The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 RONALD MADDERN, Case No. 21-cv-1298-MMA (BLM)
12 Plaintiff,
ORDER OVERRULING
13 v. PLAINTIFF’S OBJECTIONS TO
MAGISTRATE JUDGE’S JANUARY
14 LLOYD AUSTIN,
28, 2022 ORDER
15 Defendant.
[Doc. No. 25]
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18 Plaintiff Ronald Maddern (“Plaintiff”) brings this action against Defendant Lloyd
19 Austin, in his official capacity as Secretary of the United States Department of Defense
20 (“Defendant”), pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 et
21 seq. and the Due Process Clause of the Fifth Amendment of the U.S. Constitution. See
22 Doc. No. 21 (“FAC”). Plaintiff challenges the denial of his application for certain
23 TriCare health benefits available under 10 U.S.C. § 1075. See id.
24 On January 28, 2022, Magistrate Judge Barbara L. Major issued an order denying
25 Plaintiff’s motion for discovery related to allegedly improper ex parte contacts. See Doc.
26 No. 23. On February 14, 2022, Plaintiff objected to Judge Major’s order pursuant to
27 Federal Rule of Civil Procedure 72(a). See Doc. No. 25. Defendant responded to
28 Plaintiff’s objections, and Plaintiff replied to Defendant’s response. See Doc. Nos. 27,
1 28. The Court found the matter suitable for determination on the papers and without oral
2 argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 26. For the reasons set
3 forth below, the Court OVERRULES Plaintiff’s objections.
4 I. BACKGROUND1
5 Plaintiff is a retired Staff Sergeant with the United States Army who, because of
6 his service, qualifies for “health care benefits provided to retired uniformed service
7 members under the ‘TRICARE’ program” pursuant to 10 U.S.C. § 1075. FAC ¶¶ 7–8.
8 Plaintiff challenges the denial of his application for certain TriCare health benefits
9 following the insertion of two Vertiflex Superion (“Superion”) interspinous spacers,
10 which were “inserted [in]to [Plaintiff’s] spine to relieve pressure on some of the
11 vertebrae.” Id. ¶¶ 28, 36, 38, 39.
12 Judicial review of agency action under the APA is generally limited to review of
13 the administrative record. See 5 U.S.C. § 706. However, the Ninth Circuit has identified
14 four narrow exceptions where augmentation of the administrative record is justified:
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(1) if admission is necessary to determine whether the agency has considered
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all relevant factors and has explained its decision, (2) if the agency has relied
17 on documents not in the record, (3) when supplementing the record is
necessary to explain technical terms or complex subject matter, or (4) when
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plaintiffs make a showing of agency bad faith.
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20 Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. USDA, 499 F.3d
21 1108, 1117 (9th Cir. 2007) (citing Southwest Ctr. for Biological Diversity v. U.S. Forest
22 Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)). Here, Plaintiff “seeks discovery related to ex
23 parte contacts engaged in by the Secretary’s counsel (Ms. Greer), the ALJ who issued the
24 recommended decision below (Ms. Noel), and the final decision maker (Dr. Yale)/his
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1 office.” Doc. No. 9 at 2. Plaintiff contends that he has made a showing of agency bad
2 faith or improper behavior that warrants this extra-record discovery. Id. at 12.
3 On January 28, 2022, Magistrate Judge Barbara L. Major issued an order denying
4 Plaintiff’s motion for discovery. See Doc. No. 23. On February 14, 2022, Plaintiff filed
5 the instant objections to Judge Major’s discovery order. Doc. No. 25.
6 II. LEGAL STANDARD
7 A party may object to a non-dispositive pretrial order of a magistrate judge within
8 fourteen days after service of the order. See Fed. R. Civ. P. 72(a). The magistrate
9 judge’s order will be upheld unless “it has been shown that the magistrate [judge]’s order
10 is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). “The ‘clearly
11 erroneous’ standard applies to factual findings and discretionary decisions made in
12 connection with non-dispositive pretrial discovery matters.” Obesity Research Inst., LLC
13 v. Fiber Research Int’l, LLC, No. 15-cv-595-BAS (MDD), 2017 WL 3335736, at *1
14 (S.D. Cal. Aug. 4, 2017) (quoting F.D.I.C. v. Fid. & Deposit Co. of Md., 196 F.R.D. 375,
15 378 (S.D. Cal. 2000)). “Under Rule 72(a), [a] finding is clearly erroneous when,
16 although there is evidence to support it, the reviewing court on the entire evidence is left
17 with the definite and firm conviction that a mistake has been committed.” Waterfall
18 Homeowners Ass’n v. Viega, Inc., 283 F.R.D. 571, 575 (D. Nev. 2012) (internal quotation
19 marks and citation omitted). “An order is contrary to law when it fails to apply or
20 misapplies relevant statutes, case law or rules of procedure.” Id. (citation omitted).
21 “When reviewing discovery disputes, however, the Magistrate [Judge] is afforded
22 broad discretion, which will be overruled only if abused.” Columbia Pictures, Inc.
23 v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007) (internal citations and quotation
24 omitted).
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1 III. DISCUSSION
2 Plaintiff objects to Judge Major’s discovery order on six grounds. See Doc. No.
3 25. As an initial matter, the Court addresses the timeliness of Plaintiff’s objections. The
4 Court then addresses each of Plaintiff’s objections in turn.
5 A. Timeliness
6 Defendant argues Plaintiff’s objections to the Magistrate Judge’s order are
7 untimely because Plaintiff failed to file the objections to the order within the 14-day
8 deadline set forth by Federal Rule of Civil Procedure Rule 72(a). See Doc. No. 27 at 5–6.
9 An objecting party under Rule 72(a) must “file objections to the order within 14
10 days” of the magistrate judge’s order. Fed. R. Civ. P. 72(a). In computing time, the
11 Court must
12 (A) exclude the day of the event that triggers the period; (B) count every day,
including intermediate Saturdays, Sundays, and legal holidays; and (C)
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include the last day of the period, but if the last day is a Saturday, Sunday, or
14 legal holiday, the period continues to run until the end of the next day that is
not a Saturday, Sunday, or legal holiday.
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16 Fed. R. Civ. P. 6(a)(1).
17 Here, Judge Major issued a written ruling denying Plaintiff’s motion for discovery
18 on Friday, January 28, 2022. Doc. No. 23. Pursuant to Federal Rule of Civil Procedure
19 6, the 14-day period in which to object began the following day on Saturday, January 29,
20 2022. See Fed. R. Civ. P. 6(a)(1)(A). Starting the computation on Saturday, January 29,
21 2022, the Court counts each day. The final day of the 14-day objection window fell on
22 Friday, February 11, 2022—a California state holiday that triggered the Rule 6(a)(1)(C)
23 tolling provision.3 Plaintiff filed his objections on Monday, February 14, 2022, which
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26 3 See Fed. R. Civ. Pro. 6(a)(6)(c) (defining “legal holiday” as follows: “[F]or periods that are measured
after an event, any [ ] day declared a holiday by the state where the district court is located.”); Cal. Gov.
27 Code § 6700(a)(4) (“The holidays in this state are: . . . February 12, known as ‘Lincoln Day[.]”); Cal.
Code. Civ. Pro. § 135 (“If a judicial holiday falls on a Saturday or a Sunday, the Judicial Council may
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1 was the next day following February 11, 2022 that was not a Saturday, Sunday, or legal
2 holiday. Therefore, Plaintiff’s objections are timely.
3 B. Due Process
4 Judge Major found the following regarding the discovery standard applicable to
5 Plaintiff’s claims:
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7 Extra-record evidence may only be admitted when (1) the extra-record
documents are needed to ascertain “whether the agency considered all
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relevant factors and has explained its decision,” (2) the extra-record
9 documents were relied on by the agency for decision-making, (3) the extra-
record documents are needed to explain technical terms or complex subject
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matter,” or (4) the plaintiff has made “a showing of agency bad faith.” Lands
11 Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (quoting Sw. Ctr. for
Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.
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1996)). . . .
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To obtain discovery under the fourth exception, . . . [T]he correct
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standard is whether Plaintiff has produced evidence demonstrating a “strong
15 showing” of bad faith or improper behavior. See Dep’t of Commerce, 139 S.
Ct. at 2573–2574 (“[o]n a strong showing of bad faith or improper behavior,
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such an inquiry may be warranted and may justify extra-record discovery”).
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18 Doc. No. 23 at 4–5. Plaintiff argues that “discovery related to [violation of the Due
19 Process Clause of the United States Constitution] is guided only by the Federal Rules of
20 Civil Procedure [and] does not arise under the APA.” Doc. No. 25 at 4.
21 As an initial matter, Defendant argues that Plaintiff “is precluded from asserting
22 this objection, because he never raised this argument in his briefing on the underlying
23 discovery motion.” Doc. No. 27 at 10. In his reply, Plaintiff urges that the issue was
24 raised below in his discovery motion. Doc. No. 28 at 2 (citing Doc. No. 9 at 8).
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Branch of Cal., https://www.courts.ca.gov/holidays.htm (last visited Apr. 11, 2022) (stating that, in
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1 Plaintiff’s discovery motion is silent on the issue of which discovery standard
2 applies to constitutional claims brought in connection with an APA case. Even assuming
3 Plaintiff implicitly raised the objection in his discovery briefing, the Court finds
4 Plaintiff’s argument unpersuasive. The Ninth Circuit has not addressed this issue. “A
5 few district courts faced with both APA and constitutional claims determined that the
6 constitutional claims ‘fundamentally overlap’ with the APA claims and thus discovery
7 was unnecessary.” California v. United States Dep’t of Homeland Sec., Case Nos. 19-cv-
8 04975-PJH, 19-cv-04980-PJH2020, U.S. Dist. LEXIS 57540, at *66–67 (N.D. Cal. Apr.
9 1, 2020) (citations omitted). “Alternatively, some courts have permitted some discovery
10 when the APA and constitutional claims diverge in some meaningful way.” Id. at 67.
11 Plaintiff satisfies neither test as his due process claim turns on precisely the same facts as
12 the rest of the First Amended Complaint: the timeliness and basis of the agency’s
13 decisions. See Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Service, 58 F. Supp.
14 3d 1191, 1238–41 (D.N.M. 2014) (concluding that the plaintiff’s constitutional claims
15 were subject to the APA’s discovery provisions because “[t]he case before the Court is an
16 appeal of an agency action in every respect: that the appeal alleges constitutional
17 violations as well as statutory ones does not take it outside of the APA”).
18 As his only support for his argument that his due process claim is entitled to a
19 different discovery standard than his APA claims, Plaintiff cites Sierra Club v. Trump,
20 929 F.3d 670, 698–99 (9th Cir. 2019) and Washington v. U.S.D.H.S., No. 4:19-CV-5210-
21 RMP, 2020 WL 4667543, at * 5–7 (E.D. Wash. Apr. 17, 2020) in his reply brief.
22 However, Sierra Club does not address discovery. Additionally, U.S.D.H.S. is not
23 binding, and as Plaintiff himself acknowledges, goes only as far as to say discovery for
24 constitutional claims challenging an agency decision “may be appropriate.” Doc. No. 28
25 at 3 (citing U.S.D.H.S., 2020 WL 4667543, at *5–7). Moreover, in allowing discovery,
26 the U.S.D.H.S. court concluded that the “States’ allegations regarding their equal
27 protection claim are dissimilar from, and do not fundamentally overlap with, their
28 allegations regarding their APA claims.” U.S.D.H.S., 2020 WL 4667543, at *7.
1 U.S.D.H.S. is therefore uninstructive here, where Plaintiff’s APA claim and due process
2 claim unquestionably converge.
3 In sum, Plaintiff does not cite, and the Court is unaware of, any binding case law
4 suggesting that Plaintiff’s due process claim, which is deeply intertwined with his APA
5 claims, is entitled to the more generous discovery standard allotted under Federal Rule of
6 Civil Procedure 26 rather than the APA standard applied by Judge Major in her discovery
7 order. Accordingly, the Court concludes that Judge Major’s order is neither clearly
8 erroneous nor contrary to law in this respect. Cf. Jarita Mesa Livestock Grazing Ass’n,
9 58 F. Supp. 3d at 1238–41 (“[T]o hold otherwise . . . would be to incentivize every
10 unsuccessful party to agency action to allege bad faith, retaliatory animus, and
11 constitutional violations to trade the APA’s restrictive procedures for the more
12 evenhanded ones of the Federal Rules of Civil Procedure”). Therefore, the Court
13 OVERRULES Plaintiff’s objection on this ground.
14 C. Allegedly Improper Ex Parte Contacts
15 Judge Major found the following regarding Plaintiff’s argument that discovery is
16 warranted because of alleged ex parte contacts:
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18 Plaintiff has not identified any improper ex parte communication. See Mot.;
Reply. Rather, Plaintiff merely asserts the conclusory argument that because
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there were ex parte communications regarding the status of the case and other
20 procedural matters, there must have been improper ex parte communications
relevant to the merits of the proceeding. This is insufficient. See Mayor and
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City Council of Baltimore, 429 F. Supp. 3d at 138 (“mere allegations of bad
22 faith are inadequate to overcome the presumption of regularity accorded to
agency action.”); see also Moralez, 2017 WL 2264855, at *2 (“A plaintiff
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seeking discovery based on allegations of bad faith or prejudgment must make
24 allegations that are ‘serious’ and ‘nonconclusory,’ ... or present ‘independent
evidence of improper conduct.”) (quoting Air Transp. Ass'n of Am., Inc., 2010
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WL 8917910, at *2).
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27 Doc. No. 23 at 7–8. Plaintiff argues that he is entitled to discovery because “[t]he newly
28 revealed email traffic between Ms. Greer and ALJ Noel reveals, at least, Ms. Greer’s
1 ‘participation’ in Dr. Yale’s decision.” Doc. No. 25 at 4. Plaintiff provides no support
2 for this assertion beyond a bald and unilluminating citation to the Supreme Court’s
3 decision in Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019). See Doc. Nos. 25 at
4 4, 28 at 5. Moreover, Plaintiff fails to explain how Judge Major purportedly erred in her
5 conclusion beyond simply stating that she did.4 The Court concludes that Judge Major’s
6 order is neither clearly erroneous nor contrary to law in this respect. Cf. Raz Inland
7 Navigation Co., Inc. v. I.C.C., 625 F.2d 258, 260 (9th Cir. 1980) (“Congress recognized [
8 ] that not all communications between agency decision-makers and interested parties
9 would contravene the purposes of the proscription of ex parte communications.
10 Excluded from the proscribed communications were those contacts that do not affect the
11 way a given case is decided.”). Therefore, the Court OVERRULES Plaintiff’s objection
12 on this ground.
13 D. “Groundless”/“Frivolous”
14 Regarding Plaintiff’s argument that the agency decisions are “groundless” and
15 “frivolous,” Judge Major concluded the following:
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17 Plaintiff’s second argument is that Defendant engaged in bad faith conduct or
improper behavior based upon the alleged delay in issuing the final decision,
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inadequacy of the final decision, and assertion that the decisions are
19 “’groundless’, ‘obviously wrong’, and/or ‘frivolous.’” Mot. at 12–14; Reply
at 5–7. The alleged bases for finding bad faith or improper conduct are the
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same arguments and claims Plaintiff asserted in his complaint and likely will
21 assert in the dispositive motion that he files. As a result, Plaintiff is requesting
that the undersigned judge make a determination of the merits of his case prior
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to the filing of any dispositive motion and/or to permit him to conduct
23 discovery based upon the mere fact that he has made the allegations. . .
Plaintiff’s arguments do not justify discovery in this APA litigation.
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27 4 Plaintiff’s conclusory argument that he has demonstrated “improper behavior” warranting extra-record
discovery because “behavior in violation of 5 U.S.C. § 554 would be ‘improper’” is similarly
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1 Doc. No. 23 at 8. In the Rule 72(a) objections before the Court, Plaintiff again urges that
2 discovery is warranted because the “recommended decision of ALJ Noel and the final
3 decision of Dr. Yale” are “‘groundless’ and ‘frivolous’” because the decisions “are
4 premised on the idea that the lack of an exclusion for the Superion product represents an
5 ‘administrative defect’ and loophole.” See Doc. No. 25 at 5.
6 Plaintiff’s arguments are unpersuasive; Plaintiff provides no case law suggesting
7 that his own characterization of the agency decisions as “groundless” can, without more,
8 justify extra-record discovery. Moreover, in concluding that Plaintiff’s “groundlessness”
9 and “frivolousness” arguments do not justify extra-record discovery in this case, Judge
10 Major correctly declined to make a determination of the merits of Plaintiff’s case; Rule
11 72(a) is not the appropriate vehicle for raising claim or defense dispositive matters.
12 Plaintiff therefore fails to show that Judge Major’s order is clearly erroneous or
13 contrary to law in this regard. Accordingly, the Court OVERRULES Plaintiff’s
14 objection on this ground.
15 E. Case Citations Deemed “Inapplicable”
16 In his discovery motion, Plaintiff cites Brown v. Sullivan, 916 F.2d 492 (9th Cir.
17 1990), Rodriguez v. United States, 542 F.3d 704, 710 (9th Cir. 2008), and Ibrahim v.
18 U.S.D.H.S., 912 F.3d 1147 (9th Cir. 2019) in support of his argument that the agency’s
19 decisions were made in “bad faith.” Doc. No. 9 at 12–13. Judge Major concluded the
20 following regarding those cases: “Plaintiff relies on inapplicable law regarding the
21 awarding of attorney’s fee and general civil litigation.” See Doc. No. 23 at 8.
22 In the instant Rule 72(a) objections, Plaintiff argues: “While not providing another
23 definition or test, the Magistrate [Judge] describes these decisions as ‘inapplicable.’
24 Respectfully, that is in error.” Doc. No. 25 at 6 (citation omitted). Plaintiff urges that he
25 has made a “bad faith” showing “using the standards articulated by the Ninth Circuit.”
26 Id. at 6.
27 Neither the Supreme Court nor the Ninth Circuit have squarely defined “bad faith”
28 in the “bad faith exception” context. However, the Supreme Court has stated that in
1 order to fall within the “bad faith” exception, Plaintiffs must make a “strong showing of
2 bad faith or improper behavior[,]” Dep’t of Commerce, 139 S. Ct. at 2573–74, which is
3 precisely the standard stated in Judge Major’s order, see Doc. No. 23 at 5. Furthermore,
4 as Judge Major noted in her discovery order, see Doc. No. 23 at 8, Brown, Rodriguez, and
5 Ibrahim address “bad faith” in the context of attorney’s fee awards. Brown, 916 F.2d at
6 495; Rodriguez, 542 F.3d at 709; Ibrahim, 912 F.3d at 1153. Plaintiff does not cite, and
7 the Court is unaware of, any binding case law suggesting that “bad faith” in an attorney’s
8 fee award context is synonymous with “bad faith” in the APA extra-record discovery
9 context. Absent a contrary indication from the Ninth Circuit, the cases proffered by
10 Plaintiff therefore do not provide a controlling definition of “bad faith” for this APA
11 case.
12 Therefore, the Court concludes that Judge Major’s order is neither clearly
13 erroneous nor contrary to law in this respect. See Bark v. Northrop, 2 F. Supp 3d 1147,
14 1153 (D. Or. 2014) (“[T]he bad faith exception to the record rule, as with the other
15 exceptions, only comes into play if the plaintiff can adequately justify their discovery
16 request. . . . [p]laintiffs’ conclusory allegation does not meet this burden.”). Accordingly,
17 the Court OVERRULES Plaintiff’s objection on this ground.
18 F. Greene v. Babbitt
19 Regarding Plaintiff’s argument that Greene v. Babbitt, 943 F. Supp. 1278 (W.D.
20 Wash. 1996) provides a basis for the Court to conclude that impermissible ex parte
21 communications occurred, see Doc. No. 25 at 7, Judge Major found the following:
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23 Plaintiff cites to Greene v. Babbitt, 943 F. Supp. 1278 (W.D. Wash. 1996) to
support his argument that communications between Ms. Greer, ALJ Noel, and
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Dr. Yale are improper and justify discovery. Mot. at 10; see also Reply at 5-
25 6. However, Greene is distinguishable from the instant matter. In Greene, the
allegations of improper ex parte communications were more than just
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allegations and conclusory statements.
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1 Doc. No. 23 at 7 fn.3. Plaintiff argues that “[w]hether this case will represent a situation
2 similar to Greene will be known after discovery, not before.” Doc. No. 25 at 7 (emphasis
3 omitted).
4 Plaintiff’s argument is unpersuasive. The Greene opinion proffered by Plaintiff is
5 silent on the issue of whether to allow extra-record discovery in an APA case. Moreover,
6 Greene is not binding on this Court. Thus, the Court concludes that Judge Major’s order
7 is neither clearly erroneous nor contrary to law in this respect. Therefore, the Court
8 OVERRULES Plaintiff’s objection on this ground.
9 G. Scope of Discovery
10 Judge Major found the following regarding the scope of Plaintiff’s discovery
11 request:
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13 Plaintiff seeks written discovery, including production of emails “between
Ms. Greer, ALJ Noel, and Dr. Yale/his office” and “depositions of Ms. Greer,
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ALJ Noel, and Dr. Yale/his office and anyone else Ms. Greer/ALJ Noel had
15 communications with about this matter.” . . . The requested discovery is
overbroad and unwarranted in this APA case. See Bark, 2 F. Supp. 3d at 1152
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(quoting Comprehensive Cmty. Dev. Corp., 890 F. Supp. 2d at 312 (under the
17 APA, “the standard discovery tools of civil litigation—including depositions
[and] interrogatories . . . . do not apply”).
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20 Doc. No. 23 at 8–9 (citing Doc. No. 9). Plaintiff argues that “[t]there is simply no basis
21 to conclude that the requested discovery is ‘overbroad’ and/or ‘unwarranted.’” Doc. No.
22 25 at 8.
23 “The general rule is ‘that agency actions are to be judged on the agency record
24 alone, without discovery.’” Jennings v. Mukasey, 511 F.3d 894, 900 (9th Cir. 2007)
25 (quoting Public Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir.1982)). In light of
26 the foregoing analysis, Plaintiff has not demonstrated that his claims are entitled to any
27 extra-record discovery, nor demonstrated that Judge Major erred in denying Plaintiff
28 access to the full complement of general civil litigation discovery tools such as
1 || depositions and interrogatories, which are normally unavailable for APA claims. See id.
2 || Accordingly, the Court concludes that Judge Major’s order is neither clearly erroneous
3 ||nor contrary to law in this regard. Therefore, the Court OVERRULES Plaintiff's
4 || objection on this ground.
5 IV. CONCLUSION
6 Based on the foregoing, the Court finds that Judge Major’s January 28, 2022
7 || discovery order is neither clearly erroneous nor contrary to law. Accordingly, the Court
8 || OVERRULES Plaintiff's objections.
9 IT IS SO ORDERED.
10 || Dated: April 22, 2022
i [Mihuk DM - ills
12 HON. MICHAEL M. ANELLO
13 United States District Judge
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