CINDY K. JORGENSON, District Judge.
Pending before the Court is the Motion for Leave to Take Discovery (Doc. 49) filed by Carmen Figueroa Otero ("Otero") and Alberto Otero (collectively, "the Oteros"). A response (Doc. 51) and a reply (Doc. 53) have been filed. Also pending before the Court is the Motion to Supplement Administrative Record (Doc. 50) and the Motion for Extension of Time and for Status Conference (Doc. 52).
On February 16, 2016, Otero filed a Complaint for Declaratory and Injunctive Relief against Jeh Johnson, Secretary for the Department of Homeland Security, Leon Rodriguez, Director for the United States Citizenship and Immigration Services ("CIS"), John Kramer ("Kramer"), District Court Director for the Phoenix CIS, and Julie Hashimoto, Director for the Tucson Field Office of CIS (collectively, "Defendants").
The United States Department of Homeland Security ("DHS"), Citizenship and Immigration Services, Tucson Field Office ("TFO"), denied Otero's application on September 28, 2015, stating it was denying the application because Otero had not been "inspected and admitted or paroled into the United States," because she had used her improperly-issued U.S. passport to gain entry into the country as a U.S. citizen in May 2013.
Otero requested the matter be reopened or reconsidered on October 16, 2015. Defendants denied Otero's request on December 18, 2015. On June 15, 2016, Defendants issued a decision that states:
Motion for Leave to File Second Amended Complaint, Exhibit K (Doc. 18-12). Otero asserts Defendants had scheduled a re-interview of her for October 28, 2016. Otero asserts:
Proposed SAC (Doc. 34), p. 14 (emphasis removed).
On October 27, 2016, this Court granted Otero's request for a temporary restraining order (Docs. 29 and 31). On November 10, 2016, a Second Amended Complaint (Doc. 34) was filed. Plaintiff Alberto Otero was added to the action in the Second Amended Complaint. The Oteros again request preliminary and final injunctive relief and request this Court set aside USCIS' flawed findings of fact and conclusions of law and order the matter remanded to USCIS for readjudication of Otero's adjustment of status application consistent with the Court's findings and order. Alternatively, the Oteros request this Court to issue a judgment declaring that Defendants violated Otero's due process rights by failing to allow her to issue a brief in opposition to Defendants' motion to reopen her proceedings when such reopening may result in an adverse decision against Otero. The Oteros also request the Court retain jurisdiction during the adjudication of the adjustment of status application in order to ensure compliance with the Court's orders and award reasonable costs and attorneys' fees.
Pursuant to an agreement of the parties, the Court ordered the temporary restraining order be converted to a preliminary injunction on November 28, 2016.
On December 28, 2016, Defendants filed a Motion to Dismiss Second Amended Complaint (Doc. 38). A response (Doc. 40) and a reply (Doc. 49) have been filed.
On January 9, 2017, the Court ordered case management deadlines in this case. Included in the Order was a directive that "Plaintiff may file a motion for leave to take discovery after review of the administrative record." January 9, 2017, Order (Doc. 41).
On February 21, 2017, the Oteros filed a Motion for Discovery (Doc. 49). The Oteros assert that at a minimum, Officer Nelson should be subject to deposition. A response (Doc. 51) and a reply (Doc. 53) have been filed. Also on February 21, 2017, the Oteros filed an Unopposed Motion to Supplement Administrative Record (Doc. 50). The Court will grant this unopposed motion.
On March 9, 2017, the Oteros filed a Motion for Extension of Time to File Dispositive Motions and Request for Status Conference (Doc. 52).
The Administrative Procedures Act ("APA") provides for judicial review of any "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. A reviewing court "shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In other words:
Native Vill. of Point Hope v. Jewell, 740 F.3d 489, 495 (9th Cir. 2014) (citation omitted).
Review of agency action under the APA is generally limited to review of the administrative record. 5 U.S.C. § 706 ("In making . . . determinations, the court shall review the whole record or those parts of it cited by a party . . ."). "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." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). "[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Id. (citation omitted). "The `whole' administrative record . . . consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position." Thompson v. United States Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (further internal quotation marks and citation omitted); Oropeza v. C.I.R., 402 F. App'x 221, 222 (9th Cir. 2010).
"It is widely recognized that agencies, in preparing and submitting administrative records that form the basis for judicial review, enjoy a presumption of regularity." James N. Saul, Overly Restrictive Administrative Records and the Frustration of Judicial Review, 38 Envtl. L. 1301, 1311 (2008) (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993); see also McCrary v. Gutierrez, 495 F.Supp.2d 1038, 1041 (N.D. Cal. 2007) ("An agency's designation and certification of the administrative record is treated like other administrative procedures, and thus entitled to a presumption of administrative regularity.").
However, the Ninth Circuit has determined that certain circumstances may justify expanding review beyond the record or permitting discovery. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988). District courts may consider extra-record evidence in limited circumstances:
Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (citation omitted). The exceptions from the general rule "are narrowly construed and applied." Id. Additionally, the burden is on the party seeking to introduce the extra record materials. San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 993 (9th Cir. 2014).
The Oteros assert extra-record information was considered by the agency in this case:
Motion (Doc. 49), p. 8.
The Oteros argue ICE intervened when the unidentified SDDO wrote to Ms. Wheeler, "It is very important that I speak to you regarding this application. There is fraud involved and I need to bring it to your attention." AR-0236 (Doc. 43-2, p. 50). The Oteros assert the communication is obviously significant to the case, since it is included as part of the administrative record. However, there is no mention of fraud in the USCIS decision to deny Otero's application for adjustment of status or her motion to reconsider. Further, the Oteros point out that Otero (through counsel) advised USCIS that the Department of State and the Department of Justice were conducting a criminal investigation (the Department of State alleged that, in 2013, Otero's mother had stated Otero had knowledge of her Mexican birth).
The Oteros point out that the eight months between the conclusion of Otero's adjustment interview and the denial of her I-485 application, in light of the fact that USCIS had considered derogatory information and allegations from ICE and the Department of State, raises the question of whether USCIS consider any additional extra-record information form ICE, the Department of State, or the U.S. Attorney's Office. The Oteros argue that the record appears to show that Otero's Motion to Reconsider had initially been marked for approval, but was subsequently denied. The Oteros asserts one USCIS official was overruled by a superior official. However, the Oteros assert the circumstances surrounding the decision-making process cannot be discerned from the administrative record.
Defendants assert the Otero's allegations that USCIS relied on outside information are baseless. Defendants summarize the National Benefits Center's role in preparing applications, including forwarding applications to a USCIS Field Office. However, Defendants state the decision to deny Otero's application was made by Hashimoto based, in part, on a recommendation from Nelson. The administrative record, therefore, is comprised of the information available to and relied upon, directly or indirectly, by Hashimoto and Nelson. Defendants state:
Response (Doc. 51), pp. 6-7.
"Normally there must be a strong showing of bad faith or improper behavior before the court may inquire into the thought processes of administrative decisionmakers." Animal Defense Council, 840 F.2d at 1437 (citation omitted). "A plaintiff seeking discovery based on allegations of bad faith or prejudgment must make allegations that are `serious' and `nonconclusory,' . . . or present `independent evidence of improper conduct." Air Transp. Ass'n of Am., Inc. v. Nat'l Mediation Bd., No. CIV.A. 10-0804 PLF, 2010 WL 8917910, at *2 (D.D.C. June 4, 2010) (citations omitted). An agency acts in bad faith when it engages in wilful misconduct. Iron Mountain Mines, Inc., 987 F.Supp.at 1260-61. The bad faith exception "only comes into play if the plaintiff can adequately justify their discovery request." Bark v. Northrop, et al., 2 F.Supp.3d 1147, 1153 (D.Or. 2014). Indeed, "a party seeking to depose an administrative official must show specific facts to indicate that the challenged action was reached because of improper motives." Udall v. Washington, Virginia and Maryland Coach Co., 398 F.2d 765 (D.C. Cir. 1968).
While the Court does not disagree with Defendants that the Oteros' request is speculative, the Oteros have pointed to specific facts justifying their request. Specifically, the SDDO email indicates that a conversation regarding Otero and alleged fraud may have occurred prior to the decisions issued in this case. The parties have not pointed to anything in the record to indicate whether or not such a conversation took place. Indeed, by stating that ". . . even if the ISO in Missouri spoke with the DSSO in Phoenix . . .," Response (Doc. 51), pp. 6-7, Defendants appear to acknowledge that the record does not establish whether any conversation, documents, or other follow-up resulted from the email. While this may not be indicative of bad faith or improper motives, it is indicative Defendants may have relied on documents or other information not in the record. Indeed, the Ninth Circuit has stated that, "if an Agency's administrative record is incomplete, we would expect litigants to seek to supplement the record in the agency before seeking to expand the record before the district court." Lands Council v. Powell, 395 F.3d 1019, 1030 n. 10 (9th Cir. 2005). The Court finds it appropriate to permit limited discovery to ascertain if Defendants received additional or follow-up information from the SDDO email.
Defendants argue remand is appropriate if the record is unclear. Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 654 (1990). However, the purpose of this limited discovery is to ensure all information considered by Defendants is part of the record (and, if warranted, present evidence of bad faith), not to provide information to this Court to conduct a de novo review. Rather, this will permit the Court "to ensure that [Defendants' action are] not arbitrary and capricious or otherwise contrary to law[.]" Id.; see also Puerto Rico Pub. Hous. Admin. v. U.S. Dep't of Hous. & Urban Dev., 59 F.Supp.2d 310, 328 (D.P.R. 1999) ("a plaintiff who is entitled to judicial review of its constitutional claims under the APA is entitled to discovery in connection with those claims.") (citing Webster v. Doe, 486 U.S. 592, 604, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988)).
Although the Oteros seek to conduct depositions, the Court finds written discovery will adequately provide the additional information sought by the Oteros. Indeed, as inquiry into the mental and deliberative processes is prohibited, written discovery will adequately afford the Oteros an opportunity to discover if decision-makers received additional information that is not part of the administrative record. Accordingly, the Court will permit the Oteros to conduct limited discovery as follows:
Motion for Extension of Time to File Dispositive Motions and Status Conference (Doc. 52)
The Court will grant the requested extension, but deny the request for a status conference.
Accordingly, IT IS ORDERED:
