(Reuters) - On this Thanksgiving eve, we should all be grateful that we are not the Justice Department lawyers attempting to defend the U.S. Commerce Department’s decision to add a question about respondents’ citizenship to the upcoming U.S. census questionnaire.
Those lawyers were excoriated in a decision Tuesday that will set your hair on fire if you’re not careful. U.S. District Judge Jesse Furman of Manhattan, an ordinarily thoughtful and mild-mannered jurist, has just plain had it with the government, which he accused of repeatedly attempting “to halt the orderly progress of this litigation” most recently with tactics that “seem to cross” the line of sanctionable conduct.
“Unless burdening plaintiffs and the federal courts with make-work is a feature of defendants’ litigation strategy, as opposed to a bug, it is hard to see the point,” Judge Furman wrote. “To borrow from Camus, ‘One must imagine Sisyphus happy.’”
There’s so, so much more packed into this seven-page opinion, but I have to give you some context to make it understandable. As you probably recall, New York State, the ACLU and other states and immigrants’ rights groups sued the government to block the question, arguing that the government’s asserted rationale – to collect data for Voting Rights Act enforcement – is mere cover for the racial animus that actually motivated the government. Over the summer, the trial judge overseeing the case, U.S. District Judge Jesse Furman of Manhattan, found enough evidence of governmental bad faith to order the Trump administration to produce discovery beyond the administrative record, including a deposition of Commerce Secretary Wilbur Ross.
Furman’s discovery orders unleashed one of the most ferocious and unusual procedural battles I’ve ever seen. Facing a November bench trial, the Justice Department filed a barrage of motions before Judge Furman, the 2nd U.S. Circuit Court of Appeals and, eventually, the U.S. Supreme Court to curtail what the government considered an improper fishing expedition for evidence that shouldn’t be part of Judge Furman’s evaluation of the case. (The government contends the case should be decided only on the administrative record.) Since Aug. 31, the Justice Department has filed 12 – 12! – motions to stay the proceedings, even as the bench trial began this month.
The government found a somewhat receptive audience at the Supreme Court late last month, as I’ve written. The justices stayed Secretary Ross’ deposition. But they also declined to stay any other scheduled discovery beyond the administrative record, including a deposition of a high-ranking DOJ official. After the Supreme Court’s stay order, the Justice Department urged Judge Furman (and the 2nd Circuit) to halt the trial, citing a dissenting opinion in which Justices Neil Gorsuch and Clarence Thomas said the government can still seek a review of the merits of the trial judge’s discovery orders.
In no uncertain terms, Furman (and the 2nd Circuit) denied (2018 WL 5791968) the DOJ stay request on Nov. 5. The judge said, among other things, that the government would suffer no irreparable harm if the trial went forward and the extra-record discovery was later deemed inadmissible. He said he planned to differentiate in his findings of fact and conclusions of law between evidence from the administrative record and evidence from the additional discovery he had authorized.
The trial went forward this month. Judge Furman ordered post-trial briefs to be submitted today and final arguments to be presented next week.
But then the Supreme Court weighed in again. On Nov. 16, the justices said they would review Judge Furman’s discovery orders on the merits. As DOJ framed the question, the court agreed to answer “Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker — including by compelling the testimony of high-ranking Executive Branch officials — when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.”
With its grant of Supreme Court review in hand, the Justice Department went back to Judge Furman to ask him, again, to halt the case until the justices decide whether all of the discovery should be part of his deliberation. When Judge Furman asked New York State, the ACLU and the other plaintiffs to submit a response, the Justice Department turned to the 2nd Circuit, arguing that Judge Furman had implicitly denied the stay request by asking plaintiffs to respond.
Judge Furman’s opinion Tuesday, which denied DOJ’s Nov. 18 stay motion, left nothing to implication. He called the government’s motion its “latest and strangest effort” to stop the case, highlighting DOJ’s “puzzling, if not sanctionable” strategy of asking once again for a stay that was denied just two weeks ago by the 2nd Circuit and the Supreme Court. “Defendants’ motion makes so little sense, even on its own terms, that it is hard to understand as anything but an attempt to avoid a timely decision on the merits altogether,” the judge wrote.
Even worse, he said, was the government’s new stay request at the 2nd Circuit, which came while its motion before him was pending. “If defendants’ motion in this court comes close to the sanctionable line, that filing would sure seem to cross it,” Judge Furman wrote. “Unsurprisingly, the Court of Appeals did not countenance defendants’ extraordinary lack of respect for the ordinary incidents of due process and regular procedure. Earlier this afternoon, that court summarily denied defendants’ motion as ‘premature.’”
The trial judge’s core point is that the Supreme Court knew the procedural posture of the census citizenship case when it refused to stay all extra-record discovery in October. If the court had wanted to stop the trial, Judge Furman said, it could have acted then. Indeed, when the justices agreed to hear the merits of the government’s discovery arguments, they knew the trial before Judge Furman was almost concluded. Presumably, the judge said, the justices expect that he will have entered a final judgment by the time they hear the case.
And his final judgment, Furman said, could well make the Supreme Court’s job easier. “The Supreme Court may be able to avoid deciding a thorny legal question altogether (if, for instance, the court enters judgment in favor of defendants or enters judgment in favor of plaintiffs without relying on evidence outside the administrative record), or would be able to decide that question and the merits together.”
DOJ didn’t even try to argue that it would be irreparably harmed if Furman entered a final judgment, the judge said, because such an argument would be “laughable.” And the judge called the government’s suggestion that Judge Furman’s judgment based on the administrative record might be tainted by his knowledge of extra-record discovery an “arguable insult to the Court’s intelligence.”
Ultimately, Judge Furman said the “most galling” part of the Justice Department’s stay motion was its argument that the government doesn’t want to waste the judiciary’s time. “It is plainly more efficient for this court to rule expeditiously, while the evidence from trial … is fresh,” he wrote. “It is also more efficient for this court to create a comprehensive record that would enable a single round of higher-court review than to tee up a second round of review with almost no time remaining on the clock. And beyond that, if defendants were truly interested in conserving judicial resources, they could have avoided burdening this court, the 2nd Circuit and the Supreme Court with twelve stay applications over the last eleven weeks that, with one narrow exception, have been repeatedly rejected as meritless.”
“Enough,” Judge Furman said, “is enough.”
The Justice Department declined to comment in response to a detailed enquiry about Judge Furman’s opinion.
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