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

Background

Treez, Inc. and its employee, Ameya Pethe, sued under the Administrative Procedure Act, alleging that the defendants wrongfully denied Pethe’s H-1B visa petition. Treez had petitioned for H-1B status for Pethe, a software developer from India, to work as its Director of Development Operations while residing in Missouri. The defendants initially approved the petition in January 2022, but later denied an amended petition seeking to change Pethe’s employment location. The stated reason was that Pethe’s services would aid or abet activities related to the manufacture, cultivation, distribution, or possession of marijuana and therefore would constitute illegal employment.

Administrative-record dispute

In an Administrative Procedure Act case, the agency must produce the certified administrative record—the documents and materials directly or indirectly considered by the agency when it made its decision. The plaintiffs challenged the completeness of the defendants’ production.

The assigned magistrate judge ordered the defendants to search for and produce, as part of the administrative record:

- internal deliberative documents concerning the petitions and rule change at issue, or a detailed privilege log identifying any withheld materials; and - materials concerning past adjudications of similarly situated petitions and any departure from those decisions or from the defendants’ past policy.

The defendants objected under the standard governing objections to a magistrate judge’s ruling on a nondispositive matter. Under that standard, the district court may modify the ruling only if it is clearly erroneous or contrary to law.

Court’s analysis

The court rejected the defendants’ argument that the magistrate judge had ordered production of “extra-record documents.” The court explained that the order required the defendants to search for and produce documents as part of the administrative record, not to provide discovery of documents that might be considered under an exception for evidence outside the record. Because of that distinction, the plaintiffs did not need to establish an exception for extra-record evidence.

The court also rejected the argument that the magistrate judge failed to apply the presumption that a certified administrative record is regular and complete. The magistrate judge had acknowledged that presumption and had reasonably found that the plaintiffs rebutted it. The court cited the defendants’ acknowledged withholding of materials concerning internal deliberations without producing a privilege log, as well as the plaintiffs’ reasonable, non-speculative grounds for believing that materials concerning other petitions had been considered by the agency but omitted from the record.

The court further rejected the defendants’ argument that the plaintiffs needed “clear evidence” that the agency considered materials concerning past adjudications of similar petitions. The court found the magistrate judge’s explanation compelling and neither clearly erroneous nor contrary to law. It likewise rejected the defendants’ repeated contention that the plaintiffs had to satisfy an exception for extra-record evidence before obtaining materials properly belonging in the complete administrative record.

Disposition

The court overruled the defendants’ objection to the magistrate judge’s order. The opinion addressed the scope and completeness of the administrative record; it did not decide whether the denial of Pethe’s amended visa petition was lawful.