Delaware’s appeal to withhold a federal request for employment records of 15 businesses was ended May 28, after the U.S. Court of Appeals for the Third Circuit refused to hear the motion.

In a statement following the decision, Attorney General Kathleen Jennings and Gov. Matt Meyer said the order requires the Delaware Department of Labor to provide the documents. 

“The court has spoken, and with no viable alternative before us, the state must honor its ruling – but this was a fight worth losing on our feet,” she said. “This was not just a question of what the law demands, but also of what our conscience permits. We cannot pretend that the legal question is narrowly limited to just a handful of employers and records; the context and intent of the policy behind it is inseparable from the demand itself. The federal government is using its subpoena authority as a fig leaf for naked racial profiling."  

Meyer said his administration “will not stop fighting against Trump administration actions that hurt Delawareans and our businesses.” 

In April, Meyer announced the Delaware Department of Justice would appeal after Delaware District Court Judge Colm Connolly ordered the state to release wage report information that had been subpoenaed by Homeland Security Investigations, a branch of the U.S. Immigration and Customs Enforcement that operates under the Department of Homeland Security.

The subpoena sought third- and fourth-quarter wage reports from 15 businesses already filed with the Delaware Department of Labor as part of a federal investigation to verify eligible employees and “substantiate certain leads about businesses alleged to employ unauthorized aliens,” according to a DHS agent quoted in court records.

The Department of Labor first ignored the federal subpoena, records state, and neither DOL Secretary LaKresha Moultrie nor her staff responded to a later request for information sent by certified mail.

Later, DOL argued that the subpoena exceeds DHS’s authority, citing case law that prevents a blanket John Doe subpoena where targets of a general investigation are unknown, and claimed that the subpoena is burdensome because it is asking for 30 unemployment compensation wage reports that will “interfere with the efficient administration of [Delaware’s unemployment compensation] program.”

In his order, Connolly wrote that DOL’s novel theory fails on many fronts.

In particular, he writes that DOL does not explain how the 30 wage reports would have become public had DOL had simply complied with the subpoena.

“The only reason the public knows about the subpoena in question and that DHS intends to use the wage reports covered by the subpoena to conduct worksite enforcement investigations is because [DOL] refused to comply with the subpoena and forced the government to file this action,” the opinion states.