Two Orders From Brownsville: Motion for Stay Denied and Motion for Discovery Granted

April 7th, 2015

There has been a flurry of activity in Texas v. United States today. Judge Hanen issued two orders (here and here) which have the effect of denying the government’s motion for a stay, and granting limited discovery.

First, with respect to the stay, Judge Hanen effectively reaffirmed his opinion granting the injunction.  Judge Hanen made clear that if one state has standing, all of the states have standing. This  isn’t controversial, but DOJ tried to wriggle out of this conclusion from Massachusetts v. EPA.

Thus, the Government has already fought this battle once in the Supreme Court and lost.

Following the dictates of the Supreme Court in Massachusetts, there is at least one plaintiff in this case that has established it will be directly damaged by the 2014 DHS Directive and that it has standing. This Court therefore has jurisdiction to hear the case. Consequently, the Court denies the Government’s requested relief based upon that ground.

Also, Judge Hanen stressed that other states may have standing, but due to the “emergent timeframe of this temporary injunction,” the other states have not yet made such a showing.

Next Judge Hanen focused on a point I made in several spots (here and here)–that work authorization is being used as an “incentive” to encourage people to sign up for DAPA.

The Government has acknowledged that its strategy with DAPA is to provide certain benefits as an incentive for individuals to apply for DAPA. [Hr’g Tr. 30, Mar. 19, 2015]. It also confirmed, through counsel, that offering these incentives is not an act of prosecutorial discretion: “I think an incentive for this pro – – the reason why deferred action in the department’s judgment works in a way that’s different than the prosecutorial discretion is it does provide an incentive for people to come out and identify themselves.” [Id. (emphasis added)].

Providing these benefits, though ostensibly authorized by statute, does not fall within the auspices of prosecutorial discretion. Rather, this is a lawmaking act unto itself totally apart from the discretion which the Secretary claims.

Judge Hanen elaborated that the work incentives are not necessary for the prioritization the government seeks to implement while the injunction is in place.

Importantly, however, as counsel for the Government admitted in open court, the Government does not need DAPA to effectuate this goal. [See, e.g., Hr’g Tr. 29‒31, Mar. 19, 2015]. The DHS could conduct the same investigation and provide such documentation designating certain illegal immigrants as low-priority law enforcement targets without additionally awarding legal status and the other benefits previously described in detail. (In fact, the DHS has always had the ability to do this. This Court’s injunction does not affect that ability.) Counsel for the Government explained that there might be a better turnout for this effort, however, if the DHS provided incentives. [Id. at 30]. While the wisdom and legality of incentivizing illegal immigrants to remain in the country illegally may or may not be debated at trial, what this revelation makes abundantly clear is that the Government has a workable and legal alternative.16 The States have no such alternative. When balancing the potential harms to each side (as required under the preliminary injunction analysis), the scales of justice greatly favor the States.

Second, Judge Hanen found that the United States mislead the court about granting three-year DACA prior to his order.

The Court finds that the Government’s multiple statements on this subject were indeed misleading, as detailed in the Order filed simultaneously with this Order. It also finds that the remedial measure taken by counsel for the Government through the filing of an “advisory” on March 3, 2015, was neither prompt nor fully candid.

However, the court declined (at this time at least) to issue sanctions or strike the pleading:

Despite this, a sanction as severe as striking the Government’s pleadings, while perhaps merited based upon the Government’s misconduct, would not at this juncture be in the interests of justice or in the best interest of this country. The issues contested in this case are of national importance, and the outcome will affect millions of individuals. The parties’ arguments should be decided on their relative merits according to the law, not clouded by outside allegations that may or may not bear on the ultimate issues in this lawsuit. Consequently, while this Court may impose some other sanction in response to the misrepresentations made to the Court, it will not strike the Government’s pleadings.

Of course, striking the pleading would mean Texas wins the case.

Hanen does rake the government over the coals, and accuses them of actively deceiving the court:

This Court expects all parties, including the Government of the United States, to act in a forthright manner and not hide behind deceptive representations and half-truths. That is why, whatever the motive for the Government’s actions in this matter, the Court is extremely troubled by the multiple representations made by the Government’s counsel―both in writing and orally―that no action would be taken pursuant to the 2014 DHS Directive until February 18, 2015.

And the Court relied on these misrepresentations:

Clearly, if a “clarification” on any ongoing actions taken by the DHS was ever necessary, which of course it was, this was the time. Silence here, and then later during the scheduling discussion, was misleading. Whether by ignorance, omission, purposeful misdirection, or because they were misled by their clients, the attorneys for the Government misrepresented the facts. The Court, relying on counsels’ representations, not only gave the Government extra time for its briefing, but it also took February 18, 2015, as the agreed-upon date by which to rule on the motion for a temporary injunction.

Even more troubling for the court was the “conduct after the fact”

The explanation by Defendants’ counsel for their conduct after the fact is even more troublesome for the Court. Counsel told the Court during its latest hearing that she was unaware that these 2014 DACA amendments were at issue until she read the Court’s February 16, 2015 Order of Temporary Injunction and Memorandum Opinion and Order (referred to jointly as the “February Opinion”). [Hr’g Tr. 16, Mar. 19, 2015]. Counsel then claimed that the Government took “prompt” remedial action. This assertion is belied by the facts. Even if one were to assume that counsel was unaware that the 2014 DACA amendments in their entirety were at issue until reading this Court’s February Opinion, the factual scenario still does not suggest candor on the part of the Government. … Despite having had almost a week to disclose the truth―or correct any omission, misunderstanding, confusion, or misrepresentation―the Government did not act promptly; instead it again did nothing. Surely, an advisory to this Court (or even to the Court of Appeals) could have been included in either document filed during this time period. Yet, counsel for the Government said nothing. …

Regardless, by their own admission, the Government’s lawyers knew about it at least as of February 17, 2015. Yet, they stood silent. Even worse, they urged this Court to rule before disclosing that the Government had already issued 108,081 three-year renewals under the 2014 DACA amendments despite their statements to the contrary.

Another week passed after the Motion to Stay was filed and still the Government stood mute. On February 24, 2015, this Court gave the States until 5:00 p.m. on March 3, 2015, to file a reply to the Motion to Stay. Still, the Government’s lawyers were silent. The States filed their response on March 3, 2015, at 4:46 p.m. CST. Finally, after waiting two weeks, and after the States had filed their reply, the Government lawyers filed their Advisory that same night at 6:57 p.m. CST. Thus, even under the most charitable interpretation of these circumstances, and based solely upon what counsel for the Government told the Court, the Government knew its representations had created “confusion,” but kept quiet about it for two weeks while simultaneously pressing this Court to rule on the merits of its motion. …

But the facts clearly show these statements to be disingenuous. The Government did anything but act “promptly” to clarify the Government-created “confusion.”

Citing Rule 3.3 of the ABA Model Rules, the court found the government acted unethically:

Fabrications, misstatements, half-truths, artful omissions, and the failure to correct misstatements may be acceptable, albeit lamentable, in other aspects of life; but in the courtroom, when an attorney knows that both the Court and the other side are relying on complete frankness, such conduct is unacceptable.

As a result, the court finds discovery is warranted. And the order is a doozie!

At a minimum, however, Defendants have created special circumstances that necessitate further investigation. The Court finds that good cause exists for the pursuit of tailored discovery.

The Court orders the attorneys for the Government to file, complete with courtesy copies to the Court and Plaintiffs, the following: (i) any and all drafts of the March 3, 2015 Advisory [Doc. No. 176], including all corresponding metadata and all other tangible items that indicate when each draft of the document was written and/or edited or revised; and (ii) a list of each person who knew about this Advisory, or about the DHS activity discussed therein, and each person who reviewed or approved its wording or filing, as well as the date and time when each person was apprised of this document and/or its contents, or of the DHS activity that is the subject matter thereof. No documents, electronic mails, texts, communications, or tangible items (including without limitation all computer records, hard drives, and servers) of any kind that deal with the Advisory or the subject matters discussed in the Advisory, whether or not owned by the Government, are to be destroyed or erased. While this Court does not foresee any privilege problems impacting the merits of this case, given that a ruling on the merits of the Government’s Motion to Stay is being issued simultaneously with this Order, any privileged material shall be filed in camera with a privilege log supplied to the Court and opposing counsel.

Oh, and by the way, the government was two weeks to do this…

The Government has until April 21, 2015, to comply with this Order. Following their review of the documents produced, the Plaintiff States shall file with the Court a list of any further discovery that they may deem necessary, with a brief summary of why that discovery is relevant. The States have until May 1, 2015, to do so. The Government shall have until May 8, 2015, to respond to the States’ request. The Court will then consider those requests and issue an appropriate order as promptly as its schedule allows.

Stay tuned.