Treez, Inc. v. United States Department of Homeland Security

Background

Treez, Inc. and Ameya Pethe challenged the denial of an amended H-1B petition under the Administrative Procedure Act. Treez had petitioned for H-1B status for Pethe, a software developer from India, to work as Treez’s Director of Development Operations while residing in Missouri. The government initially approved the petition but later denied an amended petition changing the employment location, reasoning that the proposed services would aid or abet activities related to marijuana and therefore constituted illegal employment.

The plaintiffs alleged that the denial was arbitrary, capricious, beyond the agency’s authority, and based on a new legal standard. They also alleged that the agency failed to explain its departure from earlier H-1B decisions involving companies whose customers included businesses in the state-legal cannabis industry, and failed to follow notice-and-comment procedures for a new rule.

The Administrative Record

The government provided a certified administrative record but did not include internal deliberative materials or documents concerning other similarly situated petitioners. The plaintiffs moved to compel supplementation with those materials. The government argued that deliberative materials were not part of the administrative record and sought a protective order barring extra-record discovery.

The court explained that the administrative record generally includes all documents and materials directly or indirectly considered by agency decision-makers, including evidence contrary to the agency’s position. Although an agency’s proposed record is presumed complete, a plaintiff can overcome that presumption by identifying omitted materials with enough specificity and showing reasonable, non-speculative grounds to believe the agency considered them.

Ruling on Internal Materials

The court held that internal materials fall within the broad universe of materials potentially included in the administrative record. The government could withhold materials under the deliberative-process privilege—a qualified protection for advisory opinions, recommendations, and policy discussions—but it had to make a specific showing for each withheld document and follow the required procedures. A blanket assertion of privilege was insufficient.

The court therefore ordered the government to produce internal deliberative documents concerning the plaintiffs’ petitions and the alleged rule change, or provide a detailed privilege log identifying documents withheld on privilege grounds.

Ruling on Earlier Petitions

The court also concluded that the plaintiffs had identified reasonable, non-speculative grounds for seeking records concerning similar past H-1B petitions. Because the plaintiffs alleged that the agency departed from earlier decisions and applied a new substantive requirement, records about those earlier adjudications and the agency’s explanations for any departure were relevant to meaningful judicial review.

The court rejected the government’s argument that the plaintiffs had to identify particular missing documents before obtaining supplementation. It also rejected the argument that earlier petitions were irrelevant merely because the agency was not bound by its prior adjudications. Omitting those materials could leave the court with a materially incomplete account of the agency’s decision-making process.

Disposition

The court granted the plaintiffs’ motion to compel and denied the defendants’ cross-motion for a protective order. It ordered the defendants to search for and produce internal deliberative documents, or provide a detailed privilege log for withheld documents, and to produce materials concerning similar past petitions and departures from those decisions or prior policy. The order addressed the administrative record and discovery; it did not decide whether the H-1B denial violated the Administrative Procedure Act.