 2010)). 3 Plaintiffs argue that the Agency relied on knowledge of its policies in order to draft 4 the Rule and that even materials that were indirectly considered should be included in the 5 record. Mtn. at 6. Defendants contend that they should not be required to produce 6 policies that are related to the general subject matter of the Rule and in the Agency’s 7 possession but were not considered by the Agency’s decision-makers. Opp. at 5. 8 After reviewing the Rule and the Cisneros Declaration, the court finds that plaintiffs 9 have not carried their burden to demonstrate that the policy documents were “so heavily 10 relied on” by the agency’s decision makers. Plaintiffs attempt to draw comparisons 11 between excerpts from the Rule and a corresponding policy manual section or chapter 12 that implicates, at a high level, the same topic as the excerpt. For example, the Rule 13 states that the Agency “reject[s] the assertion that the rule shifts emphasis away from the 14 affidavit of support.” 84 Fed. Reg. at 41,439. Plaintiffs contend that this sentence 15 implicates Volume 7, Part A, which covers adjustment of status policies and procedures, 16 including affidavits of support. Cisneros Decl. ¶ 27. As a second example, the Rule 17 states that it applies to legal permanent residents returning from a trip abroad that has 18 lasted for more than sixth months. See 84 Fed. Reg. at 41,326. Plaintiffs argue this 19 reference implicates Volume 7, Part R, which addresses legal permanent residents who 20 have been abroad for an extended period of time. Cisneros Decl. ¶ 37. As a final 21 example, the introduction to the Rule creates a new public charge bond process. 84 Fed. 22 Reg. at 41,295 (“This rule also revises DHS regulations governing the discretion . . . to 23 accept a public charge bond . . . .:). Plaintiffs suggest that this reference to the public 24 charge bond process implicates AFM, chapter 61, as well as chapters cross-referenced 25 in chapter 61, all of which deal with public charge bonds. Cisneros Decl. ¶ 62. 26 The inquiry here is necessarily one of degree. On one end of the spectrum are 27 documents that were not explicitly cited in the Rule but were so heavily relied on in the 1 On the other end of the spectrum are documents that the Agency has in its possession 2 but were not heavily relied upon or considered in the Rule. The excerpts and references 3 cited by plaintiffs are not indicative of documents upon which a decision maker heavily 4 relied. Rather, the topics expressed in the excerpts and references are stated at a high 5 level of generality such that comparing those excerpts and references to equally high- 6 level policy manuals does not demonstrate the manuals were heavily relied upon. 7 Plaintiffs also contend that the policies are relevant to understanding the scope 8 and impact of the Rule’s policy changes. Mtn. at 6. In the supplemental Cisneros 9 Declaration, plaintiffs explain that on February 5, 2020, USCIS issued a “Policy Alert,” 10 which announced USCIS’s changes to portions of its Policy Manual to implement the 11 Rule. Dkt. 152-1, ¶ 31. According to plaintiffs, they evaluated the new versions of 12 Volume 7, Part A, chapters 4 and 6 of the Policy Manual against the prior version of the 13 policy manuals and determined that USCIS and DHS changed the policy manuals as a 14 result of the Rule. Plaintiffs renew their request to add the prior versions of the policy 15 manuals in order to evaluate whether defendants’ stated basis for departing from these 16 policies is sufficient as a matter of law. Reply at 3. 17 While it is permissible for plaintiffs to argue that defendants have departed from 18 prior policies without reasonable explanation (see, e.g., Fed. Commc’ns Comm’n v. Fox 19 Television Stations, Inc., 556 U.S. 502, 515 (2009)), they have not demonstrated that the 20 policy manuals are the appropriate prior policies by which to evaluate whether the Rule 21 departed from those prior policies. Generally, the “prior policies” in question are not the 22 policy manuals, but the prior public charge regulations. Thus, this case is distinguishable 23 from Grace v. Whittaker, 344 F. Supp. 3d 96, 113 (D.D.C. 2018), where the district court 24 permitted the plaintiffs to submit “government training manuals, memoranda, and a 25 governmental brief” as extra-record evidence. This evidence of past policies was directly 26 relevant to whether an Attorney General’s opinion and interim guidance implementing the 27 opinion departed from past policies. Here, because plaintiffs do not demonstrate that the 1 that those policies are the relevant past policies that the court should consider. 2 To reiterate a critical point, plaintiffs have the burden to rebut, with “clear 3 evidence,” the presumption of completeness and, further, the exception is narrowly 4 construed and applied. Lands Council, 395 F.3d at 1030. Several decades ago, in 5 Action for Children’s Television v. FCC, 564 F.2d 458, 477 (D.C. Cir. 1977), the D.C. 6 Circuit discussed whether “every informational input that may have entered into the 7 decisionmaker’s deliberative process” should be produced in the administrative record. 8 The court opined

9 why not go further to require the decisionmaker to summarize and make available for public comment every status inquiry 10 from a Congressman or any germane material say a newspaper editorial that he or she reads or their evening-hour 11 ruminations? In the end, why not administer a lie-detector test to ascertain whether the required summary is an accurate and 12 complete one? The problem is obviously a matter of degree, and the appropriate line must be drawn somewhere. 13 14 Id. (citation omitted). Similar considerations are present here; the court must draw a line 15 somewhere. The record does not include “every scrap of paper that could or might have 16 been created” relating to the Rule. Golden Gate Salmon Ass’n v. Ross, No. 17-cv-01172 17 LJO-EPG, 2018 WL 3129849, at *4 (E.D. Cal. Jun 22, 2018) (quoting TOMAC v. Norton, 18 193 F. Supp. 2d 182, 195 (D.D.C. 2002)). In sum, plaintiffs have not met their burden to 19 demonstrate that the Agency relied on documents, here policy manuals, not in the record. 20 ii. Whether the Policies Constitute Relevant Background 21 Information 22 The third Inland Empire exception applies to policies that may be produced as 23 relevant background information. This exception pertains to cases “in which 24 supplementation of the record through discovery is necessary to permit explanation or 25 clarification of technical terms or subject matter involving the agency action under 26 review.” Public Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982). Plaintiffs 27 contend that the policy manuals are also relevant background materials. Mtn. at 6. The 1 background information as extra-record evidence. Opp. at 7; Reply at 2. 2 Generally, the appropriate basis to permit background material in the 3 administrative record is to illuminate and explain technical subject matter. Thus, the 4 Ninth Circuit in Love v. Thomas stated that a “court may consider, particularly in highly 5 technical areas, substantive evidence going to the merits of the agency’s action where 6 such evidence is necessary as background to determine the sufficiency of the agency’s 7 consideration.” 858 F.2d 1347, 1356 (9th Cir. 1988) (citing Asarco, Inc. v. U.S. Envtl. 8 Prot. Agency, 616 F.2d 1153, 1160 (9th Cir. 1980)). Likewise, in Bunker Hill Co. v. EPA, 9 572 F.2d 1286, 1292 (9th Cir. 1977), cited by plaintiffs, the background information in that 10 case dealt with sulfur dioxide emissions. The court there characterized the background 11 information as “clarification in dealing with a technical subject with respect to which [the 12 court was] not expert[].” Id. (emphasis added). Thus, the court permitted such 13 background material because “courts are not straightjacketed to the original record in 14 trying to make sense of complex technical testimony.” Id.; see also San Luis & Delta 15 Mendota Water Authority v. U.S. Dep’t of the Interior, 984 F. Supp. 2d 1048, 1060 (E.D. 16 Cal. 2013) (discussing Bunker Hill and other relevant Ninth Circuit case law and 17 concluding that the cases all involve challenges to EPA regulatory actions that involved 18 scientific and technical determinations). 19 Plaintiffs also cite Tenneco Oil Co. v. Department of Energy, 475 F. Supp. 299, 20 317 (D. Del. 1979), where the district court stated that it “strain[ed] the Court’s 21 imagination to assume that the administrative decision-makers reached their conclusions 22 without reference to a variety of internal memoranda, guidelines, directives, and manuals, 23 and without considering how arguments similar to [the plaintiff’s] were evaluated in prior 24 decisions by the agency.” The Tenneco Oil court’s reasoning does not support plaintiffs’ 25 argument that internal policy manuals should be considered for background purposes. 26 Rather, this case speaks to the second Inland Empire exception concerning whether the 27 decision maker directly or indirectly considered a document. For the reasons explained 1 court to apply reasoning similar to Tenneco Oil. 2 Permitting background information is most appropriate when there are technical or 3 scientific matters without which the court cannot determine whether the Agency 4 considered all relevant factors. Asarco, 616 F.2d at 1160. The Public Charge Rule and 5 immigration law generally does not deal with a highly technical area such that policy 6 manuals are needed to inform nonexpert judges. While there may be extenuating 7 circumstances where non-technical background material is proper to add to the 8 administrative record, plaintiffs have not demonstrated by clear evidence that such 9 information is needed in this case. 10 iii. Materials Related to Development of Forms 11 In passing, plaintiffs request defendants to produce documents related to the 12 development of forms, specifically those related to Form I-944. Mtn. at 9 n.8. 13 Defendants take the position that they do not need to produce any further documents 14 relating to the forms because the complaint does not raise any claims concerning Agency 15 forms or the Paperwork Reduction Act. Further, it is unclear what additional documents 16 plaintiffs request. Opp. at 8. Plaintiffs respond that their general arguments regarding 17 the scope and impact of the Rule subsumes their arguments concerning any forms. 18 Reply at 9–10. They seek inclusion of records related to the development of Form I-944. 19 Id. at 10. 20 Plaintiffs first raised the argument concerning calculations of administrative burden 21 as part of their motion for preliminary injunction. Dkt. 17 at 27–29. They put forward this 22 argument under the broader thesis that the Rule is arbitrary and capricious. Id. at 19. 23 While plaintiffs did not list the administrative burden of forms as part of the complaint, 24 their arbitrary and capricious argument is broad enough to encompass arguments related 25 to these forms. 26 However, the only document that the plaintiffs identify with any particularity is the 27 supporting statement submitted by DHS to OMB to justify the collection of information for 1 Accordingly, the appropriate relief must be tailored to plaintiffs’ specific request. If such 2 document (or documents) constituting a supporting statement for Form I-944 exists, then 3 defendants must provide that as part of the record. 4 For the foregoing reasons, the court GRANTS plaintiffs’ motions with respect to 5 the policies that defendants do not oppose (and have agreed to provide) and the 6 supporting statement for Form I-944. The court DENIES plaintiffs’ motions with respect 7 to those policy manuals that they have requested beyond those policy manuals that 8 defendants have agreed to provide. 9 b. Studies and Data Regarding Inadmissibility Decisions 10 Next, plaintiffs request an article titled “Public Charge Provisions of Immigration 11 Law: A Brief Historical Background,” which was published by the Agency the same day 12 as the Rule. Cisneros Decl. ¶ 67, Ex. 29. Plaintiffs also ask for studies and data 13 regarding inadmissibility decisions on public charge grounds that were referenced in the 14 article. Mtn. at 7. In their opposition brief, defendants agree to provide the article and the 15 materials cited by the article. Opp. at 8. They take issue with providing any sources that 16 plaintiffs think were omitted from the article but should have been included. 17 After the hearing, the parties filed a joint status report in which they report that 18 defendants have provided the article, sources cited in the article, including excerpts of 19 books and immigration data cited in the article. Dkt. 157 at 2. Plaintiffs state that the 20 article cites immigration data, but defendants did not produce data for the years 1920–65, 21 1981–82, 1988, 1990, and 2018. Defendants respond that USCIS did not consider such 22 data with respect to the Rule or the article. Id. Plaintiffs make a similar request for 23 Department of State visa approval data for fiscal years 1920–2018. Id. at 3. 24 As previously noted, the administrative record “consists of all documents and 25 materials directly or indirectly considered by agency decision-makers and includes 26 evidence contrary to the agency’s position.” Thompson, 885 F.2d at 555 (emphasis and 27 citation omitted). The statistical data plaintiffs request not only was not cited in the Rule 1 reasoning is too attenuated to demonstrate by clear evidence that defendants indirectly 2 considered the requested statistical data when drafting the Rule. 3 Because defendants do not oppose this request and have already provided much 4 of the relevant material, the court GRANTS plaintiffs’ motions with respect to the article 5 and materials directly cited in the article; however, defendants are not required to provide 6 materials that are not directly cited in the article. Further, defendants are not required to 7 produce any book in its entirety unless such book is not publicly available. 8 c. Intra- and Inter-Agency Communications 9 Plaintiffs request various pre-decisional, deliberative materials including intra- and 10 inter-agency communications, White House communications or agency communications 11 with non-government third parties. Mtn. at 9. While plaintiffs have identified limited 12 material from FOIA requests (primarily relating to U.S. Department of Agriculture 13 comments submitted to the Agency pertaining to the Rule), they generally do not put 14 forward a specific list of documents for defendants to provide. Thus, they also request a 15 privilege log in order to determine which communications, if any, should be added to the 16 record. Id. at 11. For their part, defendants attempt to cut this line of argument off, ex 17 ante, by arguing that deliberative communications should not be considered in APA 18 cases. Opp. at 9. 19 i. Whether the Court Can Consider Any Deliberative 20 Material 21 Generally, judicial review under the APA is based on an agency’s stated reasons 22 and an “inquiry into mental processes of administrative decisionmakers is usually to be 23 avoided.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) 24 (citing United States v. Morgan, 313 U.S. 409, 422 (1941)), abrogated on other grounds 25 by Califano v. Sanders, 430 U.S. 99, 105 (1977). Yet, there is an inherent tension 26 between avoiding examination of a decisionmaker’s pre-decisional deliberative 27 communications and the court’s duty to “consider whether the decision was based on a 1 administrative record consists “of all documents and materials directly or indirectly 2 considered by agency decision-makers.” Thompson, 885 F.2d at 555–56. 3 Reflecting the tension between the deliberative process and reviewing the “whole 4 record,” district courts in the Ninth Circuit (as well as across the country) are divided over 5 whether deliberative communications should be permitted at any time to complete the 6 administrative record. There is a clear trend in district courts of the Northern District 7 permitting deliberative communications so long as plaintiffs rebut the presumption of 8 completeness. See, e.g., Ctr. for Env’tl Health v. Perdue, No. 18-cv-01763-RS, 2019 WL 9 6114513, at *2–3 (N.D. Cal. Nov. 18, 2019); Sierra Club v. Zinke, No. 17-cv-07187-WHO, 10 2018 WL 3126401, at *3 (N.D. Cal. June 26, 2018); Desert Survivors v. U.S. Dep’t of the 11 Interior, 231 F. Supp. 3d 368, 381 (N.D. Cal. 2017); Inst. for Fisheries Res. v. Burwell, 12 No. 16-CV-01574-VC, 2017 WL 89003, at *1 (N.D. Cal. Jan. 10, 2017). 13 Conversely, there are cases in other districts such as ASSE International, Inc. v. 14 Kerry, No. SACV 14-00534-CJC(JPRx), 2018 WL 3326687, at *2 (C.D. Cal. Jan. 3, 15 2018), where the court found that “privileged materials are not part of the administrative 16 record in the first instance.” See also Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 17 F. Supp. 2d 305, 312 (S.D.N.Y. 2012) (“[C]ourts have consistently recognized that, for the 18 purpose of judicial review of agency action, deliberative materials antecedent to the 19 agency’s decision fall outside the administrative record.”). There are two reasons cited 20 for this standard. First, a court’s APA review must be based on the agency’s stated 21 reasons for the agency action, absent a showing of bad faith or improper behavior. In re 22 Subpoena Duces Tecum Served on Office of Comptroller of Currency, 156 F.3d 1279, 23 1279 (D.C. Cir. 1998) (citations omitted). Because a reviewing court should limit its 24 review the agency’s stated behavior, then courts such as ASSE International interpret 25 that rule as precluding any review of deliberative materials. See also Nat’l Ass’n of Chain 26 Drug Stores v. U.S. Dep’t of Health & Human Servs., 631 F. Supp. 2d 23, 27 (D.D.C. 27 2009) (“[I]nternal deliberative materials are not part of the administrative record.”). 1 decisions’ by encouraging uninhibited and frank discussion of legal and policy matters.” 2 Tafas v. Dudas, 530 F. Supp. 2d 786, 794 (E.D. Va. 2008) (alteration in original) (quoting 3 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150–52 (1975)). 4 The Ninth Circuit has not directly addressed whether the federal government must 5 produce a privilege log or whether the government may exclude deliberative documents 6 from the administrative record altogether in an APA case. In re United States, 875 F.3d 7 1200, 1210 (9th Cir.), vacated by 138 S. Ct. 443, 445 (2017) (per curiam). The Ninth 8 Circuit indirectly addressed this issue in In re United States, which came before the court 9 on a writ of mandamus petition filed by the federal government. Id. at 1204. In the 10 mandamus context, the court reviewed for clear error a district court’s order requiring the 11 government to produce a privilege log with in camera review of deliberative material. Id. 12 at 1210. The In re United States court cited the several district court opinions requiring a 13 privilege log and in camera analysis of deliberative materials in APA cases. Id. (citing, 14 e.g., Ctr. for Food Safety v. Vilsack, No. 15-cv-01590, 2017 WL 1709318, at *5 (N.D. Cal. 15 May 3, 2017)). Because of the absence of controlling precedent and the deliberative 16 materials did not involve the mental processes of individual agency members, the court 17 found that the district court’s order was not clearly erroneous. Id. 18 The Supreme Court vacated the Ninth Circuit’s opinion in part because portions of 19 the district court’s order were overly broad. The Court noted that the district court did not 20 resolve threshold arguments going to whether the agency action was committed to 21 agency discretion or whether the INA deprived the court of jurisdiction. In re United 22 States, 138 S. Ct. at 445. The Court, therefore, admonished the district court not to 23 “compel the Government to disclose any document that the Government believes is 24 privileged without first providing the Government with the opportunity to argue the issue.” 25 Id. 26 Reading the Supreme Court and Ninth Circuit’s opinions together, a court may 27 order a privilege log and include non-privileged deliberative documents in the record but 1 Sierra Club, 2018 WL 3126401, at *3 (noting that the Supreme Court’s decision in In re 2 United States “require[es] the resolution of facial challenges before addressing the 3 administrative record”). Further, such relief is only appropriate after plaintiffs rebut the 4 presumption of completeness. S.F. Bay Conservation & Dev. Comm’n v. U.S. Army 5 Corps of Eng’rs, No. 16-cv-05420-RS, 2018 WL 3846002, at *7 (N.D. Cal. Aug. 13, 2018) 6 (“Decisions from this district have consistently held that parties that intend to withhold 7 documents based on the deliberative process privilege must produce a privilege log, at 8 least where the presumption of completeness has been rebutted . . . .”). In the absence 9 of controlling Supreme Court or Ninth Circuit law to the contrary, the court is inclined to 10 compel the inclusion extra-record pre-decisional deliberative documents, but only to the 11 extent plaintiffs are able to rebut the presumption of completeness.6 12 ii. Whether Plaintiffs Rebut the Presumption of 13 Completeness 14 The predicate step before applying the deliberative process privilege is for 15 plaintiffs to meet their burden to overcome the presumption of completeness. See 16 People of State of Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., No. C05-03508 EDL, 2006 17 WL 708914, at *2 (N.D. Cal. Mar. 16, 2006) (“Plaintiffs rebutted the presumption of 18 completeness with a strong showing that the Senate Report and the supporting 19 documents were at a minimum indirectly considered by the Forest Service in its decision- 20 making process for the [Rule at issue].”). 21 Sierra Club v. Zinke is helpful to understand what showing is required to 22 demonstrate clear evidence in this context. In Sierra Club, the plaintiffs sought to add to 23 the administrative record documents produced by the federal government in response to 24 the plaintiffs’ Freedom of Information Act (“FOIA”) requests. 2018 WL 3126401, at *4. 25 The court had previously determined that the plaintiffs challenged the rule on the ground 26

27 6 The court notes that defendants have not advanced a facial challenge to judicial review 1 that “its stated rationales [were] not legitimate and its justifications [were] inconsistent 2 with and not supported by the evidentiary record.” Id. (citation omitted). The court 3 examined each FOIA document to determine whether they pertained to the plaintiffs’ 4 basis to challenge the rule. The FOIA documents were relevant to whether the rule was 5 supported by good reasoning and, thus, rebutted the presumption of completeness. Id. 6 Here, as the result of a FOIA request, plaintiffs produce several email 7 conversations from officials at the U.S. Department of Agriculture (“USDA”) in response 8 to requests from the Office of Management and Budget (“OMB”) for comments to the 9 Rule. Cisneros Decl. ¶ 86. One email, dated April 12, 2018, indicates that USDA 10 officials sent OMB officials some comments concerning the Rule, which had been 11 requested by OMB officials as part of a broader request to federal agencies. Id. ¶ 87, Ex. 12 37. USDA’s comment was not included in the administrative record, nor were comments 13 from other agencies. See id., Ex. 1. If OMB requested comments from various agencies 14 for this particular Rule and those agencies then provided those comments, the Agency 15 either directly or indirectly considered these comments. Thus, it is reasonable to assume 16 that if USDA submitted comments, then other agencies did so as well. This situation is 17 similar to Sierra Club, where plaintiffs used the FOIA process to identify potential 18 documents not in the administrative record and the court determined that the documents 19 identified through FOIA rebutted the presumption of completeness. 20 iii. The Remedy to Which Plaintiffs Are Entitled 21 While the court has determined that plaintiffs have rebutted the presumption of 22 completeness, this is not license for a broad mandate to sweep in any and every 23 document, email, or memoranda that is conceivably related to the Rule. The court’s 24 finding is limited to the category of documents that plaintiffs were able to present clear 25 evidence to rebut the presumption, i.e., inter-agency communications providing 26 comments to DHS, and in DHS’s possession, concerning the Rule. The district court in 27 Golden Gate Salmon Association v. Ross, 2018 WL 3129849, at *4, aptly summarized 1 Plaintiffs assert that the presumption is “lost” when a plaintiff identifies wrongly omitted materials with specificity, and 2 provides reasonable grounds for the belief that those documents were considered by the agency. This is true as to 3 the wrongly omitted materials, but to the extent Plaintiffs suggest that rebutting the presumption as to one document (or 4 even an entire category of materials) changes how the Court must review other materials . . . the Court does not agree. 5 6 Other courts have taken a similar category-by-category or document-by-document 7 approach to reviewing whether documents rebut the presumption of completeness. See, 8 e.g., Sharks Sports & Entm’t LLC v. Fed. Transit Admin., 2020 WL 511998, at *3; 9 California v. Bureau of Land Mgmt., No. 18-cv-00521-HSG, 2019 WL 1455335, at*3 (N.D. 10 Cal. Apr. 2, 2019); Sierra Club, 2018 WL 3126401, at *4, Desert Survivors, 231 F. Supp. 11 3d at 372. Because plaintiffs have only rebutted the presumption of completeness with 12 respect to inter-agency communications received by DHS relating to the Rule, the 13 appropriate relief is to complete the record only with respect to those types of documents. 14 Defendants contend that the deliberative process privilege shields from public 15 disclosure confidential inter-agency memoranda on matters of law or policy. Opp. at 16. 16 The question before the court is not whether the deliberative process privilege applies, 17 but whether plaintiffs have rebutted the presumption of completeness with clear 18 evidence. The cases cited by defendants stand for the proposition that the deliberative 19 process privilege can be asserted by the government in the context of inter-agency 20 documents. In National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114, 1116 21 (9th Cir. 1988), the Ninth Circuit noted, in the context of a FOIA exemption review, that 22 the “‘deliberative process’ privilege . . . shields from public disclosure confidential inter- 23 agency memoranda on matters of law or policy.” However, the ultimate issue was 24 whether the district court erred in determining whether certain documents, after an in 25 camera review, should be released. Similarly, Hunton & Williams LLP v. U.S. 26 Environmental Protection Agency, 248 F. Supp. 3d 220, 247 (D.D.C. 2017), the district 27 court, also while reviewing a FOIA exemption request, noted that the deliberative process 1 any particular document are properly considered when the government produces the 2 document and claims the privilege. 3 Finally, the court notes that there are certain types of communications that are not 4 appropriate to consider, even if they fall within the category of documents that defendants 5 must produce. The Ninth Circuit has held that it would not be permissible for the court to 6 consider “the internal deliberative processes of the agency [or] the mental processes of 7 individual agency members.” Portland Audubon Soc., 984 F.2d at 1549; see also 8 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“[S]uch 9 inquiry into the mental processes of administrative decisionmakers is usually to be 10 avoided.” (citation omitted)). Thus, while it would be appropriate for defendants to 11 provide items such as studies, data, and official memoranda, it would not be appropriate 12 to include communications codifying the internal deliberative processes of individual 13 agency members. See In re United States, 875 F.3d at 1210 (“Where . . . an agency is 14 headed by a multi-member board, the deliberations among those members are 15 analogous to the internal mental processes of the sole head of an agency, and thus are 16 generally not within the scope of the administrative record.” (citing Portland Audubon, 984 17 F.2d at 1549)). Thus, defendants are not required to submit the deliberative 18 communications of individual agency members. This limiting instruction reduces the 19 burden on defendants while also recognizing plaintiffs have met their burden in a specific 20 category of documents. 21 For the foregoing reasons, the court GRANTS plaintiffs’ motions to complete the 22 record with regard to inter-agency communications submitted to DHS and under DHS’s 23 control, relating to the Rule, and not involving the mental processes of individual agency 24 members. 25 d. White House Communications 26 Defendants take issue with disclosing any communications related to the White 27 House. Opp. at 14. They contend that White House communications raise “special 1 office.” Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 385. Plaintiffs 2 reply that Cheney does not apply because they do not request discovery against the 3 President or Vice President. Reply at 11 n.12. 4 As an initial matter, it is not clear the extent to which White House communications 5 is an issue requiring the court’s adjudication. Plaintiffs have not directed the court to any 6 specific White House communications that rebut the presumption of completeness. It is 7 conceivable, however, that the court’s finding regarding inter-agency communications 8 could include communications from White House staff to DHS. For this narrow category 9 of documents, the court examines whether defendants must produce any White House 10 communications that meet the relief outlined above. 11 The parties cite Cheney v. U.S. District Court as the leading case on this question. 12 Cheney involved whether a court of appeals could exercise the writ of mandamus to 13 modify or dissolve discovery orders directing the Vice President and other senior 14 Executive Branch officials to produce information about a task force. 542 U.S. at 372. 15 The Supreme Court cited long-standing separation-of-powers considerations why such a 16 mandamus petition involving the President or Vice President would be treated differently 17 than other individuals. See id. at 381–82. The Court noted that the discovery order was 18 directed to the “Vice President and other senior Government officials who served on the 19 [panel] to give advice and make recommendations to the President.” Id. at 385. The 20 Court then stated that it has held on more than one occasion that, “[t]he high respect that 21 is owed to the office of the Chief Executive . . . is a matter that should inform the conduct 22 of the entire proceeding, including the timing and scope of discovery.” Id. (alterations in 23 original) (quoting Clinton v. Jones, 520 U.S. 681, 707 (1997)). 24 Thus, some deference in this area is certainly owed to the office of the Chief 25 Executive. Yet, several mitigating considerations are also relevant. First, Cheney’s 26 separation-of-power considerations were largely motivated by the inclusion of the Vice 27 President in the discovery order. Id. at 382 (“These separation-of-powers considerations 1 President or Vice President.”). That consideration is not present here. Additionally, 2 Cheney did not involve the APA’s requirements to provide a complete administrative 3 record and, though the opinion was vacated on other grounds, In re United States 4 interpreted Cheney as not “imposing a categorical bar against requiring DHS to either 5 include White House documents in a properly-defined administrative record or assert 6 privilege individually as to those documents.” 875 F.3d at 1209. The final consideration 7 is that the remedy identified by the court is not to order the White House to produce 8 documents; rather, it is to order DHS to produce any communications meeting the court’s 9 criteria that DHS has in its possession. This solution is in accord with the Ninth Circuit’s 10 dicta in In re United States finding no clear error for a district court to require DHS to 11 produce White House documents considered by the DHS Secretary. Id. For the 12 foregoing reasons, the court GRANTS plaintiffs’ motions with respect to any White House 13 communications in DHS’s possession and meeting the court’s criteria discussed above, 14 supra, section B.1.c. 15 e. Missing Comments from the Public 16 In their reply brief, plaintiffs discuss the parties’ inability to resolve a discrepancy 17 between the number of public comments submitted during the rulemaking process and 18 the number of comments produced in the administrative record. Reply at 6. The 19 government’s website for comments, Regulations.gov, states that over 260,000 20 comments were submitted, but the administrative record includes only 213,959 separate 21 documents. Id. Plaintiffs ask the court to order defendants to provide accurate 22 accounting of the discrepancy. Defendants state in their opposition brief; “[t]he parties 23 are continuing to confer about public comments included in the administrative record to 24 ensure that all 266,077 public comments are included.” Opp. at 3 n.2. At the hearing, 25 defendants acknowledged the requirement to account for all comments and explained 26 that multiple comments may be included in one document. 27 Because defendants do not oppose this request, the court GRANTS plaintiffs’ 1 discrepancies between the comments submitted on the government’s website and those 2 provided in the administrative record. 3 2. Discovery on Constitutional Claims 4 Plaintiffs request discovery on their constitutional claims. They contend that 5 constitutional claims are reviewed independently of APA claims and, therefore, some civil 6 discovery is appropriate. Mtn. at 15. Defendants argue that constitutional claims are 7 subject to the terms and limitations of the APA and plaintiffs are entitled to nothing more 8 than the administrative record. Opp. at 16. 9 a. Whether the APA Governs Plaintiffs’ Constitutional Claims 10 In addressing whether the APA governs plaintiffs’ discovery request, the court 11 considers two predicate questions. First, may plaintiffs bring an equitable cause of action 12 for violation of the Constitution against any agency action? Second, if they have a cause 13 of action for a constitutional claim, is that claim necessarily governed by the APA? The 14 Ninth Circuit’s opinion in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), is controlling 15 on both questions. Sierra Club dealt with a challenge to the Department of Defense’s 16 use of funds that the President repurposed by proclamation to construct a border wall on 17 the southern border of the United States. Id. at 677–83. The plaintiffs brought both a 18 constitutional claim, alleging a violation of the Appropriations Clause, and an APA claim. 19 The federal government argued that the plaintiffs did not have a cause of action for either 20 claim. The court examined whether the plaintiffs could bring “an equitable action to 21 enjoin unconstitutional official conduct, or under the judicial review provisions of the . . . 22 APA, as a challenge to a final agency decision that is alleged to violate the Constitution, 23 or both.” Id. at 694 (citation omitted). 24 First, the court determined whether the plaintiffs could assert an equitable cause of 25 action against federal officers for violations of the Appropriations Clause. Beginning with 26 the constitutional claim, the court recognized that “‘federal courts may in some 27 circumstances grant injunctive relief against’ federal officials violating federal law.” Id. at 1 However, the court noted that Congress may revoke a federal court’s ability to enjoin 2 federal officials where a statutory provision expressly provides a method of enforcing a 3 substantive right or lacked a judicially administrable standard. Id. (citing Armstrong, 575 4 U.S. at 328). Barring clear and convincing evidence of congressional intent, the judicial 5 review of administrative action is the rule. See City of Chicago v. Int’l Coll. of Surgeons, 6 522 U.S. 156, 183 (1997) (Ginsburg, J., dissenting) (citing Califano v. Sanders, 430 U.S. 7 99, 106–06 (1977)). In Sierra Club, the court applied this rule to determine that Congress 8 had not intended to foreclose equitable relief for violations of the Appropriations Clause. 9 929 F.3d at 697. 10 Second, the court reviewed whether the plaintiffs had an APA cause of action, 11 stating that 5 U.S.C. § 706(2)(B) permits a federal court to “hold unlawful and set aside 12 agency action . . . found to be . . . contrary to constitutional right, power, privilege, or 13 immunity. Id. at 698. The court held that the plaintiffs could assert a cause of action 14 under the APA so long as Congress had not limited review through other statutes or 15 committed the administrative decision to agency discretion. Id. (citing 5 U.S.C. 16 §§ 701(a), 704, 706; and Bennett v. Spear, 520 U.S. 154, 175 (1997)). Neither applied to 17 the Sierra Club plaintiffs and they could bring a challenge under 5 U.S.C. § 706(2)(C). 18 Third, the Sierra Club court then dealt with the issue whether “the availability of an 19 APA cause of action precludes Plaintiffs’ equitable claim.” Id. at 699. The court noted 20 that there is a basic presumption that APA provides for judicial review of agency action, 21 but “this does not mean the APA forecloses other causes of action.” Id. (citing 22 Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018)). In Navajo 23 Nation, 876 F.3d at 1170 (citation omitted), the Ninth Circuit explained that “a court is 24 foreclosed by [APA section] 704 from entertaining claims brought under the APA seeking 25 review of non-final agency action (and not otherwise permitted by law),” but “no such 26 limitation applies to other types of claims (like constitutional claims . . . ).’” In 27 Presbyterian Church v. United States, allowed constitutional claims to proceed without 1 699 (citing Presbyterian Church, 870 F.2d 518 (9th Cir. 1989)). Considering these two 2 cases together, Sierra Club held that Navajo Nation and Presbyterian Church “clearly 3 contemplate that claims challenging agency actions—particularly constitutional claims— 4 may exist wholly apart from the APA.” Id. One other district court in this circuit has cited 5 Sierra Club’s holding and then concluded that review of the plaintiffs’ “constitutional 6 claims, independently of their APA claims, is appropriate.” Al Otro Lado, Inc. v. 7 McAleenan, 394 F. Supp. 3d 1168, 1217 (S.D. Cal. 2019). 8 Applying Sierra Club here, to determine whether plaintiffs have a cause of action, 9 the court examines whether Congress intended to displace an equitable constitutional 10 claim against an agency action. Plaintiffs bring causes of action for violations of the Due 11 Process Clause of the Fifth Amendment, which the Supreme Court has interpreted to 12 prohibit the federal government from denying equal protection of the laws. Bolling v. 13 Sharpe, 347 U.S. 497, 500 (1954). In Davis v. Passman, the Supreme Court explained 14 that

15 “it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights 16 safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the State 17 to do.” Indeed, this Court has already settled that a cause of action may be implied directly under the equal protection 18 component of the Due Process Clause of the Fifth Amendment in favor of those who seek to enforce this constitutional right. 19 20 442 U.S. 228, 242 (1979) (citations omitted). Thus, an equitable cause of action exists 21 for equal protection violations of the Fifth Amendment’s Due Process Clause. 22 This final agency action is not committed to DHS’s discretion and plaintiffs may 23 also bring a cause of action under the APA against agency actions that are contrary to 24 constitutional right, power, privilege, or immunity. 5 U.S.C. § 706(2)(C). Because 25 plaintiffs may bring either an equitable cause of action or an APA claim, Sierra Club’s 26 holding controls whether the cause of action is necessarily governed by the APA. 27 Plaintiffs’ claim “may exist wholly apart from the APA.” 929 F.3d at 699. It follows, 1 the APA’s administrative record requirement does not govern the availability of discovery. 2 b. District Courts Decline to Draw a Bright Line Rule 3 Defendants cite several cases for the proposition that courts routinely reject 4 attempts by plaintiffs to obtain discovery for constitutional claims against the government. 5 In reality, district courts have struggled to coalesce around a categorical rule and instead 6 apply a fact-specific inquiry to reach outcomes that have rejected discovery for 7 constitutional claims in some instances and permitted discovery in others. Further, the 8 cases cited by defendants presumed that the APA governed and did not have the benefit 9 of controlling circuit law on the issue of whether a constitutional claim may be brought 10 independent of the APA. 11 There are few appellate cases discussing this issue. In Harkness v. Secretary of 12 Navy, 858 F.3d 437, 451 & n.9 (6th Cir. 2017), the Sixth Circuit rejected an argument that 13 discovery was necessary because constitutional issues could not be decided on the 14 administrative record for two reasons. First, the court noted that 5 U.S.C. § 706(2)(B) 15 permits review of constitutional claims under the APA using the administrative record. 16 Second, the plaintiff’s Establishment Clause claim was not a standalone claim because 17 10 U.S.C. § 14502 provided a particular mechanism to challenge constitutional error in 18 promotion boards. Id. at 446 n.6. Harkness does not require a different outcome than 19 Sierra Club; both cases examined whether the plaintiff(s) could bring a standalone 20 constitutional claim. The statutory scheme in Harkness precluded an Establishment 21 Clause claim; the Appropriations Clause permitted a standalone challenge in Sierra Club. 22 Several district courts have determined that constitutional claims are governed by 23 the APA and, therefore, constitutional claims should be decided on the administrative 24 record without further discovery. See, e.g., Bellion Spirits, LLC v. United States, 335 F. 25 Supp. 3d 32, 43 (D.D.C. 2018); Chiayu Chang v. U.S. Citizenship & Immigration Servs., 26 254 F. Supp. 3d 160, 161 (D.D.C. 2017) (collecting cases). Those cases have noted the 27 lack of applicable circuit law. For example, in Northern Arapaho Tribe v. Ashe, 92 F. 1 court must limit its constitutional review of agency action to the administrative record is [a] 2 question that has not been definitively answered by the Tenth Circuit or the Supreme 3 Court.” 4 On the other hand, several courts recognize that discovery may be appropriate for 5 a constitutional claim involving agency action. Mayor & City Council of Baltimore v. 6 Trump, —F. Supp. 3d—, No. CV ELH-18-3636, 2019 WL 6970631, at *7 (D. Md. Dec. 19, 7 2019) (collecting cases); New York v. U.S. Dep’t of Commerce, 345 F. Supp. 3d 444, 8 451–52 (S.D.N.Y. 2018); Grill v. Quinn, No. 10-cv-0757 GEB GGH PS, 2013 WL 9 3146803, at *6 n.8 (E.D. Cal. June 18, 2013). As the district court in Baltimore pointed 10 out, cases permitting discovery on constitutional claims are in accord “with the 11 foundational tenet of constitutional adjudication that ‘where constitutional rights are in 12 issue,’ courts must ensure that ‘the controlling legal principles [are] applied to the actual 13 facts of the case.’” 2019 WL 6970631, at *7 (alteration in original) (quoting Pickering v. 14 Bd. of Ed. of Twp. of High Sch. Dist. 205, Will Cty., 391 U.S. 563, 578 n.2 (1968) 15 (Douglas, J., concurring)). 16 The broad spectrum of opinions demonstrates a tension and broad disagreement 17 in the reasoning and outcomes in these types of cases. This is exacerbated by the lack 18 of controlling authority and usually results in a case-by-case approach to discovery. Most 19 courts decline to draw a bright line or categorical rule and instead examine the particular 20 facts of the claims involved and the discovery requested. See, e.g., Almaklani v. Trump, 21 —F. Supp. 3d—, No. 18-CV-398 (NGG) (CLP), 2020 WL 1282920, at *7 (E.D.N.Y. Mar. 22 17, 2020) (agreeing “that there may be circumstances in which discovery to supplement 23 the record may be necessary,” but declining to permit “broad ranging discovery under 24 Rule 26”); Jiahao Kuang v. U.S. Dep’t of Def., No. 8-cv-03698-JST, 2019 WL 293379, at 25 *2 (N.D. Cal. Jan. 23, 2019) (“[T]he welter of cases underlines the need for a flexible 26 approach, tailored to the facts and claims of the case.”); Bellion Spirits, 335 F. Supp. 3d 27 at 43 (“Given the dearth of caselaw on point in this circuit, the Court declines to adopt any 1 sensible and appropriately focuses on the facts and claims of individual cases. 2 c. Facts and Claims of Plaintiffs’ Complaints 3 Accordingly, the court turns to an analysis of the particular facts and claims at 4 issue here. A few district courts faced with both APA and constitutional claims 5 determined that the constitutional claims “fundamentally overlap” with the APA claims 6 and thus discovery was unnecessary. Ala.-Tombigbee Rivers Coal. v. Norton, No. CV 7 01-S-0194-S, 2002 WL 227032, at *3-6 (N.D. Ala. Jan. 29, 2002); see also Bellion Spirits, 8 335 F. Supp. 3d at 43-44; Chiayu Chang, 254 F. Supp. 3d at 162 (finding that the 9 “plaintiffs’ constitutional claims here are fundamentally similar to their APA claims” and 10 denying discovery). Alternatively, some courts have permitted some discovery when the 11 APA and constitutional claims diverge in some meaningful way. For example, in Manker 12 v. Spencer, No. 18-cv-372, 2019 WL 5846828, at *19 (D. Conn. Nov. 7, 2019), the district 13 court permitted discovery where the plaintiffs challenged the general course of conduct of 14 the Naval Discharge Review Board, but the agency sought to limit review to the 15 administrative record pertaining only to the plaintiffs. Thus, the court reasoned ““[w]here 16 a plaintiff challenges an agency’s general course of conduct rather than a discrete 17 adjudication, limited discovery . . . may be necessary where the administrative record 18 does not contain evidence of the challenged action.” Id. 19 In Vidal v. Duke, No. 16-cv-4756, 2017 WL 8773110, at *3 (E.D.N.Y. Oct. 17, 20 2017), the plaintiffs sought discovery in an action challenging the government’s decision 21 to end the Deferred Action for Childhood Arrivals (“DACA”) program and also challenging 22 collateral decisions affecting DACA beneficiaries on constitutional grounds. The 23 collateral decisions included a due process claim for failure to provide individualized 24 notice to DACA recipients who were eligible to renew their deferred action and equitable 25 estoppel claims against the government’s use of information from DACA applications for 26 immigration enforcement purposes. Id. at *2. The court noted that the constitutional 27 claim and equitable estoppel claims “do not challenge the decision to end the DACA 1 beneficiaries.” Id. The court then permitted discovery on the grounds that the 2 administrative record was limited to the decision to end the DACA program and “sheds 3 no light on why the Government allegedly made these collateral decisions.” Id. 4 This case falls somewhere in between cases like Vidal and Manker that permitted 5 discovery due to the divergence of APA and constitutional claims and cases such as 6 Alabama-Tombigbee Rivers Coalition and Chiayu Chang where the APA and 7 constitutional claims fundamentally overlapped. Reviewing plaintiffs’ complaints 8 demonstrates that they are alleging different factual allegations between the APA claims 9 and the constitutional claims. While plaintiffs’ APA and constitutional claims challenge 10 the same Rule and request the same relief (thus, this case is not squarely in line with 11 Vidal and Manker), the claims do not fundamentally overlap. 12 In the State plaintiffs’ complaint, paragraphs 111 through 126 discuss the State 13 plaintiffs’ claims that the Rule is contrary to law and paragraphs 127 through 141 discuss 14 the State plaintiffs’ claims that the Rule fails to offer adequate justification. Beginning 15 with paragraph 281, the State plaintiffs’ complaint7 sets forward allegations that the Rule 16 is motivated by racial and ethnic animus toward non-white, non-European immigrants. 17 These allegations include numerous statements and actions by the President that 18 purportedly demonstrate improper racial animus. See, e.g., Compl. ¶ 292. The 19 allegations also involve senior administration leadership, including Acting USCIS Director 20 Cuccinelli. Id. ¶ 299. The complaint also alleges that the White House, in particular 21 senior advisor Stephen Miller, improperly manipulated the agency process. Id. ¶¶ 302, 22 306. Similarly, the organization plaintiffs allege that “L. Francis Cissna was directed to 23 step down as director of USCIS, in part because Stephen Miller had been ‘agitating for 24 Mr. Cissna’s removal for months’ due to Mr. Miller’s stance that Mr. Cissna was ‘moving 25 too slowly in implementing’ the Regulation.” No. 19-cv-04980-PJH, Dkt. 1, ¶ 126 (citation 26 omitted). These allegations are different than plaintiffs’ APA allegations that the Agency 27 1 promulgated a rule that was contrary to law or the procedure followed by the Agency was 2 flawed. Ultimately, these allegations demonstrate that the administrative record is limited 3 to the Agency’s rulemaking process and sheds no light on actions taken by senior 4 administration officials. 5 Defendants, relying on Trump v. Hawaii, 138 S. Ct. 2392 (2018), also contend that 6 the court should apply highly deferential constitutional standard of review and under a 7 rational basis standard, discovery is inappropriate. Opp. at 18–19. Plaintiffs, citing 8 Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 9 252 (1977), argue that the court should apply a more searching standard of review and 10 accompanying sensitive inquiry into circumstantial and direct evidence of potential 11 unconstitutional behavior. Mtn. at 13. It is entirely understandable why each party seeks 12 to establish a foothold regarding the appropriate constitutional standard of review in this 13 case. See Saget v. Trump, 375 F. Supp. 3d 280, 366–67 (E.D.N.Y. 2019) (discussing 14 applicability of Hawaii and Arlington Heights to Equal Protection claims against agency 15 action). Yet, the court declines to determine such a standard in the context of a motion to 16 compel where the parties have not fully briefed this issue. Cf. Baltimore, 2019 WL 17 6970631, at *9–12 (determining applicable standard of review and declining to permit 18 discovery based on rational basis review). Moreover, defendants have not cited any 19 controlling case that prohibits discovery even in cases governed by rational basis review. 20 The court does not foreclose the possibility that discovery may not be appropriate if 21 rational basis review applies to this case, but simply notes that it is premature to make 22 such a finding at this stage when the court has not addressed the applicable standard of 23 review. Accordingly, plaintiffs’ motions to take discovery on their constitutional claims is 24 GRANTED. 25 This brings the court to the appropriate remedy. Plaintiffs oppose a stay pending 26 defendants’ forthcoming motion to dismiss because they bring “a straightforward claim 27 that Defendants were motivated by racial animus when advancing the Rule.” Mtn. at 19. 1 forthcoming motion to dismiss that may be dispositive of the complaint. Opp. at 20. The 2 court agrees with defendants; permitting discovery prior to assessing viability of plaintiffs’ 3 claims and directly addressing the appropriate standard of review and the implications of 4 that standard would be premature. As noted by a different court, “even where plaintiffs 5 have asserted constitutional claims, ‘wide-ranging discovery is not blindly authorized at a 6 stage in which such an administrative record is being reviewed.’” Tafas, 530 F. Supp. 2d 7 at 802 (quoting P.R. Public Housing Admin. v. U.S. Dep’t of Housing & Urban Dev., 59 F. 8 Supp. 2d 310, 327 (D.P.R. 1999)). 9 CONCLUSION 10 For the foregoing reasons, the court GRANTS IN PART and DENIES IN PART 11 plaintiffs’ motions to complete the record and GRANTS plaintiffs’ motions to compel 12 discovery. However, the court STAYS discovery until resolution of defendants’ 13 forthcoming motion to dismiss. Should defendants choose not to file a motion to dismiss, 14 the parties may file an appropriate request to resolve the stay. 15 IT IS SO ORDERED. 16 Dated: April 1, 2020 17 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 18 United States District Judge

20 21 22 23 24 25 26 27