U.S. District Judge William Alsup of the Northern District of California. Credit: Jason Doiy/The Recorder

U.S. District Judge William Alsup, in an unusual move, told the U.S. Supreme Court this week that the U.S. Justice Department incorrectly implied he had ordered “unfettered discovery” in a dispute over documents related to the Trump administration’s termination of the Deferred Action for Childhood Arrivals program.

Alsup was responding to the Justice Department’s request that the justices put on hold one of his discovery orders in a pending case. Alsup told the high court that the department claimed he had called the challengers’ request for immediate discovery an “excellent idea.”

“In fact, early in the conference, the district court actually stated, ‘Conceivably that’s an excellent idea to take some discovery.’ At the end of the conference, the district court stressed that any discovery should be ‘limited, narrowly directed [and] reasonable,’ and that ‘both sides are subject to discovery,’” Alsup wrote.

Alsup also said the Justice Department in its request claimed that all “non-deliberative” DACA-related documents considered by the agency decisionmaker were included in the administrative record when, in fact, a total of 84 documents admittedly considered by the agency decisionmaker were withheld from the record based on the assertion of a “deliberative” privilege.

The judge concluded in his five-page statement that there was no “clear and indisputable” law that his order to make the record whole was in error.

In addition to its stay request, filed by U.S. Solicitor General Noel Francisco, the government also filed a petition for a writ of mandamus or certiorari.

The challengers include four states, Regents of the University of California, and San Jose, represented by California Deputy Solicitor General Michael Mongan. Theodore Boutrous of Gibson, Dunn & Crutcher is counsel of record to Santa Clara County and the Service Employees International Union Local 521.

The Trump administration terminated the DACA program on Sept. 5. Removals are slated to begin for most so-called Dreamers on March 5, 2018. The challengers contend the termination of the program was unlawful.

Alsup’s statement is posted below.

 

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