Emami v. Nielsen

Background

The order resolves multiple discovery disagreements in two related cases. The court’s earlier dismissal order held that the plaintiffs had adequately alleged a claim under the rule requiring an agency to follow its own regulations and procedures. The claim concerns whether the State Department followed its procedures for the visa-waiver program created under Presidential Proclamation 9645.

The allegations supporting the claim included that applicants were denied waivers without an interview or an opportunity to submit documents showing eligibility, even though State Department guidance stated that waiver eligibility should be disclosed at the visa interview. The plaintiffs also alleged that consular officers were not allowed to exercise case-by-case discretion and that individualized waiver decisions were replaced by a policy of blanket denials.

The court described the claim as fundamentally involving procedural fairness. It rejected the government’s position that the evidence should be strictly limited to an administrative record. The court reasoned that there may be no administrative record when the claim is that the government failed to follow its own rules, and noted that the government relied on a report created after the litigation began.

Discovery Rulings

The court stated that discovery is generally broad and should promote access to relevant facts, but also held that discovery must be proportional and fair in light of the claim as it then stood. The court ruled as follows for tranche one:

- Materials considered in adopting the State Department guidance required by Section 3(c) of the Proclamation were denied because they did not bear on whether the State Department followed the guidance it issued. - Materials from defendant agencies other than the State Department and from contractors involved in implementing the Proclamation were denied because the agency at issue was the Department of State. - Materials concerning the work and recommendations of subordinates involved in drafting, revising, or implementing the relevant guidance were denied because they did not bear on whether the State Department followed that guidance. - Materials referenced by record documents but not included in the record were granted, but only to the extent they concerned either the process for allowing applicants to submit documents and demonstrate waiver eligibility or the scope of individual consular officers’ discretion to grant or deny waivers. - The opinion text provided does not clearly state the ruling on the listed privilege-log issue; it refers to defendants’ privilege claims, but the disposition is incomplete in the supplied text. - “Accardi-related discovery” was denied because the category was too vague as described.

Tranche Two

The parties described tranche-two discovery as concerning a State Department report containing statistics on waiver processing between December 2017 and March 2019. The court deferred ruling on that discovery. It noted that the government intended to provide a further declaration about the report, followed possibly by a deposition under Federal Rule of Civil Procedure 30(b)(6) of the person most knowledgeable about the report. The parties could raise additional tranche-two disputes through the court’s discovery-dispute-letter procedure after the plaintiffs reviewed the declaration and, possibly, took the deposition.

Disposition

Judge James Donato entered the order on September 12, 2019. The order granted one discovery category in part as specified, denied several discovery categories, deferred ruling on tranche-two discovery, and did not resolve the underlying claim or the pending motions to dismiss.