Kiakombua v. McAleenan ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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MARIA M. KIAKOMBUA, et al., )
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Plaintiff, )
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v. ) Civil Action No. 19-cv-1872 (KBJ)
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KEVIN K. McALEENAN, in his official )
capacities as Acting Secretary of Homeland )
Security & U.S. Commissioner of Customs & )
Border Protection, et al., )
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Defendant. )
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MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFFS’ MOTION TO COMPEL
On July 10, 2019, this Court entered a Scheduling Order that, among other
things, required defense counsel to prepare a certification regarding the contents of the
administrative record. (Scheduling Order, ECF No. 22, at 1–2 (ordering a statement
attesting to the fact that, “based on personal knowledge, . . . the documents constitute a
true, correct, and complete copy of the whole record that was before the relevant
decisionmaker(s), including all documents and materials considered directly or
indirectly”); see also Pls.’ Mot. Regarding the Admin. R., ECF No. 19; Defs.’ Resp. to
Pls.’ Mot. Regarding the Admin. R., ECF No. 20.) Defendants subsequently served on
Plaintiffs a “Certified Index to [the] Administrative Record”; the non-publicly available
documents listed in that index; and a “Certification of the Administrative Record”
(hereinafter “Certification”) that was signed by the Deputy Chief of the Asylum
Division of the U.S. Citizenship and Immigration Services (“USCIS”), Ashley B.
Caudill-Mirillo. (Pls.’ Mot. to Compel, ECF No. 24, at 4.) In the Certification, Ms.
Caudill-Mirillo states:
I certify that, to the best of my personal knowledge, information, and
belief, the documents listed in the attached index are contained in the
administrative record. I further certify that, to the best of my personal
knowledge, information, and belief, the documents listed in the attached
index constitute a true, correct, and complete copy of the whole record
of non-privileged documents that were before the relevant
decisionmaker(s), including all documents and materials considered
directly or indirectly, in issuing the April 30, 2019, “Credible Fear of
Persecution and Torture Determinations” Lesson Plan. The copy of the
physical administrative record prepared by USCIS for use in this
litigation does not include publicly available statutes, regulations,
legislation, case law, Federal Register notices, and international treaties.
(Ex. A to Pls. Mot. to Compel, ECF No. 24-3, at 2.)
Before this Court at present is Plaintiffs’ Motion to Compel Defendants to
“comply with the Court’s Scheduling Order or, in the alternative, to produce a privilege
log of documents [Defendants] excluded from the record on privilege grounds.” (Pls.’
Mot. to Compel at 2.) The thrust of Plaintiffs’ motion is that Defendants have failed to
comply with the Court’s Scheduling Order, because Ms. Caudill-Mirillo’s certification
verifies the administrative record documents “to the best of [her] personal knowledge,
information, and belief[,]” rather than “based on personal knowledge,” as the Court’s
Scheduling Order requires. (Id. at 1.) For the reasons explained below, this Court is
satisfied that Defendants have complied with the certification requirements of the
Court’s Scheduling Order and will not require any additional action at this time.
Therefore, Plaintiffs’ Motion to Compel will be DENIED.
I.
Generally speaking, certification is a method of verifying the authenticity of
proffered evidence used in legal proceedings. See, e.g., Fed. R. Evid. 803(6)(D)
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(authorizing the admission of records of regularly conducted activity upon
certification); Fed. R. Evid. 902 (allowing the admission of various forms of certified
records as self-authenticating). In the world of administrative law, “there is no legal
authority compelling the defendants to certify an administrative record in the first
instance[.]” Cty. of San Miguel v. Kempthorne, 587 F. Supp. 2d 64, 77 (D.D.C. 2008).
However, judges do require that some form of official certification accompany
administrative record materials. See Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir.
2019) (“Rather than submitting a privilege log, on APA review, the agency must submit
‘[p]roper certification’ that the record is complete, which serves as ‘formal
representation by the [agency]’ that it duly evaluated all predecisional documents
before excluding them from the record.” (alterations in original)).
Notably, no standard or pattern certification language has been established with
respect to administrative records; all that is presently required is a “‘[p]roper
certification’ that the record is complete[.]” Id. (first alteration in original). For
example, courts have found certification to be proper where the certifying authority
merely states: “I hereby certify that the annexed is a true copy of the administrative
record[.]” See, e.g., id. (certification language drawn from Ex. 2 to Defs.’ Notice of
Admin. R. & Certified List of Admin. R. Docs., 15-cv-1220, ECF No. 7-2, at 2).
Likewise, the statement that, “to the best of my knowledge, the attached documents
constitute a true and correct copy of materials relating to the captioned case,” has been
found to suffice. See, e.g., Banner Health v. Sebelius, 945 F. Supp. 2d 1, 18 (D.D.C.
2013), vacated in part on other grounds, No. 10-cv-1638, 2013 WL 11241358 (D.D.C.
July 30, 2013) (certification language drawn from Ex. E to Pls.’ Renewed Mot. to
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Compel Def. to File the Complete Admin. R. and to Certify Same, 10-cv-1638, ECF No.
60-5, at 2; Ex. F to Pls.’ Renewed Mot. to Compel, 10-cv-1638, ECF No. 60-6, at 2)).
II.
Here, the relevant government official has certified the administrative record “to
the best of [her] personal knowledge, information, and belief” (Ex. A to Pls.’ Mot. to
Compel at 2), which, in this Court’s view, is virtually indistinguishable from a
certification “based on personal knowledge” (Scheduling Order at 1). Moreover, it is
by now well established that the actions of an administrative agency—including its
actions when it compiles the administrative record—are entitled to a presumption of
regularity. See Stand Up for California! v. U.S. Dep’t of Interior, 71 F. Supp. 3d 109,
123 (D.D.C. 2014); Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of
Eng’rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006). This means that, absent clear evidence of
bad faith or gross impropriety, it is presumed that the agency’s actions in compiling the
record are procedurally valid. See Stand Up for California!, 71 F. Supp. 3d at 124
(requiring “bad faith or other gross procedural irregularity” to overcome the
presumption of regularity); see also Banner Health, 945 F. Supp. 2d at 18 (finding no
authority for the proposition that a “purportedly inadequately worded certification” or
“absence of a certification” defeats the presumption of regularity).
The administrative record at issue in this case has been duly certified by a
government official whose title suggests that she is in a position to have the requisite
knowledge regarding the materials at issue. (See Ex. A to Pls.’ Mot. to Compel at 2.)
What is more, the agency that has been tasked with compiling the administrative record
is presumed to have proceeded in the regular course when it gathered, reviewed, and
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provided all of the non-privileged records that were before the relevant decisionmaker,
consistent with the Certification. Therefore, this Court sees no reason to question or
doubt Defendants’ compliance with the Court’s July 10, 2019, Scheduling Order at this
time.
The cases that Plaintiffs rely upon in their motion to compel do not persuade the
Court that more is required with respect to the government’s actions and
representations, largely because the cases Plaintiffs point to pertain to certifications that
were submitted in the context of a motion for summary judgment, rather than those that
courts have required when agencies prepare an administrative record. (See Pls.’ Mot. to
Compel at 6–7 (citing Harris v. Gonzales, 488 F.3d 442 (D.C. Cir. 2007), Londrigan v.
FBI, 670 F.2d 1164 (D.C. Cir. 1981), and United States ex rel. Folliard v. Govplace,
930 F. Supp. 2d 123, 128–29 (D.D.C. 2013)).) The affidavits and declarations that
accompany motions for summary judgment are not only compelled by law to be “made
on personal knowledge,” Fed. R. Civ. P. 56(c)(4), but they are also treated as
evidentiary support with respect to the existence of material facts, and thus necessarily
require a more substantial attestation regarding the declarant’s level of personal
knowledge. This Court is unaware of any precedent for applying the standards of Rule
56 to an agency’s certification of the administrative record, and Plaintiffs point to none.
Plaintiffs’ alternative request—i.e., that the Court require Defendants to compile
a “privilege log” that lists “documents they excluded from the record on privilege
grounds” (Pls.’ Mot. to Compel at 2)—fares no better. “[S]ince privileged and
deliberative materials are not part of the administrative record as a matter of law,
efforts in APA cases to obtain access to, or logs of, such materials are properly
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analyzed under the standard applicable to disclosure of extra-record material.” Stand
Up for California!, 71 F. Supp. 3d at 123. Thus, “to obtain a log of privileged and
deliberative materials excluded from the administrative record, plaintiffs must
overcome, with clear evidence, the presumption of regularity in the agency proceedings
by showing bad faith or other exceptional circumstances.” Id. (citing Conservation
Force v. Ashe, 979 F. Supp. 2d 90, 99 (D.D.C. 2013)); see also Nat’l Ass’n of Chain
Drug Stores v. U.S. Dep’t of Health & Human Servs., 631 F. Supp. 2d 23, 28 (D.D.C.
2009) (“Since the agency is entitled to a presumption that it has properly designated the
documents, and no bad faith or improper motive has been alleged or proven, defendants
are not required to provide plaintiffs with a privilege log detailing the documents.”).
And here, Plaintiffs have made no such showing.
Furthermore, and in any event, producing a privilege log would not appear to
remedy Plaintiffs’ purported concern that Defendants will “later seek to alter [the
administrative record’s] contents” (Pls.’ Mot. to Compel at 9), because items identified
as privileged would never have been included in an administrative record in the first
place, see, e.g., Am. Petrol. Tankers Parent, LLC v. United States, 952 F. Supp. 2d 252,
265 (D.D.C. 2013) (“It is well established in this District that materials protected by the
deliberative process privilege are not part of the Administrative Record for purposes of
review of agency action.” (citation omitted)); Pub. Emps. for Envtl. Responsibility v.
Beaudreu, No. 10-cv-1067, 2013 WL 12193038, at *3 (D.D.C. May 16, 2013) (“In this
Circuit, [deliberative] materials are, as a matter of law, not a part of the administrative
record.”). In other words, Defendants cannot, and would not, seek to include such
materials at a later date, so having a log of such excluded documents is not a cure for
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Plaintiffs’ concerns.
If the potential problem that has motivated Plaintiffs to file a motion to compel
either a more robust certification or a privilege log is that Defendants may later seek to
introduce and rely upon new record documents, despite having certified that the
administrative record is complete (see Pls.’ Mot. to Compel at 9), it is clear that the law
discourages such practice, see, e.g., Safari Club Int’l v. Jewell, 111 F. Supp. 3d 1, 4
(D.D.C. 2015) (“Supplementing administrative records in APA cases is the exception,
not the rule.”), and both parties are now on notice that this Court will enforce the law.
Defendants have duly certified that the administrative record that was served on
Plaintiffs on July 25, 2019, is “a true, correct, and complete copy of the whole record of
non-privileged documents that were before the relevant decisionmaker(s)” (Ex. A to
Pls.’ Mot. to Compel at 2); thus, the agency will have a steep hill to climb if at some
later date it seeks to expand the record, even if the request is based on the alleged
belated discovery of new information not personally known to the official who has
provided the contested certification. Cf. Attias v. Carefirst, Inc., 865 F.3d 620, 625
(D.C. Cir. 2017) (noting “the district court’s position as master of its docket”); Brune v.
IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988) (“The district court has ‘broad discretion’ in
its handling of discovery[.]” (quoting In re Multi–Piece Rim Prods. Liab. Litig., 653
F.2d 671, 679 (D.C. Cir. 1981))).
III.
In presenting the administrative record at issue here, a government official has
certified that, to the best of her knowledge, information, and belief, the record evidence
that has been presented is “a true, correct, and complete copy of the whole record of
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non-privileged documents that were before the relevant decisionmaker(s)[.]” (Ex. A to
Pls.’ Mot. to Compel at 2.) This Court will take the government at its word, and it
hereby reminds the parties that, certification or no, agencies have a solemn duty to
search for, collect, and compile all relevant and non-privileged records when an
administrative record is presented. See Walter O. Boswell Mem’l Hosp. v. Heckler, 749
F.2d 788, 792 (D.C. Cir. 1984) (“[T]he APA requires review of ‘the whole record.’”
(quoting 5 U.S.C. § 706 (1982)); Marcum v. Salazar, 751 F. Supp. 2d 74, 78 (D.D.C.
2010) (“A court should consider neither more nor less than what was before the agency
at the time it made its decision. It is the agency’s responsibility to compile for the
court all information it considered either directly or indirectly.” (citations omitted)).
Because this Court can, and will, enforce this obligation in the context of the instant
case if the need arises, it sees no reason to require anything more at this time with
respect to the government’s representations regarding the content of the record that it
has presented.
Accordingly, it is hereby
ORDERED that the Plaintiff’s Motion to Compel (ECF No. 24) is DENIED.
DATE: August 27, 2019 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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