It's not a pretty order, but it is pretty amazing. Certainly well worth reading. Some excerpts:
This Court expects all parties, including the Government of the United States, to act in a forthright manner and not hide behind deceptive representations and half-truths. That is why, whatever the motive for the Government’s actions in this matter, the Court is extremely troubled by the multiple representations made by the Government’s counsel―both in writing and orally―that no action would be taken pursuant to the 2014 DHS Directive until February 18, 2015. At the January 15, 2015 injunction hearing, the Court established through counsel for both sides that revised DACA as set forth in the amendments contained in the 2014 DHS Directive were indeed at issue in the case. [P.I. Hr’g Tr. 90‒92, Jan. 15, 2015].
[Transcript of exchanges between judge and government lawyers]
Clearly, if a “clarification” on any ongoing actions taken by the DHS was ever necessary, which of course it was, this was the time. Silence here, and then later during the scheduling discussion, was misleading. Whether by ignorance, omission, purposeful misdirection, or because they were misled by their clients, the attorneys for the Government misrepresented the facts. The Court, relying on counsels’ representations, not only gave the Government extra time for its briefing, but it also took February 18, 2015, as the agreed-upon date by which to rule on the motion for a temporary injunction.
[* * * * *]
[] This representation was made even as the Government was in the process of granting over 100,000 three-year renewals under the revised DACA. In response to this representation, counsel for the States agreed to a schedule more favorable to the Government, and the Court granted the Government’s request not only to file a sur-reply,10 but also to have additional time to do so. The States now argue that they would have sought a temporary restraining order, but for the Government’s misrepresentations. A review of the Chronology of Events, attached as an appendix to this Order, certainly lends credence to the States’ claims.
The explanation by Defendants’ counsel for their conduct after the fact is even more troublesome for the Court. Counsel told the Court during its latest hearing that she was unaware that these 2014 DACA amendments were at issue until she read the Court’s February 16, 2015 Order of Temporary Injunction and Memorandum Opinion and Order (referred to jointly as the “February Opinion”). [Hr’g Tr. 16, Mar. 19, 2015]. Counsel then claimed that the Government took “prompt” remedial action. This assertion is belied by the facts. Even if one were to assume that counsel was unaware that the 2014 DACA amendments in their entirety were at issue until reading this Court’s February Opinion, the factual scenario still does not suggest candor on the part of the Government. The February Opinion was issued late in the evening on February 16, 2015 (based on the representation that “nothing” would happen on DAPA or revised DACA until at least February 18, 2015). As the February Opinion was finalized and filed at night, counsel could not have been expected to review it until the next day; yet, for the next two weeks, the Government did nothing to inform the Court of the 108,081 revised DACA approvals. Instead, less than a week later, on February 23, 2015, the Government filed a Motion to Stay and a Notice of Appeal. Despite having had almost a week to disclose the truth―or correct any omission, misunderstanding, confusion, or misrepresentation―the Government did not act promptly; instead it again did nothing. Surely, an advisory to this Court (or even to the Court of Appeals) could have been included in either document filed during this time period. Yet, counsel for the Government said nothing.
Section 3.3 of the ABA Model Rules of Professional Conduct and Section 3.03 of the Texas Disciplinary Rules of Professional Conduct (which are incorporated as the standards for conduct in the Southern District of Texas pursuant to its Local Rules―Appendix “A” Rule 1(B)) require a lawyer to act with complete candor in his or her dealings with the Court. Under these rules of conduct, a lawyer must be completely truthful and forthright in making representations to the Court. Fabrications, misstatements, half-truths, artful omissions, and the failure to correct misstatements may be acceptable, albeit lamentable, in other aspects of life; but in the courtroom, when an attorney knows that both the Court and the other side are relying on complete frankness, such conduct is unacceptable.
Any number of federal judges, given this misconduct, would consider striking the Government’s pleadings. See, e.g., Tesco Corp. v. Weatherford Int’l, Inc., et al., No. 4-08-2531 (S.D. Tex. Aug. 25, 2014). Under different circumstances, this Court might very well do so. The Court, however, finds that the issues at stake here have national significance and deserve to be fully considered on the merits by the Fifth Circuit Court of Appeals and, in all probability, the Supreme Court of the United States. If this Court were to strike the Government’s pleadings at this juncture, the case would be over. The Plaintiffs would prevail by default. The Court finds at the present time that the ends of justice would not be served by striking pleadings in this case.11 Such a ruling would not only penalize those with an interest in the outcome, but would more importantly penalize the country, which needs and deserves a resolution on the merits.