612 F.Supp.3d 875
N.D. Cal.2020Background
- Plaintiffs (States and immigrant-service organizations) challenged DHS’s 2019 Public Charge Rule and moved to complete the administrative record and for discovery on constitutional (equal protection/due process) claims.
- The court previously issued a geographically limited preliminary injunction; that injunction and other district-court injunctions were subsequently stayed by appellate courts and the Supreme Court.
- Defendants produced an administrative record; plaintiffs contended it was incomplete and identified categories of missing materials: internal policy/guidance, a USCIS historical article and its data, inter-/intra‑agency and White House communications, and missing public comments.
- The court applied the APA “whole record” standard and the narrow exceptions permitting extra‑record materials (e.g., when the agency relied on documents not in the record, for necessary background, or for bad faith) and reviewed whether plaintiffs rebutted the presumption of completeness.
- Rulings on the record: court ordered inclusion of policy/guidance documents defendants agreed to provide and the Form I‑944 supporting statement (if it exists); denied broader requests for policy manuals not shown to have been relied upon; granted production of the USCIS article and cited sources (but not uncited data); ordered DHS to produce inter‑agency communications (and any White House communications in DHS’s possession) relating to the Rule except communications revealing individual decisionmakers’ mental processes; and required defendants to account for public comment discrepancies.
- Constitutional‑claim discovery: court held plaintiffs may pursue discovery on their constitutional claims (because such claims may lie outside the APA), but stayed discovery pending resolution of defendants’ forthcoming motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether internal USCIS policy manuals and guidance must be added to the administrative record | Policies were directly or indirectly considered and/or are necessary background to evaluate departures from prior policy | Manuals were not shown to be relied upon by decisionmakers and are improper background material | Denied as to requested manuals beyond those DHS agreed to provide; granted only for manuals defendants already agreed to add and for internal versions of those sections (with one exception) |
| Whether the USCIS article and underlying data must be included | Article and cited sources informed the Rule and should be in the record | DHS agreed to produce the article and cited sources but not uncited or unrelated data | Granted as to the article and materials directly cited by it; defendants need not produce materials not cited or full books if publicly available |
| Whether inter‑agency, intra‑agency, and White House communications must be produced (including privilege log) | Such communications (identified via FOIA) rebut completeness and show outside input considered by DHS | Many deliberative communications are privileged and outside the record; White House materials raise special separation‑of‑powers concerns | Plaintiffs rebutted completeness as to inter‑agency comments to DHS; court ordered DHS to produce such communications in its possession (including White House communications in DHS’s possession) but not documents revealing individual decisionmakers’ internal mental processes; government may assert privilege on produced documents where appropriate |
| Whether DHS must account for missing public comments in the administrative record | Regulations.gov shows more comments than the record; DHS must reconcile | DHS said it is reviewing and may have combined multiple comments into single documents | Granted—DHS must account for discrepancies and ensure all comments are included or explained |
| Whether plaintiffs may obtain discovery on constitutional claims (beyond the administrative record) | Constitutional claims may be litigated independent of the APA and may require discovery into motives and outside influences | Constitutional review should be limited to the administrative record under APA; discovery unnecessary | Court held plaintiffs may pursue discovery on constitutional claims (because such claims can exist outside the APA) but STAYED discovery pending resolution of defendants’ motion to dismiss |
Key Cases Cited
- Portland Audubon Society v. Endangered Species Comm., 984 F.2d 1534 (9th Cir.) (administrative record includes everything before the agency relevant to merits)
- Thompson v. U.S. Department of Labor, 885 F.2d 551 (9th Cir. 1989) (administrative record includes documents directly or indirectly considered, including contrary evidence)
- Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443 (9th Cir. 1996) (narrow exceptions permitting extra‑record materials)
- Inland Empire Public Lands Council v. Glickman, 88 F.3d 697 (9th Cir. 1996) (standards for extra‑record supplementation)
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (exceptions to record supplementation narrowly construed)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (judicial review should avoid probing decisionmakers’ mental processes while ensuring relevant factors were considered)
- In re United States, 875 F.3d 1200 (9th Cir.) (district court’s ordering of privilege log/in camera review in administrative‑record context not clearly erroneous)
- Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004) (special separation‑of‑powers considerations for discovery from senior Executive Branch officials)
- Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019) (constitutional claims can exist apart from APA review and equitable relief may be available)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (agency must adequately justify departure from prior policies)
- Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (framework for evaluating discriminatory intent/impact in equal protection challenges)