United States District Court, E.D. California
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Eric Hideo Saiki, Radcliff & Saiki, LLP, Torrance, CA, for Plaintiff.
Tamra Tyree Moore, U.S. Department of Justice, Washington, DC, for Defendant.
ORDER RE PLAINTIFF'S MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD (DOC. 71)
LAWRENCE J. O'NEILL, District Judge.
Plaintiff Pinnacle Armor, Inc. (" Pinnacle" ) produces armor designed to protect buildings, vehicles, and the human body. Among Pinnacle's primary customers are local law enforcement agencies that often utilize federal subsidies to purchase body armor. Availability of at least one such subsidy is conditioned upon certification that the body armor was manufactured in compliance with the most recent standards set by the National Institute of Justice (" NIJ" ), an arm of the U.S. Department of Justice (" DOJ" ). In its Verified First Amended Complaint (" FAC" ), Pinnacle alleged that NIJ's decision to revoke certification for one of Pinnacle's products: (1) violated Pinnacle's procedural due process rights under the Fifth Amendment; and (2) was " arbitrary and capricious" in violation of the Administrative Procedure Act (" APA" ), 5 U.S.C. § 706(2)(A). Doc. 6.
On March 11, 2008, 2008 WL 686857, the district court dismissed both claims, holding that Pinnacle's interest in NIJ certification is not a protected property right under the due process clause, and that NIJ's certification decision is exempt from review under the APA because the certification process is " committed to agency discretion by law," 5 U.S.C. § 701(a)(2). Doc. 22. Pinnacle appealed. Doc. 24. The Ninth Circuit affirmed on the Fifth Amendment claim, but reversed and remanded on the APA claim, directing the district court to conduct further proceedings. Doc. 35, filed May 26, 2011, Pinnacle Armor, Inc. v. United States, 648 F.3d 708 (2011).
On May 31, 2012, Defendant, the United States of America, moved to dismiss the remaining APA claim pursuant to Fed.R.Civ.P. 12(b)(1), arguing that subsequent regulatory activity rendered moot any dispute about its decision under a now-superseded regulation. Doc. 53. That motion was denied without prejudice. Doc. 61.
On November 26, 2012, Defendant's third motion to dismiss this case as moot was denied, as was Defendant's motion for summary judgment that Plaintiff lacked standing to sue. Doc. 69. Defendant also moved for summary judgment on the merits of the APA claim, arguing that it lawfully revoked certification for Dragon Skin. Doc. 64-1. In response, Plaintiff requested deferral of any merits ruling to allow time for Plaintiff to obtain additional evidence. The Court denied Plaintiff's generic request for discovery. Doc. 69 at 22. Although the Court found the 56(d) showing to be " weak," the Court nevertheless deferred decision on the merits to " permit a closer examination of whether the Revised Administrative Record [ (" RAR" ) ], Doc. 60, should be supplemented to include documents already in Plaintiff's possession." Doc. 69 at 22.
A. Legal Standard.
The APA limits the scope of judicial review to the administrative record. 5 U.S.C. § 706 (directing the court to " review the whole record or those parts of it cited by a party" ); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (" The task of the reviewing court is to apply the appropriate APA standard of review ... to the agency decision based on the record the agency presents to the reviewing court." ). The appropriate scope of review is normally limited to " the administrative record in existence at the time of the [agency] decision and [not some new] record that is made initially in the reviewing court." Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.2005) (quoting Southwest Center for Biological Diversity v. United States Forest Service, 100 F.3d 1443, 1450 (9th Cir.1996)).
Nevertheless, the administrative record prepared by the agency may be supplemented by extra-record materials in an APA case under four narrow exceptions:
(1) when it needs to determine whether the agency has considered all relevant factors and has explained its decision;
(2) when the agency has relied upon documents or materials not included in the record; 
(3) when it is necessary to explain technical terms or complex matters; and
(4) when a plaintiff makes a showing of agency bad faith.
" These limited exceptions operate to identify and plug holes in the administrative record." Lands Council, 395 F.3d at 1030. Yet, " [t]he scope of these exceptions permitted by [Ninth Circuit] precedent is constrained, so that the exception does not undermine the general rule." Id.
Were the federal courts routinely or liberally to admit new evidence when reviewing agency decisions, it would be obvious that the federal courts would be proceeding, in effect, de novo rather
than with the proper deference to agency processes, expertise, and decision-making.
Id. This is because agency action, including designation and certification of an administrative record, is entitled to a " presumption of regularity." See McCrary v. Gutierrez, 495 F.Supp.2d 1038, 1041 (N.D.Cal.2007) (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 739-40 (10th Cir.1993) (while the agency " may not unilaterally determine what constitutes the administrative record" the courts " assume[ ] the agency properly designated the [AR] absent clear evidence to the contrary" )); see also Ctr. for Native Ecosystems v. Salazar, 711 F.Supp.2d 1267, 1274 (D.Colo.2010). The party seeking supplementation bears the burden of overcoming this presumption by " clear evidence." See Bar MK Ranches, 994 F.2d at 740; Glasser v. NMFS, 2008 WL 114913, *1 (W.D.Wash. Jan. 10 2008); In re Delta Smelt Consolidated Cases, 2010 WL 2520946, *2 (E.D.Cal. June 21, 2010).
B. " Undisputed" Documents.
Plaintiff seeks to supplement the RAR with a total of twenty-six (26) documents. Of these, Defendants agree that one document should be added to RAR and point out that three additional documents are already included in the RAR.
a. Document 8.
Document 8 is a highly redacted email thread dated June 28, 2007 regarding Dragon Skin. Defendant does not object to inclusion of Document 8 in the RAR and has attached an unredacted version to its opposition brief. The motion to supplement the record with the unredacted version of Document 8 is GRANTED.
b. Documents 9, 10, and 11.
Versions of Documents 9, 10, and 11 are already in the record. See RAR at 363, 364, 368, 427, 428. Plaintiff nevertheless requests that the record be supplemented to include their versions of these Documents because they " have in some cases been redacted differently." Doc. 80 at 1. This does appear to be the case with respect to Document 10, which is redacted in a significantly different way from the copy in the RAR at 368. The request to supplement is GRANTED as to Document 10.
The request to supplement is DENIED as to Document 9. Although the redactions are different, the version in the RAR at page 363 only redacts a single sentence indicating that the author has been in contact with the Office of General Counsel regarding the subject matter of the communication. This cannot possibly be relevant to the dispute in this case and the redaction was clearly made in accordance with the attorney client privilege.
The request to supplement is also DENIED as to Document 11, which appears to be identical to the version already in the record at RAR 427-30.
C. Disputed Documents.
Plaintiff offers several alternative grounds for supplementation as to most of the remaining 22 Documents:
• Document 1, e-mail dated May 11, 2006 from Murray Neal to Alex Sundstrom (aka Richard Sundstrom) for NIJ.
• Document 2, Build Sheets for: SOV2000.1 Mil Series Vest with certifications under 05 Interim Requirements;
and SOV2000.1/MIL3AF01 Series Vest with certifications under 05 Interim Requirements.
• Document 3, Build Sheets for: SOV2000 Mil Series Vest (pre-compliance testing); and SOV2000.1/MIL3AF01 Series Vest (pre-compliance testing).
• Document 4, Build Sheets for: Survivor 2000 Series SO Tactical Vest (all Aramid); Survivor 3000 Series SO Tactical Vest (all Polyethylene); Hybrid Mil Series SO Tactical Vest (Military Hybrid).
• Document 5, e-mail thread dated June 20, 2007 re Pinnacle Letter Regarding Labeling Discrepancies and Removal of SOV2000.1/MIL3AF01 from NIJ Compliance List.
• Document 6, Letter dated July 10, 2006 from Lance Miller, Deputy Director of the National Law Enforcement and Corrections Technology Center enclosing draft test protocols for flexible rifle defeating body armor under NIJ standard 0101.04 and NIJ 2005 interim requirements.
• Document 7, Final test protocols for flexible rifle defeating body armor dated December 19, 2006 under NIJ standard 0101.04 ...