State v. U.S. Dep't of Commerce

• Decision Date: 07 September 2018
• Docket Number: 18-CV-2921 (JMF),18-CV-5025 (JMF)
• Citation: 339 F.Supp.3d 144
• Parties: State of NEW YORK, et al., Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. New York Immigration Coalition, et al., Plaintiff, v. United States Department of Commerce, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

339 F.Supp.3d 144

State of NEW YORK, et al., Plaintiff,

v.UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.

New York Immigration Coalition, et al., Plaintiff,

v.United States Department of Commerce, et al., Defendants.

18-CV-2921 (JMF)

18-CV-5025 (JMF)

United States District Court, S.D. New York.

Signed September 7, 2018

Dale E. Ho, Ceridwen Bonnell Cherry, Davin Mckay Rosborough, Sarah E. Brannon, American Civil Liberties Union Foundation, John Arak Freedman, Caroline Kelly, Chase Raines, David P. Gersch, Daniel F. Jacobson, Jay Z. Leff, Arnold & Porter Kaye Scholer LLP, Washington, DC, Christopher T. Dunn, David Kautsky Hausman, Perry Grossman, New York Civil Liberties Union, New York, NY, Dylan Scot Yong, Arnold & Porter, District of Columbia, DC, Nancy Abudu, American Civil Liberties Union Foundation of Florida, Miami, FL, for Plaintiff.

Carol Federighi, Kate Bailey, Stephen Ehrlich, Garrett Joseph Coyle, Martin M. Tomlinson, U.S. Department of Justice, Washington, DC, for Defendant.

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

In these cases, familiarity with which is assumed, Plaintiffs bring claims under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. , and the Due Process Clause of the Fifth Amendment challenging the decision of Secretary of Commerce Wilbur L. Ross, Jr. to reinstate a question concerning citizenship status on the 2020 census questionnaire. See generally New York v. U.S. Dep't of Commerce , 315 F.Supp.3d 766 (S.D.N.Y. 2018). In an oral decision on July 3, 2018, the Court granted Plaintiffs' application for discovery beyond the administrative record, finding — among other things — that Plaintiffs had "made a strong preliminary or prima facie showing that they will find material beyond the Administrative Record indicative of bad faith." (Docket No. 205 ("July 3 Oral Arg. Tr."), at 85).¹ In the two succeeding months, the parties have conducted substantial discovery (see Docket No. 305, at 1-2 (summarizing the discovery to date) ), and have briefed (or are in the midst of briefing) a slew of discovery disputes, (see, e.g. , Docket Nos. 236, 237, 293, 299). One of those disputes concerned Plaintiffs' request to depose Acting Assistant Attorney General for Civil Rights John Gore ("AAG Gore"), who allegedly "ghostwrote" a letter from the Department of Justice ("DOJ") to Secretary Ross requesting the citizenship question that lies at the heart of the parties' disputes. (Docket No. 236, at 1; see also Docket No. 255). In an Order entered on August 17, 2018, the Court granted Plaintiffs' request. (Docket No. 261 ("AAG Gore Order") ). The deposition of Gore is apparently scheduled for September 12, 2018. (Docket No. 304 ("Pls.' Opp'n"), at 3).

On the eve of Labor Day weekend — Friday, August 31, 2018, at approximately 6 p.m. — Defendants filed a letter motion to stay discovery pending resolution of a "forthcoming petition for a writ of mandamus in the U.S. Court of Appeals for the Second Circuit." (Docket No. 292 ("Defs.' Ltr."), at 1). Defendants seek a stay of all discovery, or, at a minimum, "further discovery of the Department of Justice ... particularly the deposition of Acting Assistant Attorney General ...John Gore." ( Id. ). In their motion, Defendants also sought an "administrative stay while the Court considers this stay request." ( Id. ). On September 4, 2018, the Court summarily denied the latter request and set an expedited briefing schedule (later modified), with Plaintiffs' opposition due on September 6, 2018, and any reply due today at noon. (Docket Nos. 297, 306). Thereafter, on September 5, 2018, Defendants filed a Petition for a Writ of Mandamus and an Emergency Motion for Immediate Administrative Stay Pending Resolution of the Government's Petition for Writ of Mandamus with the Second Circuit. To the Court's knowledge, the Second Circuit has not yet acted on that application.

In determining whether to grant a stay pending mandamus, district courts must consider the following four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." U.S. S.E.C. v. Citigroup Glob. Mkts. Inc. , 673 F.3d 158, 162 (2d Cir. 2012) (quoting Hilton v. Braunskill , 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) ). The " ‘most critical’ factors" are whether "the stay movant has demonstrated (1) a strong showing of the likelihood of success and (2) that it will suffer irreparable harm." In re Revel AC, Inc. , 802 F.3d 558, 568 (3d Cir. 2015) (quoting Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) ); cf. Faiveley Transp. Malmo AB v. Wabtec Corp. , 559 F.3d 110, 118 (2d Cir. 2009) ("A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction." (internal quotation marks omitted) ). Critically, to satisfy the likelihood-of-success requirement here, Defendants must not only demonstrate that this Court erred in its decisions, but also that the Second Circuit is likely to grant mandamus. See, e.g., Emp'rs Ins. of Wausau v. News Corp. , No. 06-CV-1602 (SAS), 2008 WL 4560687, at *1 (S.D.N.Y. Oct. 6, 2008) (denying motion to stay pending mandamus where "plaintiffs have made no showing that their mandamus petition has a likely chance of success"). That is a very high burden. Indeed, to succeed in their mandamus petition, Defendants must overcome the "expressed reluctance" of the Second Circuit "to overturn discovery rulings" by demonstrating that the issue here "is of extraordinary significance or there is extreme need for reversal of the district court's mandate before the case goes to judgment." In re the City of New York , 607 F.3d 923, 939 (2d Cir. 2010). If Defendants meet those requirements, they must also show that their "right to issuance of the writ is clear and indisputable," Cheney v. U.S. Dist. Court for D.C. , 542 U.S. 367, 381, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal quotation marks omitted); see also In re the City of New York , 607 F.3d at 943 ("Because a writ of mandamus is a ‘drastic and extraordinary remedy reserved for really extraordinary causes,’ we issue the writ only in ‘exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion.’ " (quoting Cheney , 542 U.S. at 380, 124 S.Ct. 2576 ) ).

The Court turns, first, to Defendants' request for a stay of discovery altogether and, then, to their request for a stay of the AAG Gore deposition scheduled for September 12th.

STAY OF DISCOVERY ALTOGETHER

In light of the standards above, Defendants' motion to stay discovery altogether is frivolous. First, a court "must consider a plaintiff's delay in seeking relief when analyzing whether the plaintiff will suffer irreparable harm in the absence of relief." Ingber v. N.Y.C. Dep't of Educ. , No. 14-CV-3942 (JMF), 2014 WL 2575780, at *2 (S.D.N.Y. June 9, 2014) (citing Tom Doherty Assocs. v. Saban Entm't, Inc. , 60 F.3d 27, 39 (2d Cir. 1995) ). That is because "inexcusable delay in filing" a motion to stay "severely undermines the ... argument that absent a stay irreparable harm would result." Hirschfeld v. Bd. of Elections , 984 F.2d 35, 39 (2d Cir. 1993) ; see, e.g., S.E.C. v. WorldCom, Inc. , 452 F.Supp.2d 531, 531-32 (S.D.N.Y. 2006) (denying a stay on the ground that the defendant's delay in requesting it was "dilatory in the extreme but also patently prejudicial"); cf., e.g., Citibank, N.A. v. Citytrust , 756 F.2d 273, 276 (2d Cir. 1985) (holding that "significant delay in applying for injunctive relief ... alone may justify denial" of preliminary relief). Here, the Court authorized extra-record discovery on July 3, 2018, and set a tight discovery schedule in light of the parties' agreement that Plaintiffs' claims in these cases should be resolved quickly to allow Defendants to prepare for the 2020 census. (July 3 Oral Arg. Tr. 87-89, 91). Nevertheless, Defendants waited nearly two full months to seek a stay of the Court's ruling (and even then filed their motion at 6 p.m. on the eve of a three-day weekend) — during which time the parties conducted substantial discovery. That delay, in itself, belies Defendants' conclusory assertions of irreparable harm.

That is enough to defeat Defendants' claim of irreparable harm, but their claim — that, "[w]ithout a stay, Defendants will be required to expend significant time and resources to collect, review, and produce additional discovery materials," (Defs.' Ltr. 3) — does not withstand scrutiny for two independent reasons. First, "[t]he prospect of burdensome or expensive discovery alone is not sufficient to demonstrate ‘irreparable injury.’ " M.D. v. Perry , No. C-11-84 (JGJ), 2011 WL 7047039, at *2 (S.D. Tex. July 21, 2011) ; see, e.g., Renegotiation Bd. v. Bannercraft Clothing Co. , 415 U.S. 1, 24, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974) ("Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury."); see also, e.g., Linden v. X2 Biosystems, Inc. , No. C17-966 (RSM), 2018 WL 1603387, at *3 (W.D. Wash. Apr. 3, 2018) ; In re Cobalt Int'l Energy, Inc. Sec. Litig. , No. H-14-3428, 2017 WL 3620590, at *4 (S.D. Tex. Aug. 23, 2017) ; In re: BP P.L.C. Sec. Litig. , No. 4:10-CV-4214, 2016 WL 164109, at *2 (S.D. Tex. Jan. 14, 2016) ; DL v. District of Columbia , 6 F.Supp.3d 133, 135 (D.D.C. 2014). Second, and in any event, Secretary Ross's decision to add the citizenship question is the subject of parallel litigation in the Northern District of California and the District of Maryland. (See Docket Nos. 221, 224, 287). The judges presiding over those cases have also — and independently — allowed extra-record discovery, and to date Defendants have not sought a stay of either of those...