The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
ORDER DENYING PLAINTIFFS' MOTION TO PERMIT RELIANCE UPON EXPERT TESTIMONY AND LIMITED DISCOVERY [Document No. 242] VACATING DISCOVERY DEADLINES UNITED STATES ARMY CORPS OF ENGINEERS
On July 23, 2010, Plaintiffs filed a Motion to Permit Reliance Upon Expert Testimony and Limited Discovery. (Doc. 242.) First, Plaintiffs contend expert testimony is necessary to assist the Court with technical issues in this action. (Id. at 2.) Second, Plaintiffs contend discovery is necessary because: (1) the administrative record is incomplete and insufficient to explain the United States Department of the Navy's (hereinafter Navy) decision; (2) the Navy relied upon documents and communications which are not in the record; and (3) the Navy acted in bad faith. (Id.)
On August 2, 2010, Defendant Navy filed an opposition, stating the Administrative Procedure Act, 5 U.S.C. sections 701-706, precludes the discovery Plaintiffs seek. (Doc. 257 at 1-2.)
On August 5, 2010, Plaintiffs filed a Reply. (Doc. 258.)
Generally, judicial review of agency action is limited to review of the administrative record.
See Animal Defense Council v. Hodel, 840 F.2d 1432, 1438 (9th Cir. 1988);Friends of the Earth v. Hintz, 800 F.2d 822, 828 (9th Cir.1986). However, certain circumstances may justify expanding review beyond the record or permitting discovery. Id.; See, e.g., Public Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir.1982). The district court may inquire outside the administrative record when necessary to explain the agency's action. Hodel, 840 F.2d at 1438. "When such a failure to explain agency action effectively frustrates judicial review, the court may 'obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.'" Id. (quoting Camp v. Pitts, 411 U.S. 138, 143 (1973)). "The court's inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision." Id.
The district court may also inquire outside of the administrative record "when it appears the agency has relied on documents or materials not included in the record." Hodel, 840 F.2d at 1438 (quoting Camp, 411 U.S. at 143.) Additionally, discovery may be permitted if supplementation of the record is necessary to explain technical terms or complex subject matter involved in the agency action. Id.
Based upon a review of the case law and the parties' pleadings, it is evident the discovery issues raised in Plaintiffs' motion address the adequacy of the administrative record, and therefore the merits of this case. Accordingly, the questions Plaintiffs raise as to the factors and documents considered by the Navy, as well as the technical or complex nature of this case, are matters properly addressed by the judge reviewing the administrative record. Here, this Court is not charged with reviewing the administrative record. Consequently, Plaintiff's motion cannot properly be decided by Magistrate Judge Porter. However, District Judge Anello will review the administrative record in deciding the parties' cross-motions for summary judgment, set for a hearing on October 19, 2010. (Doc. 237.) Therefore, Plaintiffs' request to expand the administrative record through discovery should be addressed to Judge Anello.
On a related note, on September 14, 2009, the Court granted Plaintiffs' and Defendant San Diego Unified Port's Ex Parte Motion for Continuance of the February 17, 2009 Scheduling Order Dates Regarding Claims Alleged Against the Port District. (Doc. 174.) On October 2, 2009, District Judge Anello granted Plaintiffs' Motion to Remand Claims Alleged Against the San Diego Unified Port District. (Doc. 182.) Consequently, the Clerk terminated Defendant San Diego Unified Port District as a party to this action. (Id.) Therefore, the discovery dates set forth in the Court's September 14, 2009 no longer apply in this case.
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiffs' Motion to Permit Reliance Upon Expert Testimony and Limited Discovery is hereby DENIED without prejudice.
2. The Court hereby confirms the dates set forth in Judge Anello's July 15, 2010 briefing schedule for the parties' cross-motions for summary judgment. (Doc. 237.)
3. Based upon the Court's denial of Plaintiffs' Motion to Permit Reliance Upon Expert Testimony and Limited Discovery, and the inapplicability of the Court's discovery deadlines set forth in its September 14, 2009 Order, the Court hereby VACATES the discovery dates set forth in ...