Najafi v. Pompeo

Background

The plaintiffs sued Michael R. Pompeo and other defendants, alleging that officials were improperly withholding or delaying decisions on case-by-case waivers under Presidential Proclamation 9645. The proclamation prohibits the entry of immigrants and certain nonimmigrants who are nationals of Iran, Libya, Somalia, Syria, and Yemen, while providing for case-by-case waivers.

The plaintiffs alleged that officials had unreasonably delayed waiver decisions and had required approval from consular managers, visa chiefs, and consular section chiefs even though, according to the plaintiffs, the proclamation did not authorize those requirements. They asserted claims under the Administrative Procedure Act and for deprivation of procedural due process.

The pending motion sought expedited discovery under Federal Rule of Civil Procedure 26(d). The plaintiffs proposed serving 25 interrogatories asking what information officials still needed to determine whether each plaintiff’s entry would pose a national-security or public-safety threat, and whether officials were using a new enhanced automated screening and vetting process for the plaintiffs’ waiver adjudications.

Legal Standard

Rule 26(d) generally bars discovery before the parties confer about the discovery process unless the rules, the parties, or a court order allow it. Courts may authorize early discovery when the requesting party shows good cause. Good cause may exist when the need for expedited discovery, considering the administration of justice, outweighs the burden or prejudice to the responding party.

The court considered factors including whether a preliminary injunction was pending, the breadth and purpose of the requests, the burden on the defendants, and how far the request preceded the usual discovery process.

Court’s Analysis

The defendants argued that the plaintiffs lacked a legally reviewable claim. They contended that the presidential proclamation could not be reviewed under the Administrative Procedure Act and that visa and waiver decisions involved agency discretion. The court rejected those arguments for purposes of the discovery motion. It explained that the case concerned implementation of the proclamation rather than its legality, and that the plaintiffs were challenging delayed implementation rather than particular waiver decisions that had already been issued.

The defendants also argued that the plaintiffs’ claim was implausible and that the delay was not unreasonable. The court treated those issues as factual questions that were not appropriate to decide at that stage. It therefore could not conclude that the plaintiffs lacked a legally cognizable claim.

The court found good cause for expedited discovery. A motion for a preliminary injunction was pending, although that fact alone was insufficient. The 25 interrogatories were limited to the information still needed for national-security or public-safety determinations and whether the automated screening system was being used. The court found that the reasons for any delay could be relevant to deciding whether the delay was reasonable. Although the defendants would face some burden in responding, the court concluded that the burden did not outweigh the plaintiffs’ need for the information. The court also found that the requests were narrower than the defendants characterized them because they did not seek the government’s processes, standards, or considerations.

Disposition

Judge Kandis Westmore granted the plaintiffs’ motion for expedited discovery. The defendants were ordered to provide the requested discovery within 14 days of the order. The opinion did not decide the ultimate merits of the plaintiffs’ Administrative Procedure Act or due-process claims.