Amicus Curiae Brief — Department of Commerce, et al., Petitioners v. New York, et al.

No. 18-966

In the Supreme Court of the United States

__________

DEPARTMENT OF COMMERCE, ET AL.,

Petitioners,

v.

NEW YORK, ET AL.

_________

Respondents.

ON WRIT OF CERTIORARI BEFORE JUDGMENT

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

__________

BRIEF AMICUS CURIAE OF THE

BECKET FUND FOR RELIGIOUS LIBERTY

IN SUPPORT OF NEITHER PARTY

__________

KAYLA A. TONEY

WINSTON & STRAWN

1700 K St N.W.

Washington, DC 20006

ktoney@winston.com

(202) 282-5226

ERIC S. BAXTER

Counsel of Record

JOSEPH C. DAVIS

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1200 New Hampshire

Ave., N.W., Ste. 700

Washington, DC 20036

ebaxter@becketlaw.org

(202) 955-0095

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether, in cases in which the plaintiff plausibly

alleges that federal agency officials violated the Constitution by acting with discriminatory intent, the

Administrative Procedure Act bars the plaintiff from

submitting proof of the agency decisionmakers’ intent

from outside the administrative record.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ......................................iii

INTEREST OF THE AMICUS .................................. 1

INTRODUCTION AND SUMMARY

OF THE ARGUMENT ......................................... 3

ARGUMENT ............................................................... 5

I. Plaintiffs alleging colorable claims of

intentional, unconstitutional

discrimination are entitled to limited

discovery beyond the agency’s record.............. 5

II. An intentional-discrimination exception

to the default record rule will not lead to

runaway discovery ......................................... 18

CONCLUSION ......................................................... 22

iii

TABLE OF AUTHORITIES

Page(s)

Asarco, Inc. v. U.S. Envtl. Prot. Agency,

616 F.2d 1153 (9th Cir. 1980) ................................ 7

Ashcroft v. Iqbal,

556 U.S. 662 (2009) .............................................. 19

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ......................................... 18-19

Bose Corp. v. Consumers Union of U.S.,

Inc., 466 U.S. 485 (1984) ...................................... 10

Business Leaders in Christ v. University of

Iowa, No. 17-80, ___ F. Supp. 3d ___,

2019 WL 460401 (S.D. Iowa Feb. 6, 2019) ............ 2

Camp v. Pitts,

411 U.S. 138 (1973) ................................................ 6

Carr v. Zwally,

No. 18-1197, ___ F. App’x ____, 2019

WL 136978 (10th Cir. Jan. 8, 2019) .................... 19

Church of the Lukumi Babalu Aye, Inc.

v. City of Hialeah,

508 U.S. 520 (1993) ...................................... passim

Citizens to Pres. Overton Park v. Volpe,

401 U.S. 402 (1971) ................................................ 7

iv

Congregation Rabbinical Coll. of

Tartikov, Inc. v. Village of Pomona,

280 F. Supp. 3d 426 (S.D.N.Y. 2017) .............. 14-15

Hunter v. Underwood,

471 U.S. 222 (1985) .............................................. 11

Judulang v. Holder,

565 U.S. 42 (2011) .................................................. 6

Masterpiece Cakeshop, Ltd. v. Colorado

Civil Rights Comm’n,

138 S. Ct. 1719 (2018) .......................................... 12

Mitchell v. Helms,

530 U.S. 793 (2000) .............................................. 13

Moses v. Ruszkowski,

No. S-1-SC-34974, ___ P.3d ____,

2018 WL 6566646

(N.M. Dec. 13, 2018) ....................................... 13, 14

Moses v. Skandera,

367 P.3d 838 (N.M. 2015)..................................... 13

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto Ins. Co.,

463 U.S. 29 (1983) .................................................. 6

New Mexico Ass’n of Non-Public Schs. v.

Moses, 137 S. Ct. 2325 (2017) .............................. 13

New York v. U.S. Dep’t of Commerce,

345 F. Supp. 3d 444 (S.D.N.Y. 2018) ............... 9, 10

v

Rader v. Johnston,

924 F. Supp. 1540 (D. Neb. 1996) ........................ 15

Smith v. Town of Clarkton,

682 F.2d 1055 (4th Cir. 1982) ................................ 7

Stormans, Inc. v. Wiesman,

136 S. Ct. 2433 (2016) ...................................... 1, 12

Trinity Lutheran Church of Columbia,

Inc. v. Comer,

137 S. Ct. 2012 (2017) .......................................... 13

Village of Arlington Heights v.

Metropolitan Hous. Dev. Corp.,

429 U.S. 252 (1977) .................................... 9, 12, 20

Webster v. Doe,

486 U.S. 592 (1988) .................................... 8, 18, 20

Statutes

5 U.S.C. § 706 .............................................................. 6

Other Authorities

David J. Barron & Elena Kagan,

Chevron’s Nondelegation Doctrine,

2001 Sup. Ct. Rev. 201, 231 ................................. 17

Fed. R. Civ. P. 26 ....................................................... 20

vi

Phillip Hamburger, Exclusion and

Equality: How Exclusion from the

Political Process Renders Religious

Liberty Unequal, 90 Notre Dame L.

Rev. 1919 (2015) ....................................... 16, 17, 18

INTEREST OF THE AMICUS1

The Becket Fund for Religious Liberty is a nonprofit, nonpartisan law firm dedicated to protecting

the free expression of all religious traditions. It has

represented agnostics, Buddhists, Christians, Hindus, Jews, Muslims, Native Americans, Santeros,

Sikhs, and Zoroastrians, among others, in lawsuits

across the country and around the world. In particular, Becket has frequently represented religious

groups harmed by policies that, though allegedly

neutral on their face, have ultimately been shown—

by evidence developed through discovery and in the

courtroom—to be products of unconstitutional religious targeting. See, e.g., Stormans, Inc. v. Wiesman,

136 S. Ct. 2433, 2433 (2016) (Alito, J., dissenting

from denial of certiorari) (representing Christian

pharmacy where there was “much evidence that the

impetus for the adoption of the [challenged] regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of

step with prevailing opinion in the State”); Brief for

Appellants at 15, Fulton v. City of Philadelphia, No.

18-2574 (3d Cir. Aug. 27, 2018) (seeking injunction to

protect Catholic adoption agency from forced shutdown where testimony showed that city told the

agency that it is “not 100 years ago,” “times have

changed,” and the agency needs to follow the city’s

1 No counsel for a party authored any portion of this brief

or made any monetary contribution intended to fund the

preparation or submission of the brief. All parties have

consented to the filing of this brief.

2

view of the Pope’s teachings); Business Leaders in

Christ v. University of Iowa, No. 17-80, ___ F. Supp.

3d ____, 2019 WL 460401, at *6, 10 (S.D. Iowa Feb. 6,

2019) (obtaining injunction against university policy

forbidding student groups from selecting members

based on beliefs where discovery demonstrated that

the policy had been applied against a religious group

with traditional beliefs about marriage and sexuality

but not groups espousing the “ideological inverse”).

Here, Becket takes no position on the merits question of whether the Department of Commerce acted

legally in reinstating a citizenship question to the

census. Instead, Becket is concerned that the Department’s theory that the Administrative Procedure

Act (APA) bars all extra-record discovery—even for

claims, like Respondents’ Equal Protection claim, alleging that agency action was motivated by an unconstitutional, discriminatory purpose—would prevent other plaintiffs from proving colorable claims of

discrimination against federal agencies under the

Free Exercise Clause. If plaintiffs with colorable

claims of intentional religious discrimination are

barred from pursuing any evidence of an agency’s

purpose beyond the record the agency has itself compiled to support its decision, then the Free Exercise

Clause’s protections against religious discrimination—whether facial or subtle, overt or masked—will

be severely undermined. Becket therefore files this

brief to highlight the potential harm of the “record

rule” in this context for future plaintiffs seeking to

vindicate their constitutional rights under the Free

Exercise Clause.

3

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

For centuries, the emblem of Lady Justice has

held a pair of evenly weighted scales. To ensure that

the scales of justice aren’t tilted at the outset of a

dispute, courts evenhandedly apply federal rules governing discovery, evidence, and civil procedure. These

rules allow both sides of a dispute to obtain and admit relevant evidence supporting their claims and

defenses. Discovery is especially important to smoke

out hidden animus in cases in which the plaintiff’s

claim is based on discriminatory intent. Yet under

the “record rule” developed under the APA, plaintiffs

seeking to challenge federal agency action must rely

on the agency’s own internal record, rather than undertaking traditional discovery. Applied to cases in

which the plaintiff claims that a facially neutral

agency action was in fact motivated by masked, discriminatory intent, the record rule tips the scales in

favor of the federal agency—before the case has even

begun.

In this case, Becket takes no position on the merits of the ultimate issue—whether the district court

was right to enjoin the Secretary of Commerce from

reinstating a citizenship question to the 2020 decennial census. Instead, this brief focuses solely on the

evidentiary issue encompassed in the second question

presented: whether plaintiffs who have plausibly alleged that a federal agency action was motivated by

unconstitutional animus should be able to obtain

traditional discovery. Here, the district court held

that Respondents had a plausible claim of intentional

discrimination, denying the Department’s motion to

dismiss Respondents’ Equal Protection argument

4

that the Department’s decision was motivated by animus against racial minorities. Pet. App. 425a-434a.

If that decision was right, then the district court was

also right to allow discovery, since it would be absurd

to ask plaintiffs to prove a claim of masked, invidious

discrimination based solely on records generated by

the defendant agency itself.

The availability of discovery in intentionaldiscrimination cases holds particular importance in

the religious-liberty context, because Free Exercise

claimants often rely on the discovery process to expose key evidence underlying their claims of discrimination, targeting, or hostility by agency officials. At

the state and local levels, religious adherents may

use the traditional discovery process to prove their

claims, but under the Department’s view of the record rule, the APA would prevent them from obtaining

this critical evidence when seeking judicial review of

federal agency actions. Thus, regardless of the

Court’s decision on the merits, we advocate that

when plaintiffs allege a colorable claim of intentional,

unconstitutional discrimination, they should have

access to traditional discovery so they can prove

whether agency officials acted with discriminatory

intent, instead of being confined to the agency’s own

internal record. This approach will not lead to runaway discovery, because plaintiffs must still meet the

well-pleaded complaint standard to survive a Rule

12(b)(6) motion to dismiss, as well as the other generally applicable limits on discovery, including the

proportionality requirement of Federal Rule of Civil

Procedure 26.

5

ARGUMENT

I. Plaintiffs alleging colorable claims of intentional, unconstitutional discrimination are

entitled to limited discovery beyond the

agency’s record.

In their previous briefing on this issue, the parties

focused on just one of the district court’s rationales

for permitting discovery in this case—its conclusion

that Respondents have made the threshold showing

necessary to satisfy the “bad faith” exception to the

“record rule” applicable in APA cases. See Pet’rs’ Br.

21-37, No. 18-557; Resp’ts Br. 35-50, No. 18-557. This

brief focuses instead on the district court’s other rationale for declining to apply the record rule: that

whether or not Respondents made the showing of bad

faith, the record rule does not apply because Respondents plausibly alleged that the Department’s

action was based on unconstitutional, racial animus.

Pet. App. 326a-330a & nn. 80-81. As the district court

explained, to apply the record rule to such claims—

and thus to deny the plaintiff any discovery into the

government’s purposes for its actions beyond what

can be gleaned from the government’s own administrative record—would improperly handicap Equal

Protection plaintiffs’ ability to prove up their cases,

since the government typically does not openly announce on the record that its decisions are based on

animus against constitutionally protected groups.

That rationale is correct—and it applies with equal

force to claims brought by religious plaintiffs under

the Equal Protection Clause and under the Free Exercise Clause, which, it is well established, “protects

against governmental hostility which is masked, as

6

well as overt.” Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993).

1. Section 706 of the APA directs courts, in cases

challenging “agency action,” to “review the whole record or those parts of it cited by a party.” 5 U.S.C.

§ 706. While the text does not actually prohibit courts

from looking outside the agency record, courts have

fashioned a default “record rule” in APA cases that

typically displaces the Federal Rules’ discovery provisions and confines judicial review of agency decisionmaking to “the administrative record already in

existence, not some new record made initially in the

reviewing court.” Camp v. Pitts, 411 U.S. 138, 142

(1973) (per curiam).

This record rule often serves an important function in APA litigation. For instance, when the plaintiff’s APA claim is that the agency’s action was “arbitrary [or] capricious” because the agency failed to engage in “reasoned decisionmaking,” Judulang v.

Holder, 565 U.S. 42, 52-53 (2011), the record rule

rightly focuses judicial review on the materials the

agency acknowledges it considered in arriving at its

decision and on the agency’s official explanation for

that decision. After all, in applying arbitrary-orcapricious review, the court’s role is not to “substitute

its judgment for that of the agency” but rather to assure itself that the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation

for its action including a ‘rational connection between

the facts found and the choice made.’” Motor Vehicle

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins.

Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck

Lines v. United States, 371 U.S. 156, 168 (1962)).

7

That “examin[ation]” and “explanation,” if it occurred, will appear in the administrative record.

Other times, however, there is not an easy fit between application of the record rule and the substance of the plaintiff’s claim—and in that situation,

courts have carved out multiple exceptions to the

record rule. For instance, when the plaintiff’s claim is

that the agency failed to consider some relevant factor it was required to consider, courts have declined

to apply the record rule. In that situation, it would be

“impossible” for the court to analyze the plaintiff’s

claims unless it could “look[] outside the record to

determine what matters the agency should have considered but did not.” Asarco, Inc. v. U.S. Envtl. Prot.

Agency, 616 F.2d 1153, 1160 (9th Cir. 1980); see also

Citizens to Pres. Overton Park v. Volpe, 401 U.S.

402, 420 (1971) (“since the bare record may not disclose the factors that were considered * * * it may be

necessary” to admit extra-record evidence)

This same reasoning applies when the plaintiff’s

claim is not that the government drew wrongheaded

conclusions from the evidence before it or that the

government failed to consider relevant data, but rather that the government’s decision was based on intentional, unconstitutional animus. Government officials, of course, “seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a”

constitutionally protected group. Smith v. Town of

Clarkton, 682 F.2d 1055, 1064 (4th Cir. 1982). If

courts are required to apply the record rule to these

claims—and thus “take the agency’s word that” its

official rationale was its real one, Asarco, 616 F.2d at

1160—plaintiffs will be unable to obtain the evidence

8

that the substantive law requires to make out their

claims.

Thus, in Webster v. Doe, 486 U.S. 592 (1988), this

Court already contemplated that claims of unconstitutional animus may be entitled to ordinary discovery, even in APA cases. In Webster, the plaintiff alleged, among other things, that his firing by the CIA

was arbitrary and capricious and was motivated by

unconstitutional discrimination on the basis of sexual

orientation. Id. at 595-96. This Court dismissed the

arbitrary-and-capricious claim, holding that the text

of the statute enabling the CIA’s Director to make

termination decisions supplied no “meaningful judicial standard of review.” Id. at 600. But the Court

agreed with the court of appeals that the plaintiff’s

constitutional claims should proceed—and that the

case should be “remanded * * * for a determination of

the reason for the Director’s termination of” the

plaintiff for purposes of those claims. Id. at 598, 60105. Rejecting the government’s argument that “inquiry and discovery” on this point would entail impermissible “‘rummaging around’ in the Agency’s affairs,” the Court explained that “the District Court

has the latitude to control any discovery process * * *

so as to balance respondent’s need for access to proof

which would support a colorable constitutional claim

against the extraordinary needs of the CIA for confidentiality and the protection of its * * * mission.” Id.

at 604.

Webster’s

recognition that Equal Protection

claims of intentional discrimination may sometimes

entail discovery, even in APA cases, makes good

sense. As the district court explained below, this

Court’s Equal Protection jurisprudence requires

9

plaintiffs to prove that the government acted with a

“discriminatory intent or purpose.” New York v. U.S.

Dep’t of Commerce, 345 F. Supp. 3d 444, 451-52

(S.D.N.Y. 2018) (quoting Village of Arlington Heights

v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265

(1977)). “That same precedent mandates ‘a sensitive

inquiry into such circumstantial and direct evidence

of intent as may be available,’ and explicitly calls for

consideration of ‘evidence’ such as the ‘historical

background of the decision,’ the ‘specific sequence of

events leading up [to] the challenged decision,’ procedural and substantive ‘departures’ from the norm,

and, in ‘some extraordinary instances,’ the testimony

of decisionmakers.” Id. at 452 (quoting Arlington

Heights, 429 U.S. at 266-68) (emphasis in original). It

would therefore “be perverse” to apply the default

record rule to such claims; that would “suggest that

litigants and courts evaluating whether government

actors have engaged in invidious discrimination cannot look beyond the record that those very decisionmakers may have carefully curated to exclude

evidence of their true ‘intent’ and ‘purpose.’” Ibid.

Importantly, the same point applies to claims of

intentional discrimination under the Free Exercise

Clause. Government action violates the Free Exercise

Clause if it is not “neutral” toward religion. Lukumi,

508 U.S. at 531-32. And a law is not neutral toward

religion if, among other things, its “object * * * is to

infringe upon or restrict practices because of their

religious motivation.” Id. at 533. This inquiry is not

limited to the law’s “facial neutrality”; “[t]he Free

Exercise Clause protects against governmental hostility which is masked, as well as overt.” Id. at 534.

Yet application of the record rule to plausible claims

10

of religious animus would curtail the Free Exercise

Clause’s protections against “covert suppression of”

religion, ibid, limiting the plaintiff’s evidence of discrimination to a universe of material prepared for

public scrutiny by the government itself.

Because application of the record rule would undermine plaintiffs’ ability to prove Free Exercise and

Equal Protection claims of intentional discrimination

by federal agencies, an intentional-discrimination exception should permit limited discovery in these cases. When plaintiffs allege a plausible claim of intentional discrimination that is unconstitutional under

substantive law, they should be entitled to discovery,

even if the case is a challenge to agency action governed by the APA. This rule would not only harmonize the scope of admissible evidence with the requirements of the plaintiff’s claim, but also would accord with the heightened protection this Court has

afforded to “the precious liberties established and ordained by the Constitution” in other contexts. See

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S.

485, 511 (1984). Just as constitutional claims invoke

heightened factual review by the courts, ibid., so do

they warrant protections to ensure that the relevant

facts are available for consideration in the first place.

2. The district court’s concern that applying the

record rule to claims of intentional discrimination

would “risk undermining decades of * * * jurisprudence” (New York, 345 F. Supp. 3d at 452) is far from

speculative. To the contrary, Equal Protection and

Free Exercise decisions from this Court and others

have frequently turned on direct and circumstantial

evidence of the decisionmaker’s purpose—the kind of

evidence that typically will be unavailable if a re-

11

viewing court is forbidden from looking outside the

administrative record.

In Hunter v. Underwood, for instance, this Court

held unconstitutional under the Equal Protection

Clause a state constitutional provision disenfranchising persons convicted of crimes involving “moral turpitude.” 471 U.S. 222, 223 (1985). The provision was

“on its face [] racially neutral.” Id. at 227. But, relying on “testimony and opinions of historians” about

the state decisionmakers’ intent—and suggesting

that it would have considered testimony from “eyewitnesses” to the proceedings had they been available—this Court held that the provision was unconstitutional because it had been “enacted out of racial

animus.” Id. at 228-233. Make Hunter a case about

federal agency action, rather than a state constitutional provision, and the evidence relied on by the

Hunter Court would be prohibited by the Department’s view of the record rule.

Turning to Free Exercise, in Lukumi, the Court

held unconstitutional a series of city ordinances banning animal sacrifice. The Court granted that the ordinances may not have “discriminate[d]” against religion “on [their] face.” Lukumi, 508 U.S. at 533. But

emphasizing that that the Free Exercise Clause forbids not just facial discrimination but also “covert,”

“masked,” or “subtle departures from neutrality,” the

Court concluded that the ordinances’ true “object or

purpose [was] the suppression of religion.” Id. at 53334 (internal quotation marks omitted). Further, Justice Kennedy reached that conclusion based not just

on the ordinances’ text and operation, but also on the

“events preceding their enactment” and contemporaneous statements of city residents and officials. Id. at

12

540-42 (opinion of Kennedy, J.). Justice Kennedy explained that because “neutrality” under the Free Exercise Clause requires “an equal protection mode of

analysis,” “[r]elevant evidence includes * * * the historical background of the decision under challenge,

the specific series of events leading to the enactment

or official policy in question, and the legislative or

administrative history, including contemporaneous

statements made by members of the decisionmaking

body.” Id. at 540 (citing Arlington Heights, 529 U.S.

at 266).

To be sure, the portion of Justice Kennedy’s

Lukumi opinion relying on historical evidence and

lawmakers’ statements commanded only two Justices. See Stormans, 136 S. Ct. at 2437 n.3 (Alito, J.,

dissenting from denial of certiorari) (noting “[i]t is an

open question whether a court considering a free exercise claim should consider evidence of individual

lawmakers’ personal intentions, as is done in the

equal protection context,” but explaining how such

evidence indicated lack of neutrality there). In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Commission, 138 S. Ct. 1719 (2018), however, a majority relied on similar evidence to find government

action non-neutral. There, the Court looked to state

civil rights commissioners’ comments at public meetings to find that the commission’s decision to reject a

religious baker’s claim that he could not be required

to create cakes for same-sex weddings was motivated

by “a clear and impermissible hostility toward the

sincere religious beliefs that motivated his objection.”

Id. at 1729-1730.

Consistent with Lukumi and Masterpiece, lower

courts have consistently looked to historical-

13

background evidence to determine whether a law was

motivated by an impermissible purpose under the

Free Exercise Clause. Moreover, this type of evidence

has frequently played a key, and sometimes dispositive, role, in the lower courts’ Free Exercise cases.

For example, historical evidence of religious animus was critical to a recent decision by the New Mexico Supreme Court limiting the scope of New Mexico’s

Blaine Amendment. See Moses v. Ruszkowski, No. S1-SC-34974, ___ P.3d ____, 2018 WL 6566646 (N.M.

Dec. 13, 2018) (Moses II ). Moses involved a textbook

lending program making textbooks available to all

students, whether in public or private schools. The

program was challenged under New Mexico’s Blaine

Amendment, which had been imposed on the state by

the U.S. Senate as a condition of statehood. The Senate’s proposed version prohibited aid to “sectarian or

denominational school[s],” id. at *4, a known reference to Catholic institutions. See Mitchell v. Helms,

530 U.S. 793, 828 (2000) (plurality). But the adopted

version prohibits aid to both “sectarian” and “private”

schools—an apparent compromise to satisfy both the

U.S. Senate and the New Mexico constitutional convention’s Catholic delegates. Applying the provision’s

plain text, the New Mexico Supreme Court initially

ruled 5–0 that the textbook lending program violated

the Blaine Amendment. Moses v. Skandera, 367 P.3d

838 (N.M. 2015). After Becket sought review, highlighting the anti-Catholic animus underlying Blaine

Amendments generally, this Court granted certiorari,

vacated, and remanded the case in light of Trinity

Lutheran Church of Columbia, Inc. v. Comer, 137 S.

Ct. 2012 (2017). See New Mexico Ass’n of Non-Public

Schs. v. Moses, 137 S. Ct. 2325 (2017).

14

On remand, the New Mexico Supreme Court

reached the opposite conclusion by looking “through a

different lens, one that focuses on discriminatory intent.” Moses II, 2018 WL 6566646, at *12. In so doing, the Moses II court relied heavily on historical

and social evidence—evidence that would not have

been admissible under the default record rule in an

APA case. Citing Masterpiece and Lukumi, the court

examined the historical and social context of Blaine

Amendments, finding that the rationale for these

provisions was deeply anti-Catholic. Id. at *9. The

court also found that “New Mexico was caught up in

the nationwide movement to eliminate Catholic influence from the school system,” because the Catholic

schools that many Spanish speakers attended were

being blamed for the state’s subpar educational outcomes. Id. at *12. Based on this evidence, the court

reversed its earlier ruling and held that textbook

loans to private schools did not violate the New Mexico Constitution. As in Hunter, the animus underlying New Mexico’s Blaine Amendment would have

gone undetected had the record rule prohibited the

court from looking to evidence of intent other than

the government’s own records.

The New Mexico Supreme Court’s about-face

based on historical evidence of religious animus

makes Moses II a particularly dramatic example of

how overextension of the record rule would cripple

Free Exercise claims. But numerous other cases are

to similar effect.

In Congregation Rabbinical College of Tartikov,

Inc. v. Village of Pomona, 280 F. Supp. 3d 426

(S.D.N.Y. 2017), for instance, the court found that village zoning and environmental ordinances had been

15

passed for the discriminatory purpose of preventing

an Orthodox Jewish community from building a rabbinical college, and thus violated the Equal Protection and Free Exercise Clauses. Id. at 448-68, 482-85.

The court reached this conclusion based not just on

the ordinances’ text and government records but on

“evidence and testimony presented during” a 10-day

“trial,” including trial testimony by village officials.

Id. at 435, 449; see also id. at 452 (listing statements

made by officials outside of official proceedings that

were “indicative of Defendants’ prejudice against

Tartikov and Orthodox/Hasidic Jews”).

Likewise, in Rader v. Johnston, 924 F. Supp. 1540

(D. Neb. 1996), the court held that university officials

violated the Free Exercise Clause when they refused

to allow a student to live in off-campus housing

maintained by a Christian group. The defendants argued that the refusal was based on a religion-neutral

requirement that freshmen live on-campus. Id. at

1552-53. But the court disagreed, relying on trial testimony from the university decisionmakers, which

“manifested a degree of antipathy toward” members

of the Christian group and demonstrated that some

of the decisionmakers had refused the exemption

“base[d] * * * upon their own religious experiences

and their own perceptions” of the student’s religious

beliefs. Id. at 1553-55; see also id. at 1554 & n.26 (decisionmakers testified at trial that student’s views

were “simply not true” and insinuated that the Christian group opposed “[d]iversity of thought”).

These cases demonstrate that application of the

record rule is inconsistent with “substantive law”

that—like the Equal Protection and Free Exercise

Clauses—“provides that [the government deci-

16

sionmaker’s] motive or purpose are relevant.” Pet.

App. 328a & n.80. The reviewing court needs the

ability to look beyond the record that decisionmakers

“may have carefully curated to exclude evidence of

their true ‘intent’ and ‘purpose,’” ibid. (citation omitted)—and look to things like historical evidence

(Hunter; Moses II) and direct testimony from decisionmakers (Congregation Rabbinical College ; Rader). Otherwise, in challenges to federal agency action,

the discriminatory animus that the Equal Protection

and Free Exercise doctrines are designed to “smoke

out” will all too often go undetected. Pet. App. 327a.

3. The availability of discovery for intentionaldiscrimination claims against federal agencies is especially critical under the Free Exercise Clause, since

the administrative state’s insulation from democracy

heightens the risk of discrimination against religious

Americans.

While Americans can actively participate in the

political process by electing legislators, lobbying, and

donating to campaigns, “most Americans have no

hope of even identifying most administrative lawmakers, let alone meeting or speaking with them.”

Phillip Hamburger, Exclusion and Equality: How Exclusion from the Political Process Renders Religious

Liberty Unequal, 90 Notre Dame L. Rev. 1919, 1939

(2015). And while administrative agencies are thus

less democratically accountable to Americans in general, they operate with a “distinctively hard edge” for

religious Americans, because administrative lawmaking is designed to be “scientific” and “rational” rather

than responsive to constituents’ needs. Id. at 1921.

This emphasis often leads administrators to be “relatively indifferent, if not unsympathetic to religious

17

concerns”—a tendency that is especially harmful if

Free Exercise plaintiffs must rely solely on the agency’s record in court. Ibid.

Because “congressional lawmaking is open to the

concerns of religious Americans in ways that administrative rulemaking is not,” the scope of judicial review should be, if anything, broader in the administrative context—not severely limited. Hamburger at

1940. Yet application of the APA record rule to religious-discrimination claims would have just the opposite effect on religious plaintiffs. If a state law restricts a religious adherent’s free exercise, he can sue

under the state constitution or religious freedom

statute, contact his state legislators, vote them out of

office, or lobby for an exemption. He can take all

these steps and more if a federal statute impinges his

free exercise, including suing under the federal Religious Freedom Restoration Act or the Religious Land

Use and Institutionalized Persons Act. But if a federal agency, whether through a rulemaking or an official’s action, is the alleged discriminator, the religious adherent may be forced to stay home rather

than vindicate his rights, since he will be restricted

by the record rule from admitting the ordinary kinds

of evidence that would reveal the discrimination he

experienced. And while the notice-and-comment period before promulgation of an agency rule does permit

citizens to write to administrative officials, this often

“functions as charade” when compared to the meaningful influence citizens can have in the legislative

process through elections, campaigns, and lobbying.

David J. Barron & Elena Kagan, Chevron’s Nondelegation Doctrine, 2001 Sup. Ct. Rev. 201, 231.

18

Thus, the administrative lawmaking process remains largely a “closed world”—resulting in “severe

and constitutionally significant consequences for religious Americans.” Hamburger at 1942. The issue

here of a closed agency record gains importance in

light of Americans’ lack of access to administrative

lawmakers. Because of this limitation, courts should

“more directly and systematically recognize how, on

account of the exclusion [from political participation],

even apparently equal administrative law is apt to be

unequal.” Id. at 1978. An intentional-discrimination

exception to the record rule would help ensure administrative accountability through balanced and

thorough judicial review.

II. An intentional-discrimination exception to

the default record rule will not lead to runaway discovery.

Given the political stakes of this case, and Respondents’ unusual request to depose the head of the

Department of Commerce, legitimate concerns arise

that an intentional-discrimination exception to the

record rule would open the floodgates to routine depositions of high-ranking executive officials. But as

this Court recognized in Webster, key limiting principles ensure that the availability of discovery in cases involving claims of discriminatory animus will not

lead to excessive “rummaging around” in the government’s affairs. Webster, 486 U.S. at 604.

1. First, as a natural limit on any exception to the

record rule, plaintiffs must provide a well-pleaded

complaint in order to survive a Rule 12(b)(6) motion

to dismiss, and thus to be entitled to any discovery at

all. In Bell Atlantic Corporation v. Twombly, this

19

Court made clear that a plaintiff’s obligation “requires more than labels and conclusions,” and that

“[f]actual allegations must be enough to raise a right

to relief above the speculative level * * * on the assumption that all of the complaint’s allegations are

true.” 550 U.S. 544, 555 (2007). The plaintiff’s claim

must be plausible on its face, which it is only if “the

plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining plausibility is a “context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id. at 679.

This means that under the intentionaldiscrimination exception to the default record rule, a

Free Exercise or Equal Protection plaintiff could not

get around the record rule by a rote recitation that

the government’s action was motivated by religious

animus. Instead, the plaintiff would have to plausibly

plead, based on “sufficient factual matter,” that the

defendant agency acted “not for a neutral * * * reason

but for the purpose of discriminating on” an unconstitutional basis. Iqbal, 556 U.S. at 676-77. Lower-court

caselaw shows that this standard has real teeth in

Free Exercise cases. E.g., Carr v. Zwally, No. 181197, ___ F. App’x ____, 2019 WL 136978, at *2-3

(10th Cir. Jan. 8, 2019) (affirming grant of motion to

dismiss against Free Exercise plaintiff because he

“fail[ed] to plausibly allege that [the defendant] acted

with” a religiously-discriminatory purpose, rather

than just “out of a personal animus”). And indeed, in

this case, the district court dismissed one of Respondents’ constitutional claims under Rule 12(b)(6),

20

while denying the Department’s motion to dismiss

on, inter alia, Respondents’ Equal Protection claim—

thus limiting the scope of discovery to only those

claims that met the Twombly standard of plausibility. Pet. App. 423a-424a.

2. Likewise, beyond the gatekeeping function of

Rule 12(b)(6), the discovery rules themselves already

contain mechanisms designed to prevent excessively

burdensome discovery. Any discovery must of course

satisfy Rule 26, which requires that the discovery

both be relevant and “proportional to the needs of the

case.” Fed. R. Civ. P. 26(b)(1). But more importantly,

in cases in which discovery is sought against government officials, this Court has emphasized that

district courts have “the latitude to control any discovery process so as to balance [the plaintiff’s] need

for access to proof which would support a colorable

constitutional claim against” the need to avoid undue

intrusion on the government’s decisionmaking process. Webster, 486 U.S. at 604.

Given this balancing already required by the discovery rules, the Department appropriately insists

that depositions of “high-ranking government officials” should occur “only in ‘extraordinary instances.’”

Pet’rs’ Br. 38, No. 18-557 (quoting Arlington Heights,

429 U.S. at 268). But where the plaintiff has alleged

a plausible claim of intentional, unconstitutional discrimination, the rarity of this practice should be a

function of the discovery rules—not, as the Department urges, the record rule. After all, the record rule

prohibits not just depositions of high-ranking officials

but all discovery beyond the administrative record—

interrogatories, requests for admission, and document requests alike. There is no justification for pro-

21

hibiting Free Exercise and Equal Protection plaintiffs

with plausible animus claims from engaging in any

discovery just to stop them from engaging in one particularly burdensome kind.

*

*

*

The Free Exercise Clause protects against

“mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.” Lukumi,

508 U.S. at 547. Yet under the Department’s view of

the record rule, plaintiffs alleging religiousdiscrimination claims against federal agencies will be

able to prove up their case only if the agency’s discriminatory purpose is “overt” enough to appear on

the face of the very record the agency has prepared

for public view. The Court should reject that position

and hold that plaintiffs alleging plausible claims

against federal agencies of intentional, unconstitutional discrimination are ordinarily entitled to discovery, subject to the limitations inherent in the discovery rules.

22

CONCLUSION

In answering the second question presented, the

Court should hold that when a plaintiff plausibly alleges that agency action was motivated by intentional, unconstitutional discrimination, the APA does not

bar extra-record discovery.

Respectfully submitted.

KAYLA A. TONEY

WINSTON & STRAWN

1700 K St N.W.

Washington, DC 20006

ktoney@winston.com

(202) 282-5226

ERIC S. BAXTER

Counsel of Record

JOSEPH C. DAVIS

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1200 New Hampshire

Ave., N.W., Ste. 700

Washington, DC 20036

ebaxter@becketlaw.org

(202) 955-0095

Counsel for Amicus Curiae

MARCH 2019