United States District Court, N.D. California
ORDER RE DISCOVERY RE: DKT. NOS. 117, 138
DONATO UNITED STATES DISTRICT JUDGE
order resolves the multiple discovery disagreements between
the parties that are outlined in the joint discovery report.
Dkt. No. 117 (No. 18-1587).
prior dismissal order held that plaintiffs had adequately
alleged a claim under United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260 (1954), with respect to
whether the State Department has failed to abide by its own
rules and procedures for the waiver program that was created
pursuant to Presidential Proclamation 9645. Dkt. No. 74 (No.
18-1587) at 13-16. The allegations that were key to
sustaining the claim over the government's Rule 12(b)(6)
challenge included factual allegations that: (1) although the
State Department's guidance provided that waiver
eligibility should be disclosed at the visa interview,
applicants were denied waivers without an interview after the
Proclamation's effective date, or any opportunity to
submit documents and demonstrate eligibility for a waiver;
and (2) although the State Department's guidance stated
that individual consular officers would exercise discretion
to grant waivers on a case-by-case basis, officers were not
allowed to exercise that discretion and individualized waiver
decisions were usurped by a de facto policy of blanket
denials. Id. This latter allegation was supported by
the declaration of a former consular officer, among other
the main claim in this case, and while it may be formally
styled as an expression of the Accardi doctrine, it
is at heart a claim of procedural fairness that owes as much
to the Due Process Clause as to the Administrative Procedures
Act. See Jefferson v. Harris, 285 F.Supp.3d 173, 185
(D.D.C. 2018). It is fundamentally unfair, and antithetical
to our tradition as a republic of laws, for the government to
grant procedures and rights on paper that it fails to honor
the government's insistence that the evidence in this
case should be strictly cabined to an “administrative
record” is not well taken. As the government has
previously recognized, there is no “administrative
record” when the essence of the claim is that the
government has failed to act in accordance with its own rules
and regulations. The government's position is all the
more doubtful because it has tendered as the basis of a
summary judgment motion a new report that it says disproves
the claim that waivers have been consistently denied in
violation of the State Department's procedures.
See Dkt. No. 98 (No. 18-1587); Dkt. No. 120 (No.
18-7818). Even under the traditional notions of an
administrative record that the government seeks to invoke,
this would be an extra-record document. In effect, the
government seeks to rely on a document that it created after
this litigation started while insisting that plaintiffs on
their part have no right to go beyond the “record,
” whatever that might be in these circumstances. The
government has compounded the problem with its position by
suggesting that plaintiffs simply have to live with the
report on a no-questions-asked basis.
will not do. Pre-trial discovery is “ordinarily
accorded a broad and liberal treatment, ” and it is a
hallowed principle in the United States courts that
“wide access to relevant facts serves the integrity and
fairness of the judicial process by promoting the search for
the truth.” Shoen v. Shoen, 5 F.3d 1289, 1292
(9th Cir. 1993) (internal quotations omitted). The government
is not, of course, excepted from this principle.
same time, the Court cannot say that all of the discovery
plaintiffs seek is appropriate. Several of the proposed
discovery requests go beyond the Accardi claim as it
currently stands. It is possible the scope of the case might
be broadened after the resolution of the pending round of
motions to dismiss that are currently under submission, but
that issue will be saved for another day. The key inquiry is
what discovery is proportional and fair in light of the claim
at this time.
Court orders the following discovery on the categories listed
in the parties' joint report. Dkt. No. 117 (No. 18-1587).
1. Materials “directly or indirectly”
considered in adopting the guidance mandated by Section 3(c)
of the Proclamation, including FAM Section 302.14-10 and the
additional guidance materials provided to consular officers
responsible for visa adjudications under the
Materials “considered” in adopting guidance does
not bear on whether the State Department failed to follow the
guidance that was issued.
2. Materials from other defendant agencies besides
the Department of State and from contractors involved in
implementing the Proclamation
As the Court's prior order made clear, the agency at
issue here is the Department of State. Dkt. No. 74 (No.
18-1587) at 14.
3. Materials representing the work and
recommendations of subordinates involved in drafting,
revising, or implementing FAM Section 302.14-10 and the