United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.
in the above-captioned cases challenge the rescission of the
Deferred Action for Childhood Arrivals ("DACA")
program, as well as other actions that Defendants are alleged
to have taken in connection with the rescission of that
program. Defendants have moved to dismiss these cases for
lack of subject-matter jurisdiction and for failure to state
a claim. (See Defs. Mot. to Dismiss (Dkt.
Defs. Mem. of Law in Supp. of Mot. to Dismiss ("Defs.
Mem.") (Dkt. 95-1).) For the reasons that follow, the
court GRANTS IN PART and DENIES IN PART Defendants'
motion to dismiss for lack of subject-matter jurisdiction and
RESERVES RULING on Defendants' motion to dismiss for
failure to state a claim.
court begins by providing some background on the DACA
program, the steps Defendants have taken to end it, and the
increasingly complicated procedural history of these cases.
DACA program originates in a mismatch between the number of
individuals unlawfully present in the United States and
DHS's ability to remove these individuals from the
country. As of 2014, for example, approximately 11.3 million
removable individuals were present in the United
States. (The Department of Homeland Security's
Authority to Prioritize Removal of Certain Aliens Unlawfully
Present in the United States and to Defer Removal of Others,
38 Op. O.L.C. at 1 (2014) ("OLC Op.") (Admin. R.
("AR") (Dkt. 77-1) at 4).) DHS has the resources to
remove only a small percentage of these
individuals-specifically, about 400, 000 per year, or less
than four percent of the total, as of 2014. (Id. at
1; DHS, 2015 Yearbook of Immigration Statistics tbl. 39
(2016) (listing 333, 341 removals and 129, 122
"returns" for the year 2015).) Because of the
"practical fact" that it cannot deport all these
individuals, the Executive Branch has significant discretion
to prioritize the removal of some and to deprioritize the
removal of others. See Arpaio v. Obama, 797 F.3d 11,
16 (D.C. Cir. 2015).
form of discretion the Secretary of Homeland Security
exercises is 'deferred action, ' which entails
temporarily postponing the removal of individuals unlawfully
present in the United States." Id.
"Deferred action, " sometimes referred to as
"nonpriority status, " is "in effect, an
informal administrative stay of deportation, "
Lennon v. INS, 527 F.2d 187, 191 n.7 (2d Cir. 1975),
by which immigration authorities decide not to initiate, or
decide to halt, removal proceedings "for humanitarian
reasons or simply for... convenience, " Reno v.
Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 484
(1999) ("AAADC"). Immigration authorities have used
deferred action and similar policies on numerous occasions
since at least the early 1960s. Arpaio, 797 F.3d at
16 (citing OLC Op. at 7-8, 12-13). Although deferred action
was initially "developed without express statutory
authorization, " AAADC, 525 U.S. at 484
(quoting 6 C. Gordon et al., Immigration Law and
Procedure § 72.03(2)(h) (1998)), it has since been
referenced in the Immigration and Nationality Act
("INA") and in DHS regulations, see 8 U.S.C. §
1154(a)(1)(D)(i)(II), (IV) (making certain individuals
"eligible for deferred action and work
authorization"); 8 C.F.R. § 274a.l2(c)(14)
(authorizing certain recipients of deferred action to apply
for work authorization).
DACA and PAPA
2012, the Obama Administration created the DACA program by
issuing a memorandum stating that DHS would consider
according deferred action to certain undocumented immigrants
who entered the United States as children. (Mem. from Janet
Napolitano, Sec'y of DHS, to David V. Aguilar, Acting
Comm'r, CBP, et al., Exercising Prosecutorial Discretion
with Respect to Individuals Who Came to the United States as
Children (June 15, 2012) (the "2012 DACA Memo") (AR
1).) The 2012 DACA Memo directed CBP, USCIS, and ICE to
consider exercising prosecutorial discretion with respect to
individuals without lawful immigration status who (1) were
under the age of sixteen when they entered the United States;
(2) had been continuously present in the United States for at
least the five years leading up to June 15, 2012; (3) were
currently in school, had graduated from high school or
obtained GEDs, or were honorably discharged veterans; (4) had
not been convicted of felonies, significant misdemeanors, or
multiple misdemeanors, and did not "otherwise pose a
threat to national security or public safety"; and (5)
were not above the age of thirty. (Id.) Individuals
who met these criteria, passed a background check, and were
granted relief "on a case by case basis" were
shielded from removal and eligible to apply for work
authorization, subject to renewal every two years.
(Id. at 2-3.) The 2012 DACA Memo made clear,
however, that it "confer[red] no substantive right,
immigration status or pathway to citizenship, " but only
"set forth policy for the exercise of discretion within
the framework of the existing law." (Id. at 3.)
Following the issuance of the 2012 DACA Memo, approximately
800, 000 individuals have been granted deferred action and
work authorization under the program. (Second Am. Compl.
("SAC") (Dkt. 60) ¶ 73; USCIS, Number of Form
I-821D, Consideration of Deferred Action for Childhood
Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and
Case Status, Fiscal Year 2012-2017 (June 30, 2017) (Am.
Compl. ("State Pls. Am. Compl."), Ex. 1 (No.
17-CV-5228, Dkt. 55-1)).)
2014, the Obama Administration announced a new deferred
action program for the parents of U.S. citizens and lawful
permanent residents, Deferred Action for Parents of Americans
and Lawful Permanent Residents ("DAPA"). (Mem. from
Jeh Charles Johnson, Sec'y of DHS, to Leon Rodriguez,
Dir., USCIS., et al, Exercising Prosecutorial Discretion with
Respect to Individuals Who Came to the United States as
Children and with Respect to Certain Individuals Who Are the
Parents of U.S. Citizens or Permanent Residents (Nov. 20,
2014) (the "2014 DAPA Memo") (AR 37).) The 2014
DAPA Memo also expanded the DACA program by (1) permitting
individuals born before June 15, 1981, to apply for deferred
action; (2) extending the term of the benefits obtained under
the DACA program from two to three years; and (3) adjusting
the date-of-entry requirement so that individuals who entered
the United States before January 1, 2010, could obtain
deferred action and work authorization. (Id. at
3-4.) The court refers to these changes to the DACA program
as the "DACA Expansion."
the issuance of the 2014 DAPA Memo, twenty-six states, led by
Texas, filed suit in the U.S. District Court for the Southern
District of Texas, claiming that the DAPA program violated
the Administrative Procedure Act ("APA"), 5 U.S.C.
§ 550 et seq., and the Take Care Clause of the U.S.
Constitution, U.S. Const, art. II, § 3. See Texas v.
United States, 86 F.Supp.3d 591, 598 (S.D. Tex. 2015).
On February 16, 2015, the district court concluded that those
states had standing to sue and were likely to succeed on the
merits of their procedural APA claim that the 2014 DAPA Memo
was invalid because it constituted a "substantive rule,
" not a "general statement of policy, " and
thus should have been promulgated through notice-and-comment
rulemaking. Id. at 671-72. The court issued a
nationwide injunction against the implementation of the DAPA
program, Id. at 677-78, and the DACA Expansion,
Id. at 678 n.111. The Fifth Circuit affirmed that
decision, finding that the plaintiff states were likely to
succeed both on their claim that the 2014 DAPA Memo should
have been made through notice-and-comment procedures and on
their claim that the memo was substantively contrary to the
INA. Texas v. United States, 809 F.3d 134, 178, 186
(5th Cir. 2015) (as revised). The Fifth Circuit declined to
reach the plaintiff states' Take Care Clause claim.
Id. at 146 n.3. The decision was affirmed by an
equally divided Supreme Court. See 136 S.Ct. 2271 (Mem.).
Executive Branch's immigration-enforcement priorities
shifted with the election of President Donald Trump. Shortly
after his Inauguration, President Trump issued an executive
order that cast doubt on the exemption of "classes or
categories of removable aliens from potential
enforcement." Exec. Order 13, 768, Enhancing Public
Safety in the Interior of the United States, 82 Fed. Reg.
8799 (Jan. 25, 2017). The following month, then-Secretary of
DHS John Kelly implemented that order by issuing a memorandum
rescinding "all existing conflicting directives,
memoranda, or field guidance regarding enforcement of our
immigration laws and priorities for removal, " except
for the DACA and DAPA programs, which he left in place. (Mem.
from John Kelly, Sec'y, DHS, to Kevin McAleenan, Acting
Comm'r, CBP, et al., Enforcement of the Immigration Laws
to Serve the National Interest at 2 (Feb. 20, 2017) (AR
230).) Four months later, Secretary Kelly issued another
memorandum, which rescinded the DAPA program and the DACA
Expansion based on "the preliminary injunction in this
matter, the ongoing litigation, the fact that DAPA never took
effect, and our new immigration enforcement priorities."
(Mem. from John F. Kelly, Sec'y, DHS, to Kevin K.
McAleenan, Acting Comm'r, CBP, et al., Rescission of
November 20, 2014, Memorandum Providing for Deferred Action
for Parents of Americans and Lawful Permanent Residents
("DAPA") at 3 (June 15, 2017) (AR 235).) That
memorandum did not, however, rescind the original DACA
program or revoke the three-year-long deferred action and
work authorization issued between the announcement of the
DACA Expansion and the Southern District of Texas's
issuance of a preliminary injunction against that program.
(Id. at 2 & n.3).
the rescission of the 2014 DAP A Memo, Texas Attorney General
Ken Paxton wrote on behalf of eleven states to Attorney
General Jeff Sessions to demand that the "Executive
Branch" rescind the 2012 DACA Memo. (Ltr. from Ken
Paxton, Att'y Gen. of Texas, to Hon. Jeff Sessions,
Att'y Gen. of the U.S. (June 29, 2017) at 2 (AR 239).)
Paxton warned that, if DHS did not act to end the DACA
program, the plaintiff states would amend their complaint in
Texas v. United States to challenge the DACA program
and the remaining work permits issued under the DACA
Expansion. (Id. at 2.)
Attorney General Sessions wrote to Acting DHS Secretary
Elaine Duke to "advise that [DHS] should rescind"
the 2012 DACA Memo. (Letter from Jefferson B. Sessions, III,
Att'y Gen. of the U.S., to Elaine C. Duke, Acting
Sec'y, DHS (the "Sessions Letter") (AR 251).)
The Attorney General opined that DACA was unconstitutional
and that the Texas plaintiffs would likely prevail
in their anticipated challenge to the program:
DACA was effectuated by the previous administration through
executive action, without proper statutory authority and with
no established end-date, after Congress' repeated
rejection of proposed legislation that would have
accomplished a similar result. Such an open-ended
circumvention of immigration laws was an unconstitutional
exercise of authority by the Executive Branch. The related
Deferred Action for Parents of Americans and Lawful Permanent
Residents (DAPA) policy was enjoined on a nationwide basis in
a decision affirmed by the Fifth Circuit on the basis of
multiple legal grounds and then by the Supreme Court by an
equally divided vote. Then-Secretary of Homeland Security
John Kelly rescinded the DAPA policy in June. Because the
DACA policy has the same legal and constitutional defects
that the courts recognized as to DAPA, it is likely that
potentially imminent litigation would yield similar results
with respect to DACA.
(Id. (citation omitted).)
September 5, 2017, Defendants rescinded the DACA
program. The Attorney General announced the
decision at a press conference, and Acting Secretary Duke
implemented the decision by issuing a memorandum (the
"DACA Rescission Memo") to her subordinates. (DOJ,
Press Release, Attorney General Sessions Delivers Remarks on
DACA (Sept. 5, 2017),
Mem. from Elaine C. Duke, Acting Sec'y, DHS, to James W.
McCament, Acting Dir., USCIS, et al., Rescission of the June
15, 2012 Memorandum Entitled "Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United
States as Children" (Sept. 5, 2017) (AR 252).) Duke
pointed to the rulings of the Fifth Circuit and the Supreme
Court in the Texas litigation, as well as to the
Attorney General's "legal determination" that
DACA was "'an open-ended circumvention of
immigration laws'" and "'an
unconstitutional exercise of authority'":
Taking into consideration the Supreme Court's and the
Fifth Circuit's rulings in the ongoing litigation, and
the September 4, 2017 letter from the Attorney General, it is
clear that the June 15, 2012[, ] DACA program should be
terminated. In the exercise of my authority in establishing
national immigration policies and priorities, except for the
purposes explicitly identified below, I hereby rescind the
June 15, 2012 memorandum.
(Id. at 3-4 (quoting Sessions Letter).)
than terminating the DACA program outright, the DACA
Rescission Memo provided for a phased "wind down"
of the program. First, DHS would consider initial
applications for deferred action and work authorization that
it had received as of September 5, 2017. (DACA Rescission
Memo at 4.) Second, DHS would "adjudicate-on an
individual, case by case basis" requests for renewal of
deferred action and work authorization "from current
beneficiaries whose benefits will expire between [September
5, 2017, ] and March 5, 2018 that have been accepted by [DHS]
as of October 5, 2017." (Id.) DHS would not
consider other applications for deferred action or work
authorization under the DACA program. (Id.) Existing
grants of deferred action and work authorization would remain
in effect "for the remaining duration of their validity
periods, " though DHS would retain the authority to
terminate or deny deferred action when it deemed appropriate.
(Id.) Under the DACA Rescission Memo, the benefits
granted as part of the DACA program will therefore expire
gradually over the next two years.
Prior to the DACA Rescission
first of the above-captioned cases, Batalla Vidal v.
Duke, No. 16-CV-4756 (E.D.N.Y.), predates the Trump
Administration's decision to rescind the DACA program. In
that case, Plaintiff Martin Batalla Vidal initially
challenged DHS's compliance with the nationwide
injunction issued by the Southern District of Texas in
Texas v. United States. Batalla Vidal applied for
deferred action and work authorization in November 2014 and,
in February 2015, was notified that he had received deferred
action and work authorization for the next three years under
the terms of the DACA Expansion. (Compl. (Dkt. 1) ¶ 32.)
On May 14, 2015, however, DHS revoked his three-year work
authorization, citing the Texas injunction, and
replaced it with a two-year permit. (Id.
¶¶ 34-36.) Batalla Vidal challenged that decision,
contending that the Texas plaintiffs lacked standing
to seek, and the Southern District of Texas lacked
jurisdiction to issue, a nationwide injunction. (Id.
¶¶ 43-47.) Batalla Vidal subsequently amended his
complaint to add the nonprofit organization MRNY as a
plaintiff and name then-Director of USCIS Leon Rodriguez as a
defendant. (Am. Compl. (Dkt. 29).) In November 2016, the
Batalla Vidal Plaintiffs moved with Defendants'
consent to stay briefing in the case "[d]ue to
uncertainty regarding the future of the [DACA] program."
(Pls. Nov. 21, 2016, Mot. to Stay (Dkt. 35); Apr. 4, 2017,
Joint Mot. to Stay (Dkt. 40).)
Following the DACA Rescission
Defendants' announcement of the decision to rescind the
DACA program, Plaintiffs brought these actions challenging
that decision and certain other actions that Defendants have
taken relating to that decision. On September 6, 2017,
fifteen states and the District of Columbia filed suit
challenging both the rescission of the DACA program and
DHS's alleged changes in its policy regarding the use of
DACA applicants' information for immigration-enforcement
purposes. (State Pls. Compl. (No. 17-CV-5228, Dkt. 1)
¶¶ 269-301.) The State Plaintiffs asserted claims
under the Due Process Clause of the Fifth Amendment to the
U.S. Constitution, the APA, and the Regulatory Flexibility
Act, 5 U.S.C. §§ 601-12 (the "RFA").
(Id.) Two weeks later, the Batalla Vidal
Plaintiffs again amended their complaint to assert certain
claims similar to those brought by the State Plaintiffs, as
well as a claim that Defendants violated the Due Process
Clause by failing to notify DACA recipients that they needed
to renew their deferred action and work authorization by
October 5, 2017. (SAC ¶¶ 160-66.) Finally, the
State Plaintiffs amended their complaint to add claims (1)
challenging the notice provided to DACA recipients of the
rescission of the DACA program; and (2) further challenging
the change in DHS's information-use policy. (State Pls.
Am. Compl. (No. 17-CV-5228, Dkt. 54) ¶¶ 246-52,
274-80.) Together, Plaintiffs now assert the following
Protection. Both sets of Plaintiffs allege that
the decision to rescind the DACA program violated the
equal-protection principles incorporated in the Due Process
Clause of the Fifth Amendment to the U.S. Constitution, see
Boiling v. Sharpe. 347 U.S. 497, 498-500 (1954),
because that decision was motivated by improper
considerations. (SAC ¶¶ 167-70; State Pls. Am.
Compl. ¶¶ 233-39.) The State Plaintiffs allege that
the DACA Rescission Memo "target[s] individuals for
discriminatory treatment, without lawful justification"
and that it was "motivated, at least in part, by a
discriminatory motive and/or a desire to harm a particular
group." (State Pls. Am. Compl. ¶¶ 235-36.) The
Batalla Vidal Plaintiffs allege that President
Trump, Attorney General Sessions, and Acting Secretary Duke
violated the Due Process Clause in deciding to rescind the
DACA program because that decision "targets Latinos and,
in particular, Mexicans, and will have a disparate impact on
these groups, " and "was substantially motivated by
animus toward Latinos and, in particular, Mexicans."
(SAC ¶¶ 169-70.)
Process-Individualized Notice. Both sets of
Plaintiffs also contend that Defendants violated the Fifth
Amendment's Due Process Clause by failing to provide DACA
recipients with adequate notice of the decision to rescind
the DACA program. (SAC ¶¶ 160-66; State Pls. Am.
Compl. ¶¶ 274-80.) In particular, the Batalla
Vidal Plaintiffs allege that, prior to the DACA
Rescission Memo, DHS advised DACA recipients to submit
applications to renew their deferred action and work
authorization "as soon as possible" and, in
particular, 120-150 days before expiration, to ensure that
those benefits did not expire before DHS could process the
renewal applications. (SAC ¶ 164.) Following the
issuance of the DACA Rescission Memo, Defendants did not send
individual revised notices to alert DACA recipients who were
eligible to renew their deferred action and work
authorization (i.e., individuals whose benefits
expired before March 5, 2018) that they only had until
October 5, 2017, to do so. (Id. ¶ 165.) The
State Plaintiffs allege that Defendants violated the Due
Process Clause of the Fifth Amendment by failing to provide
DACA recipients with "adequate notice" about
"the procedures and timeline for renewing their DACA
status, " "the general termination of the DACA
program after March 5, 2018, " or "their inability
to apply for renewal of their DACA status after March 5,
2018." (State Pls. Am. Compl.¶¶ 276-77.)
Process-Information-Use Policy. Both sets of
Plaintiffs assert that DHS impermissibly backtracked on its
representations that it would use information gleaned from
DACA applications for immigration-enforcement purposes only
in limited circumstances. (SAC ¶¶ 151, 153; State
Pls. Am. Compl. ¶¶ 240-45.) While, as discussed
below, the Batalla Vidal Plaintiffs fold this
challenge into their substantive APA claim, the State
Plaintiffs challenge this decision as "fundamentally
unfair, " in violation of the Due Process Clause of the
Fifth Amendment. (State Pls. Am. Compl. ¶ 243.)
Estoppel-Information-Use Policy. The State
Plaintiffs argue that the doctrine of equitable estoppel bars
DHS from changing its policy regarding the use of DACA
applicants' information. (Id. ¶¶
246-52.) The State Plaintiffs allege that Defendants, having
"made repeated affirmative statements about the
protections that would be given to the personal information
provided by DACA applicants" and "placed
affirmative restrictions on the use of such information for
purposes of immigration enforcement" (id. ¶ 248),
are now estopped from using that information for
immigration-enforcement purposes (id. ¶¶ 250-51).
The court refers to this claim, together with Plaintiffs'
constitutional information-use policy claims, as
Plaintiffs' "information-use policy claims."
and Capricious. Both sets of Plaintiffs
challenge the decision to end the DACA program under the APA
as substantively "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5
U.S.C. § 706(2)(A). (SAC ¶¶ 149-54; State Pls.
Am. Compl. ¶¶ 253-56.) The Batalla Vidal
Plaintiffs contend that Attorney General Sessions and Acting
Secretary Duke acted arbitrarily and capriciously by deciding
to end the DACA program and by changing DHS's policy
regarding the confidentiality of DACA applicants'
information because those decisions "(a) lack a rational
explanation for the change in policy on which persons had
reasonably relied, (b) are based on a legal error, and (c)
failed to consider all relevant factors." (SAC ¶
151.) The State Plaintiffs argue that the implementation of
the DACA Rescission Memo and termination of the DACA program
"with minimal formal guidance" constituted
arbitrary, capricious, and unlawful action in violation of
Section 706 of the APA. (State Pls. Am. Compl. ¶
254-55.) The court refers to these claims together as
Plaintiffs' "substantive APA claims."
and Comment. Both sets of Plaintiffs also
contend that DHS's implementation of the DACA Rescission
Memo constitutes a substantive or legislative
"rule" for purposes of the APA, and thus needed to
be made through notice-and-comment rulemaking procedures. See
5 U.S.C. § 553. (SAC ¶¶ 144-48; State Pls. Am.
Compl. ¶¶ 257-65.) In particular, the Batalla
Vidal Plaintiffs argue that the DACA Rescission Memo is
a substantive rule, "as it binds DHS to categorically
deny applications for deferred action to individuals who fit
the original DACA eligibility criteria." (SAC ¶
146.) The State Plaintiffs, on the other hand, argue that the
promulgation and implementation of the DACA Rescission Memo
"categorically and definitively changed the substantive
criteria by which individual DACA grantees work, live, attend
school, obtain credit, and travel in the United States,
" impacting those beneficiaries' "substantive
rights." (State Pls. Am. Compl. ¶ 261.) The court
refers to these claims together as Plaintiffs'
"procedural APA claims."
Finally, both sets of Plaintiffs assert claims under the RFA.
Plaintiffs claim that Defendants violated the RFA by issuing
the DACA Rescission Memo without conducting an analysis of
the rescission's impact on "small entities."
(SAC ¶¶ 155-59; State Pls. Am. Compl. ¶¶
266-73.) MRNY alleges that it is a "small
organization" that is directly affected by the DACA
Rescission Memo and thus has a cause of action under the RFA.
(SAC ¶ 156.) The State Plaintiffs assert that they and
their "small governmental jurisdictions, nonprofits, and
businesses, and their residents" are harmed by
Defendants' failure to conduct such a regulatory impact
analysis. (State Pls. Am. Compl. ¶ 273.) The court
refers to these claims as Plaintiffs "RFA claims."
following chart summarizes these claims:
Table: Claims Presented
Cause of Action
Batalla Vidal v. Duke
New York v. Trump
Termination of the DACA program
Due Process Clause
Fifth claim, ¶¶ 167-70
First claim, ¶¶ 233-39
Second claim, ¶¶ 149-54
Fourth claim, ¶¶ 253-56
First claim, ¶¶ 144-48
Fifth claim, ¶¶ 257-65
Third claim, ¶¶ 155-59 (MRNY only)
Sixth claim, ¶¶ 266-73
Notification of DACA recipients of (1) the
termination of the DACA program and (2) revised
Due Process Clause
Fourth claim, ¶¶ 160-66 (notice of
revised renewal deadlines only)
Seventh claim, ¶¶ 274-80
Changes to DHS policy regarding the use of DACA
applicants' information for
Due Process Clause
Second claim, 240-45
Second claim, 149-51, 153-54
Third claim, 246-52
District Court Proceedings
parties have vigorously litigated these actions before this
court. Although the full procedural history can be discerned
from the relevant dockets, the court provides the following
limited summary of the proceedings to date.
with the regular practice of courts in this district in civil
cases, discovery matters were referred to the magistrate
judge assigned to the case, Magistrate Judge James Orenstein,
to decide in the first instance. See 28 U.S.C. §
636(b)(1)(A); Local Civ. R. 72.2. After soliciting the views
of the parties as to whether discovery should proceed (Sept.
15, 2017, Order (Dkt. 58)), Judge Orenstein authorized
discovery to proceed over Defendants' objections (Tr. of
Sept. 26, 2017, Hr'g (Docket Number Pending)
26:21-27:22). Judge Orenstein then issued a case management
and scheduling order (the "Case Management Order"),
which confirmed the previously announced discovery schedule.
(Sept. 27, 2017, Order (Dkt. 67).) Of particular relevance to
these proceedings, the Case Management and Scheduling Order
required Defendants to produce, by October 6, 2017, an
administrative record as well as a privilege log describing
"every document considered within any component of the
executive branch as part of the process of determining the
policy and actions at issue in these actions that are not
being produced and as to which the defendants would assert a
claim of privilege, regardless of whether the defendants deem
such ... record to be part of the official administrative
record." (Id. ¶¶ II(c) (the
"Privilege Log Requirement").)
promptly challenged the Case Management Order. On September
29, 2017, Defendants filed a motion before this court
"seek[ing] relief from" the Privilege Log
Requirement, which, they argued, "raise[d] substantial
separation-of-powers concerns, " to the extent it could
be read as applying to White House communications, and
required Defendants to assert privilege with respect to
documents that were not properly included in the
administrative record. (Sept. 29, 2017, Defs. Mot. to Vacate
(Dkt. 69) ("Defs. Sept. 29 Mot.") at 2-5.)
Defendants also argued that it would be impossible to comply
with the Privilege Log Requirement within the deadline set by
the Case Management Order (id. at 5), and that the
court should consider threshold arguments for dismissal of
these cases before allowing discovery to proceed
(id. at 5-6). Defendants did not specifically argue
that discovery was inappropriate, although they
reincorporated arguments against discovery by reference to a
letter they had filed with Judge Orenstein a week earlier and
briefly outlined three "threshold dismissal
arguments." (Id. at 1, 5-6; see also
Defs. Sept. 22, 2017, Ltr. Regarding Discovery (Dkt. 65).)
court issued two orders in response to Defendants'
objections. The first order extended the deadline for
complying with the Privilege Log Requirement by two weeks, so
that the court could consider whether the as-yet-unproduced
administrative record was adequate and whether Defendants
retained the presumption that they had correctly compiled the
record. (Oct. 3, 2017, Order (Dkt. 72).) Defendants
subsequently asked the court to narrow the Privilege Log
Requirement or vacate it entirely. (Defs. Oct. 10, 2017,
Reply in Supp. of Mot. to Vacate (Dkt. 80) at 2.) At the same
time, Defendants also asked the court to stay discovery
pending resolution of Defendants' anticipated dispositive
motions, which Defendants averred would "raise arguments
that are strong, purely legal, and completely dispositive of
Plaintiffs' claims." (Id. at 4.) Defendants
did not, however, specifically identify what those arguments
were (instead cross-referencing their September 29 Motion and
string-citing to authority discussed below) or address any of
the factors that courts in this district consider in
analyzing whether a party has demonstrated "good
cause" to stay discovery. See Fed.R.Civ.P. 26(c);
Richards v. N. Shore Long Island Jewish Health Svs..
No. 10-CV-4544 (LDW) (ETB), 2011 WL 4407518, at *1 (E.D.N.Y.
Sept. 21, 2011).
court then issued its second order, which narrowed the scope
of the Privilege Log Requirement but denied Defendants'
request to stay discovery. (Oct. 17, 2017 Mem. & Order
(the "Oct. 17 M&O") (Dkt. 86).) With respect to
Defendants' arguments that discovery outside the
administrative record was inappropriate, the court noted that
Defendants had not identified any reason why its review of
Plaintiffs' information-use policy and notice claims
should be limited to an administrative record that only
purported to document the decision to rescind the DACA
program. (Id. at 3-5.) The court declined to vacate
the Privilege Log Requirement before Judge Orenstein decided
whether the administrative record was complete. (Oct. 17
M&O at 5-6.) The court agreed, however, that the
Privilege Log Requirement should be narrowed to exclude
materials other than DHS and DOJ communications.
(Id. at 7-9.) Finally, the court declined to exempt
DOJ from the Privilege Log Requirement, as Defendants had
failed to explain their apparent reversal in position
regarding whether Attorney General Sessions was responsible
for the decision to rescind the DACA program. (Id.
following evening, Defendants renewed their motion to stay
discovery, this time threatening to seek mandamus review if
the court did not address their objections by 2 p.m. the
following day. (Defs. Oct. 18, 2017, Mot. to Stay (Dkt. 87).)
The court ruled expeditiously on these requests. On October
19, 2017, Judge Orenstein issued an order granting
Plaintiffs' motion to compel Defendants to produce a
complete administrative record. (Oct. 19, 2017, Order
Granting Motion to Produce (Dkt. 89).) The same day, this
court issued another memorandum and order, granting in part
and denying in part Defendants' motion for a stay. (Oct.
19, 2017, Mem. & Order (the "Oct. 19 M&O")
at 9-11.) In light of Defendants' ongoing (and, this
time, factually substantiated) concerns about the burdens of
complying with the Privilege Log Requirement, the court
agreed to stay the Privilege Log Requirement except with
respect to documents directly considered by the Attorney
General, Acting Secretary Duke, and their subordinates who
directly advised them on ...