Alegre v. Contreras

• Court: District Court, S.D. California
• Decided: November 22, 2021
• Docket: 3:16-cv-02442
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CINDY ALEGRE, et al., Case No.: 16-cv-2442-AJB-KSC Plaintiffs, 12 ORDER GRANTING IN PART AND v. 13 DENYING IN PART PLAINTIFFS’ UNITED STATES OF AMERICA, et al., MOTION TO SUPPLEMENT THE 14 Defendants. ADMINISTRATIVE RECORD 15 (Doc. No. 194) 16

17 Before the Court is Plaintiffs’ motion to supplement the administrative record. (Doc. 18 No. 194.) Defendants the United States of America, the United States Department of the 19 Interior, and three named federal officials in their official capacities (collectively, 20 “Defendants”) filed a response to Plaintiffs’ motion. (Doc. No. 199.) Plaintiffs did not file 21 a reply brief in support of their motion. 22 I. BACKGROUND 23 This dispute arises out of Plaintiffs’ contention that they are members of the San 24 Pasqual Band of Mission Indians (“Band”). On September 28, 2016, Plaintiffs filed their 25 original complaint with this Court, and after multiple rounds of motions and multiple 26 iterations of the Complaint, two claims of their Fourth Amended Complaint (“FAC”) 27 remain: (1) Plaintiffs’ Administrative Procedures Act claim that the Department of the 28 1 Interior–Bureau of Indian Affairs (“BIA”) acted arbitrarily and capriciously by failing to 2 properly adjudicate their enrollment applications and related issues, and (2) an 3 accompanying declaratory judgment claim. On August 10, 2021, Defendants filed the Final 4 Administrative Record (“FAR”) after several rounds of motions to supplement, complete, 5 and strike the administrative record. (Doc. No. 165.) This order follows. 6 II. DISCUSSION 7 The Ninth Circuit recognizes certain exceptions to the general rule that reviewing 8 courts are limited to considering only the materials in the administrative record. For claims 9 challenging final agency action, exceptions for supplementing the administrative record 10 are “widely accepted” but “narrowly construed and applied.” Lands Council v. Powell, 395 11 F.3d 1019, 1030 (9th Cir. 2005). The court may admit extra-record evidence only: (1) if 12 admission is necessary to determine “whether the agency has considered all relevant factors 13 and has explained its decision,” (2) if “the agency has relied on documents not in the 14 record,” (3) “when supplementing the record is necessary to explain technical terms or 15 complex subject matter,” or (4) “when plaintiffs make a showing of agency bad faith.” Id. 16 at 1030 (citing Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 17 (9th Cir. 1996)). “These limited exceptions operate to identify and plug holes in the 18 administrative record,” and “are narrowly construed and applied” to ensure “that the 19 exception does not undermine the general rule.” Id. (citations omitted). “Were the federal 20 courts routinely or liberally to admit new evidence when reviewing agency decisions, it 21 would be obvious that the federal courts would be proceeding, in effect, de novo rather 22 than with the proper deference to agency processes, expertise, and decision-making.” Id. 23 (emphasis added). 24 Plaintiffs request the Court to supplement the FAR with (1) letter dated July 24, 25 2015, from Javin Moore BIA-Southern California Agency (“SCA”) to McIntosh, which is 26 “crucial to Plaintiffs’ reply to Defendants’ Statute of Limitations defense,” (2) 1955 San 27 Pasqual Census and memorandum of Ray Davis (“Ray Davis Memorandum”) which 28 “shows that Modesta Martinez Contreras is 4/4 San Pasqual Indian blood,” (3) sign-in 1 sheets for the April 10, 2005 General Council meeting (“April 10 Sign-In Sheets”) because 2 they are “crucial for Plaintiffs to affirmatively prove that there was a quorum present at the 3 GC meeting wherein Plaintiffs were enrolled into the [Band],” (4) table of contents and all 4 twenty-two exhibits to the February 3, 2006 letter from BIA-SCA because “Plaintiffs are 5 entitled to know exactly what evidence the BIA considered in coming to their conclusion 6 that Modesta Martinez Contreras’ blood is not 4/4 San Pasqual Indian Blood,” and 7 (5) pages bates numbered 177 through 281 of the FAR, which Plaintiffs state “appear to be 8 missing.” (Doc. No. 194 at 2–3.) 9 As a preliminary matter, Defendants do not oppose the motion to supplement the 10 FAR with the Ray Davis Memorandum and the April 10 Sign-In Sheets. Additionally, 11 Defendants state the parties agree to add the following documents to the FAR: BIA 12 verification re: April 10 Sign-In Sheets with February 11, 2005 Band Enrollment 13 Committee’s letter to the BIA-SCA; April 20, 2005 Band letter to SCA; May 11, 2005 14 Notice of Appeal by Band to the Pacific Regional Director of the Department of Interior– 15 Indian Affairs (“PRO”); June 7, 2005 letter from SCA to Band; June 16, 2005 letter from 16 Band to PRO with exhibits; June 20, 2005 SCA memorandum re: records related to Band’s 17 appeal; June 23, 2005 PRO letter to Band; September 1, 2005 Table of Contents re: PRO’s 18 decision on Band’s appeal; and excerpts from Roberts Rules of Order Considered by PRO 19 in its September 1, 2005 denial of Band’s appeal. Because the federal rules provide that 20 the parties may, by stipulation, supply any omission from the administrative record, the 21 Court GRANTS Plaintiffs’ motion as to these documents. Fed. R. App. P. 16(b); see City 22 of Las Vegas, Nev. v. F.A.A., 570 F.3d 1109, 1116 n.4 (9th Cir. 2009). 23 Next, Defendants point out that the letter dated July 24, 2015, from Javin Moore 24 BIA-SCA to McIntosh and the 1955 San Pasqual Census are included in the FAR. (See 25 Doc. Nos. 165-7 at 12–13, 165-3 at 7.) As the Court finds this is the case, Plaintiffs’ motion 26 to supplement the record as to these documents is DENIED AS MOOT. 27 Defendants assert there is one document not already in the FAR to which Defendants 28 cannot agree with Plaintiffs to add to the FAR. (Doc. No. 199 at 3.) Specifically, 1 Defendants contend that while searching for the April 10 Sign-In Sheets, they discovered 2 one additional document that is privileged: a June 16, 2005 memorandum from BIA 3 attorney Robert McCarthy to BIA officers regarding the Band’s appeal of SCA’s May 6, 4 2005 decision declining to validate the actions contained in Resolution No. SP-041005-01. 5 (Id.) Because this document was not identified in Plaintiffs’ motion to supplement the FAR 6 and they have not filed a reply, the Court need not consider this as part of Plaintiffs’ motion. 7 Regarding Plaintiffs’ request to supplement the FAR with pages bates numbered 177 8 through 281 of the prior administrative record (see Doc. No. 147-1), the Court notes these 9 documents were stricken upon Plaintiffs’ own request. (See Doc. No. 139 at 4 (“Plaintiffs 10 hereby bring their Motion to Strike portions of the Administrative Record . . . for the 11 following reasons: . . . The Government placed 107 pages of extra-record documents into 12 the Administrative Record that they did not consider because they are not relevant to this 13 litigation and the documents have nothing to do with Plaintiffs’ claims. The documents are 14 not even historical. Therefore, Plaintiffs move to strike pages with Bates Numbers 177- 15 282.”); see also Alegre v. United States, No. 16-cv-2442-AJB-KSC, 2021 WL 4934982, at 16 *7 (S.D. Cal. July 29, 2021) (granting Plaintiffs’ motion to strike pages 177 through 282 17 of the administrative record)). As such, the Court DENIES Plaintiffs’ motion to 18 supplement the record with pages bates numbered 177 through 281 in the prior 19 administrative record. 20 Lastly, Defendants contend they have found no additional documents regarding the 21 February 3, 2006 letter from BIA-SCA. (Doc. No. 199 at 3–4.) Specifically, they state 22 “Federal Defendants continue to not know if there were any exhibits 1-11, but believe it is 23 most likely that there were not, and the memorandum’s Table of Contents simply started 24 numbering at 12 for an unknown reason.” (Id. at 4; see also Doc. No. 193 at 9 n.9.) 25 Therefore, the Court DENIES AS MOOT Plaintiffs’ request to supplement the record with 26 the table of contents and all twenty-two exhibits to the February 3, 2006 letter from BIA- 27 SCA. 28 /// 1 CONCLUSION 2 For all the reasons stated, the Court GRANTS IN PART AND DENIES IN PART 3 || Plaintiffs’ motion to supplement the administrative record. (Doc. No. 194.) Consistent 4 || with this order, Defendants are to refile the administrative record by December 6, 2021. 5 6 IT IS SO ORDERED. 7 ||Dated: November 22, 2021

9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28