Re: Judge Kim McLane Wardlaw Makes Her Mark

by Ed Whelan

A quick follow-up to my post yesterday highlighting Ninth Circuit judge Kim McLane Wardlaw’s extraordinary record of being summarily reversed by the Supreme Court:

Wardlaw co-authored the majority opinion in this divided Ninth Circuit ruling last week. The district court had ordered the government to disclose all documents bearing on its rescission of the Deferred Action for Childhood Arrivals (“DACA”) policy, and the government asked the Ninth Circuit to block the district court’s order. Wardlaw’s majority opinion rejected the government’s request.

Notably, the dissent in the case was written by Obama appointee Paul J. Watford. Some excerpts from Watford’s dissent (some citations omitted):

The district court’s order violates two well-settled principles governing judicial review of agency action under the Administrative Procedure Act. The first is that a court ordinarily conducts its review “based on the record the agency presents to the reviewing court.” … The second principle is that documents reflecting an agency’s internal deliberative processes are ordinarily not part of the administrative record….

In my view, the district court exceeded the scope of its lawful authority to expand the administrative record. The order sweeps far beyond materials related to the sole reason given for rescinding DACA—its supposed unlawfulness and vulnerability to legal challenge. The order requires the inclusion of all documents mentioning DACA-related issues of any sort, and is overbroad for that reason alone. But even if the order had been limited to documents analyzing the risk that DACA might be invalidated, those materials are deliberative in character and thus could not be made part of the administrative record absent a showing of bad faith or improper behavior. And to the extent the order will compel the production of communications between the Acting Secretary and high-level officials in the White House—including, potentially, the President himself—the order raises the same sensitive separation-of-powers concerns that made mandamus relief appropriate in Cheney.

These departures from settled principles are enough to establish that the district court’s order is “clearly erroneous as a matter of law,” which is the most important of the factors we consider when deciding whether to grant mandamus relief. The other factors weigh in favor of granting relief as well. The order isn’t immediately appealable, and if relief is denied the harm inflicted will be immediate and irreparable. As the declarations submitted by the government attest, the search for documents responsive to the court’s order will be burdensome and intrusive, given the large number of government officials who may have provided written or verbal input to the Acting Secretary. And the damage caused by public disclosure of otherwise privileged materials can’t be undone following an appeal from the final judgment.

This strikes me as a classic case in which mandamus relief is warranted, and I would therefore grant the writ.

Unlike Wardlaw, Watford is highly respected for his ability. A former clerk to Justice Ginsburg, he was also said to be on President Obama’s short list for the Scalia vacancy. So his strong dissent from a Wardlaw opinion is likely to grab the attention of the Supreme Court, in the event that the government chooses to seek relief in the Court.

Bench Memos

NRO’s home for judicial news and analysis.