Pacito v. TrumpPacito v. Trump
1. INTRODUCTION
Defendants move for a protective order relieving them of any obligation to respond to Plaintiffs’ discovery requests, propounded on January 26, 2026. Dkt. No.
That premise sweeps too broadly. Even the decision Defendants lead with rejects bright-line rules in this area, explaining that “[m]ost courts decline to draw a bright line or categorical rule and instead examine the particular facts of the claims involved and the discovery requested.” California v. U.S. Dep‘t of Homeland Sec., 612 F. Supp. 3d 875, 896 (N.D. Cal. 2020). Plaintiffs bear the burden of showing that extra-record discovery is warranted, and they have carried it.
Having reviewed the motion, the response, the reply, the relevant record, and all supporting materials, the Court DENIES the motion.
2. DISCUSSION
A court may, for good cause, issue an order protecting a party “from annoyance, embarrassment, oppression, or undue burden or expense.”
2.1 Discovery of extra-record evidence is warranted in this matter under the “relevant factors” exception.
Courts reviewing agency action are generally limited to the administrative record. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985) (“The focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.“) (internal quotation marks omitted). But the Ninth Circuit has “crafted narrow exceptions to this general rule,” exceptions that “operate to identify and plug holes in the administrative record.” Lands Council v. Forester of Region One of the U.S. Forest Serv., 395 F.3d 1019, 1030 (9th Cir. 2005). District courts may consider extra-record evidence: “(1) if admission is necessary to determine ‘whether the agency has considered all relevant factors and has explained its decision,’ (2) if ‘the agency has relied on documents not in the record,’ (3) ‘when supplementing the record is necessary to explain technical terms or complex subject matter,’ or (4) ‘when plaintiffs make a showing of agency bad faith.‘” Id. (quoting Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)). “These exceptions are ‘narrowly construed’ and the party seeking to engage in extra-record discovery bears the burden of establishing that one or more such exception applies.
Plaintiffs contend they are entitled to discovery under the first exception—the “relevant factors” exception.2 Dkt. No. 193 at 9-11. The Ninth Circuit cautions district courts to only use extra-record evidence “to develop a background against which it can evaluate the integrity of the agency‘s analysis“—district courts are not authorized to “to judge the wisdom of the agency‘s action.” San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 993 (9th Cir. 2014).
Plaintiffs challenge Defendants’ implementation of Executive Order 14163 (the “Refugee Ban EO“), which suspends entry for all refugees under the United States Refugee Admissions Program (“USRAP“), except on a case-by-case basis. Dkt. No. 211 ¶ 1. They allege Defendants went beyond the EO by halting all refugee case processing rather than just decisions and admissions, and that the agencies
The presumption that a CAR is complete gives way when a party “identif[ies] the allegedly omitted materials with sufficient specificity and identif[ies] reasonable, non-speculative grounds for the belief that the documents were considered by the agency and not included in the record.” Oceana, Inc. v. Pritzker, No. 16-cv-06784-LHK (SVK), 2017 WL 2670733, at *2 (N.D. Cal. June 21, 2017) (citation modified). Plaintiffs point to two omissions. The DHS record runs 10 pages and holds two documents, one of them a one-page, undated email from a USCIS division chief telling staff to stop deciding refugee applications and advising that more information would follow. Dkt. Nos. 178-2 at 16; 193 at 11. The promised follow-up appears nowhere, and a record that announces its own sequel and then omits it is not complete. Records of the decision to cancel already-booked refugee travel before the EO took effect were likewise missing altogether until Plaintiffs objected. Dkt. Nos. 176 at 6; 183-2. That sequence supports a reasonable inference that more is missing. See Grill v. Quinn, No. CIV S-10-0757 GEB GGH PS, 2012 WL 174873, at *4 (E.D. Cal. Jan. 20, 2012). Defendants answer that the CARs and a declaration filed with their opposition to preliminary injunctive relief already show what the agencies considered. Dkt. Nos. 188 at 5; 194 at 6-7. But a declaration prepared for litigation is not a contemporaneous administrative finding, and Defendants identify nothing in the CARs addressing the ongoing implementation Plaintiffs ask about.
2.2 Plaintiffs are entitled to discovery on their non-APA claims.
Where a plaintiff‘s APA and constitutional claims “fundamentally overlap” district courts have found discovery unnecessary. California v. U.S. Dep‘t of Homeland Sec., 612 F. Supp. 3d 875, 897 (N.D. Cal. 2020) (collecting cases). But where “a constitutional claim . . . exists outside of the APA, then the APA‘s administrative record does not govern the availability of discovery.” Id. The scope of discovery is, therefore, dependent upon the “‘particular facts of the claims involved[,] and the discovery requested.‘” Olsen v. Becerra, No. 2:21-cv-00326-SMJ, 2022 WL 4596664, at *1 (E.D. Wash. Aug. 11, 2022) (quoting California, 612 F. Supp. 3d at 896).
Plaintiffs argue they are entitled to discovery on their claims that Defendants violated the Refugee Act and the Fifth Amendment‘s equal-protection guarantee by adopting policies that make all refugees except white Afrikaners and other non-Black South African minorities per se ineligible both for admission and for case-by-
Specifically, Plaintiffs argue that discovery about how Defendants are applying the case-by-case exception and implementing President Trump‘s 2026 refugee cap is absent from the certified administrative record. Dkt. No. 193 at 6-7. The same is true of “follow-to-join” refugees. The CARs do not show how many have been admitted since the EO issued, and that number bears on Plaintiffs’ claim that Defendants suspended a nondiscretionary statutory duty. Dkt. No. 211 ¶ 414. The Court agrees these documents are “relevant to any party‘s claim or defense and proportional to the needs of the case[.]”
Defendants argue that Plaintiffs’ Refugee Act and Fifth Amendment claims are questions of law, and thus, fact discovery is unnecessary. Dkt. No. 188 at 6. But whether the challenged policies were motivated by animus is a question of fact. The scope of the suspension is a question of fact too—Plaintiffs allege that USCIS halted
3. CONCLUSION
Accordingly, the Court DENIES Defendants’ motion for a protective order relieving them of any obligation to respond to Plaintiffs’ discovery requests, propounded on January 26, 2026.
Dated this 4th day of August, 2026.
Jamal N. Whitehead
United States District Judge