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Judge limits discovery Pence sought in Syrian refugee case

December 30, 2015
Editor’s note: Earlier versions of this story erroneously characterized the nature of District Judge Tanya Walton Pratt’s order in this case. The order did not limit discovery. The order granted an extension sought by the state to respond to the complaint, rescheduled an injunction hearing, and referred discovery disputes to a magistrate judge.

A federal judge has granted extensions the administration of Gov. Mike Pence sought as it continues to oppose a charity’s resettlement of Syrian refugees in Indiana. The ACLU of Indiana in court filings called the scope of the state’s demands directed at the agency “breathtaking.”
 
District Judge Tanya Walton Pratt of the U.S. Court for the Southern District of Indiana on Tuesday granted the administration’s motion for a continuance of a preliminary injunction hearing. Pratt referred to a magistrate requests by the state for production of years’ worth of documents and records from Exodus Refugee Immigration Inc.
 
The Indiana attorney general’s office represents Pence in the suit and made the demands on Exodus after the ACLU sued on its behalf. The not-for-profit’s suit followed Pence’s announcement that he directed state agencies to suspend resettlement of Syrian refugees after the Paris terrorist attacks in early November. Despite Pence’s announcement and personal appeals to halt resettlement of a family, the agency proceeded with its planned, approved resettlement of a family of four.
 
Exodus seeks an injunction barring Pence and Family and Social Services Administration Secretary John Wernert from suspending federal refugee funding that passes through state agencies. Exodus argues its case is simple: Refugee resettlement falls under the purview of the federal government, and Pence is pre-empted from suspending authorized resettlements.
 
Pence has argued the agency “has a lack of any valid right of action or standing to assert the rights of refugees.” He was granted leave to file a brief of up to 50 pages  to respond to the suit, citing “serious threats to the peace implied by domestic and international events” and “substantial homeland security questions” about the vetting of refugees. 
 
Pratt’s order gives the state until Jan. 15 to file is brief and continued the injunction hearing until 10:30 a.m. Feb. 12 at the Birch Bayh Federal Building and U.S. Courthouse in Indianapolis.   
 
“Recognizing the exigency of Plaintiff’s request for a hearing on the motion for injunctive relief, parties should anticipate no further extensions of discovery or continuances of the hearing,” Pratt wrote.
 
The state previously requested production of, among other things, all communication since 2011 about the refugee resettlement program between any Exodus employee and anyone acting on behalf of Exodus and any U.S. government official. The sweeping discovery request also sought all communications since 2011 between Exodus employees, and between Exodus employees and employees of sponsoring organizations including Church World Service and Episcopal Migration Ministries.
 
Pratt assigned future discovery disputes to Magistrate Judge Denise K. LaRue. In objecting to the state’s discovery requests, Exodus says LaRue conducted a phone conference between parties on Dec. 2. “During that conference it was agreed by all that this was essentially a ‘law’ case and that the preliminary injunction would be an oral argument only, although the State’s counsel indicated that they desired to do some discovery prior to the hearing.”
 
Exodus claims the state has not identified material factual disputes it now claims exist in its effort to widen discovery.
 
“Instead, the State has served discovery, Freedom of Information Act requests, and subpoenas that are breathtaking in their scope and that have nothing to do with the issues in this case – issues that the State conceded could be resolved by an oral argument after briefing,” Exodus argues.
 
AG spokeswoman Molly Gillaspie said the state never asked the court to enforce its discovery request and disagreed with the characterization the requests were overbroad.

“The state’s discovery requests in this case are not unusually broad in size or scope, rather they are typical for cases of this magnitude. The state fully expects to work with the plaintiff to obtain relevant information needed for the defense,” Gillaspie said in a statement.

The agency says its work placing families displaced by war doesn’t begin until those families obtain refugee status. The process for resettlement includes passing security screenings by federal agencies including the State and Defense Departments, Homeland Security and the FBI.
 
Exodus says it has no information relevant to Pence’s concerns.
 
“The State’s desire to probe into security concerns relating to refugee resettlement – of which Exodus has no knowledge – merely highlights the preemption issue, which is the legal issue at the heart of this case,” Exodus argues.
 
Pence is among more than two dozen largely Republican governors who called for a suspension of the resettlement of Syrian refugees after the Paris attacks last month. Texas officials sued the federal government in an effort to block resettlement of refugees, but a federal judge earlier this month denied the state’s request for a temporary restraining order blocking resettlement.
 
In a three-page order, Judge David C. Godbey of the U.S. Court for the Northern District of Texas observed, “The fact that this Court is required to assess the risk posed by a group of Syrian refugees illustrates one of the problems with this case. The Court has no institutional competency in assessing the risk posed by refugees. That is precisely the sort of question that is, as a general matter, committed to the discretion of the executive branch of the federal government, not to a district court.”
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