PASADENA, Calif. (CN) – A Ninth Circuit judge suggested Tuesday that the federal government shouldn’t have to turn over every document considered in its decision to end a program that shields young immigrants from deportation.
Last month, U.S. District Judge William Alsup required the disclosure of all non-privileged documents reviewed by those who advised acting Homeland Security Secretary Elaine Duke on her decision to end the Deferred Action for Childhood Arrivals, or DACA, program, including her subordinates and employees of the White House and Justice Department.
“The district court said basically it has to include everything that any subordinate saw who gave any kind of advice, oral or written, to the acting secretary, and I think that is plainly wrong,” Circuit Judge Paul Watford said during a hearing Tuesday.
The disputed records were requested as discovery in five related lawsuits challenging the Trump administration’s decision to terminate the Obama-era DACA program on March 5, jeopardizing the future of 800,000 young immigrants nicknamed Dreamers.
The U.S. Justice Department challenged Alsup’s ruling in an Oct. 20 mandamus petition, arguing the judge “has permitted the plaintiffs to embark on an improper hunt” for records that are protected by attorney-client, deliberative process and executive privileges.
U.S. Justice Department attorney Hashim Mooppan said Alsup’s discovery ruling could set a dangerous precedent that would make it harder for federal agencies to candidly debate important policy issues.
“Their position is that any time the government makes a legal decision, everyone who advised the secretary has to submit all of the material they had that’s relevant, both in the agency and even in the White House,” Mooppan told a three-judge Ninth Circuit panel Tuesday. “That’s a severe intrusion and it would create grave deterrent on having any sort of written product, especially a written product that might disagree on legal questions.”
Those challenging the decision to end DACA include the University of California, city of San Jose, Santa Clara County, and the states of Maine, Minnesota, Maryland, and lead plaintiff California – home to more than 200,000 Dreamers, more than any other state.
On Tuesday, California Justice Department attorney Michael Mongan said all materials considered in an agency’s decision-making process must be part of the administrative record, not just those that support the agency’s proffered explanation.
The Trump administration says it ended the program due to the risk of litigation by certain states like Texas that have challenged the DACA program in court.
“A rational assessment of litigation risk has to consider not just perceived litigation threat but underlying costs to the government and economy of jettisoning this program,” Mongan said. “That type of information would have been relevant to the agency’s consideration of litigation risk, and those materials aren’t privileged.”
The federal government has also asked the Ninth Circuit to reverse part of Alsup’s Oct. 19 ruling that authorized depositions of up to 20 high-ranking officials, including the acting secretary of the Department of Homeland Security and former White House officials.
Circuit Judge Kim Wardlaw hinted in one question she agrees with the plaintiffs’ position that the issue of depositions is not yet ripe for appeal.
“Since there’s been no discovery orders issued by the district court, and certainly none are in front of us, how can we even address a writ of mandamus to those,” Wardlaw asked.
Mooppan replied that without strong evidence of a bad-faith motive by the acting secretary, the plaintiffs are not entitled to get more documents or depose high-ranking government officials.
The plaintiffs say the decision to terminate DACA was arbitrary and capricious in violation of the Administrative Procedure Act, and that it was done with an intent to discriminate against “disfavored classes.”
Circuit Judge Ronald Gould asked how the federal government’s position squares with the 1983 Supreme Court ruling in Motor Vehicle Manufacturers Association v. State Farm Insurance, which held there must be a “rational connection” between the facts and decision made by an agency.
Failing to consider a policy decision’s impacts on society could make the decision arbitrary and capricious, Gould said, articulating his interpretation of the plaintiffs’ argument.
“In a case like this, does that consideration apply?” Gould asked.
Mooppan replied the agency has provided a reasoned explanation, and that the court should not authorize plaintiffs to dig up a vast trove of documents and grill high-ranking officials without any evidence that the government acted in bad faith.
“We’re not saying every single document in the agency is deliberative,” Mooppan said. “What we’re saying is the record we based our decision on is what we provided. Everything else is either deliberative or not relevant.”
After about an hour of debate, the Ninth Circuit judges took the arguments under submission.