Gearhart v. United States Department of Education ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 JEFFREY GEARHART, 8 Case No. 19-cv-00750-YGR Plaintiff, 9 ORDER DENYING PLAINTIFF’S MOTION v. FOR DISCOVERY AND SUPPLEMENTATION 10 OF RECORD WITHOUT PREJUDICE; UNITED STATES DEPT. OF EDUC., ET AL., REVISING SUMMARY JUDGMENT BRIEFING 11 SCHEDULE Defendants. 12 Re: Dkt. No. 46 13 Plaintiff Jeffrey Gearhart (“Gearhart”) moves the Court for an order permitting him to 14 conduct discovery to supplement the administrative record in this matter. (Dkt. No. 46.) 15 Gearhart’s complaint seeks review of final agency decisions of the United States Department of 16 Education (“the Department”) under the Administrative Procedure Act (“APA”) on the grounds 17 that the decisions were “arbitrary and capricious, an abuse of discretion, or otherwise not in 18 accordance with the law.” 5 U.S.C. § 706(2)(A). Plaintiff contends the administrative records 19 lodged by the Department—three records totaling 132 pages (Dkt. Nos. 39, 40, 41)—are 20 incomplete and insufficient for the Court to review the Department’s alleged lack of rational 21 decision-making. Having considered the motion and opposition thereto, and for the reasons stated 22 herein, the motion is DENIED WITHOUT PREJUDICE. 23 Plaintiff states that he seeks to “supplement the record with his account of “non-recorded 24 oral evidence,” correspondence from third parties relating to the validity of the student loan debt, 25 and seeks an opportunity to engage in limited discovery, written and oral.” (Motion, Dkt. No. 46, 26 at 2:9-12.) Plaintiff notes that the administrative records do not include evidence of statements 27 made in phone calls between him and the Department. He seeks discovery in the form of 1 challenges to the Government’s garnishment orders arising from federal student loans he received 2 in 2003 and 2008. 3 Under long-standing Supreme Court precedent, judicial review of agency decisions must 4 be based upon the full administrative record before the agency when it made its decision. See 5 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other 6 grounds by Califano v. Sanders, 430 U.S. 99 (1977); Thompson v. U.S. Dep't of Labor, 885 F.2d 7 551, 555–56 (9th Cir. 1989). The validity of an agency’s findings will “stand or fall on the 8 propriety” of its decision based upon the full administrative record and the applicable standard of 9 review, i.e. whether the decision was arbitrary, capricious, an abuse of discretion, or otherwise not 10 in accordance with law. Camp v. Pitts, 411 U.S. 138, 143 (1973) (citing 5 U.S.C. § 706(2) (A)). 11 “If that finding is not sustainable on the administrative record made, then the [agency’s] decision 12 must be vacated and the matter remanded to [it] for further consideration.” Id.; see also Fla. 13 Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“If the record before the agency does not 14 support the agency action, if the agency has not considered all relevant factors, or if the reviewing 15 court simply cannot evaluate the challenged agency action on the basis of the record before it, the 16 proper course, except in rare circumstances, is to remand to the agency for additional investigation 17 or explanation.”) 18 “Generally, judicial review of agency action is limited to review of the record on which the 19 administrative decision was based.” Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 20 1989). Courts in the Ninth Circuit will permit “expansion of the administrative record in four 21 narrowly construed circumstances: (1) supplementation is necessary to determine if the agency has 22 considered all factors and explained its decision; (2) the agency relied on documents not in the 23 record; (3) supplementation is needed to explain technical terms or complex subjects; or (4) 24 plaintiffs have shown bad faith on the part of the agency.” Fence Creek Cattle Co. v. U.S. Forest 25 Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). 26 Under very limited circumstances, a court “may require the administrative officials who 27 participated in the decision to give testimony explaining their action.” Citizens to Pres. Overton 1 430 U.S. 99 (1977). Again, such testimony is required only upon a strong showing that “the bare 2 record [does] not disclose the factors that were considered or the Secretary's construction of the 3 evidence,” and “bad faith or improper behavior.” Id. So, for instance, evidence showing that the 4 proffered basis for an agency’s decision is pretextual may justify extra-record discovery. Dep't of 5 Commerce v. New York, __ U.S. __, 139 S. Ct. 2551, 2574 (2019) (evidence that rationale for 6 census question offered by Secretary played insignificant role in decision established prima facie 7 showing of pretext that justified ordering deposition of Acting Assistant Attorney General). 8 Here, plaintiff has failed to identify specifically any documents he contends should 9 supplement the administrative records lodged by the Department. While he argues generally that 10 the records “contain[n] no indication how the agency reached its decision” and that the 11 Department did not consider his hardship, he does not specify any documents that do not appear in 12 the administrative records, nor does he specify the subjects of any testimony he seeks to elicit to 13 add to the records.1 14 Moreover, plaintiff has failed to set forth any basis for this Court to find that 15 supplementation or discovery warranted due to a showing of pretext or necessity to explain the the 16 decision (such as a showing of pretext) or a showing of the agency’s bad faith. See Fence Creek 17 Cattle, 602 F.3d at 1131. 18 Should Plaintiff seek to make a more specific showing of the need to supplement the 19 record or engage in discovery, he shall explain that need in sufficient detail as part of his motion 20 for summary judgment. 21 The Court’s MODIFIES its previously issued scheduling order (Dkt. No. 38) as follows: 22 Defendants’ Motion for Summary Judgment shall be filed first. Defendants shall file their 23 motion no later than April 7, 2020. Plaintiff’s Opposition and Cross-Motion (single brief) shall be 24 1 Plaintiff argues that the record “begins at June 20, 2017, and skips to plaintiff’s request 25 for hearing and then to the letter from CCT regarding the class action on the student loan at page 10 of 75” which he contends “suggests an absence of documentation on whether the agency 26 decisionmaker's conduct was based on all the documents plaintiff submitted in support of his request for administrative relief.” It is unclear whether plaintiff is arguing that documents he 27 submitted are missing from the record, or if instead he contends that the documents are there but 1 filed by April 28, 2020. Defendant’s Reply and Opposition to Cross-Motion (single brief) shall 2 || be filed by May 19, 2020. Plaintiff's Reply shall be filed by June 9, 2020. 3 This terminates Docket No. 46. 4 IT Is SO ORDERED. 5 Dated: March 20, 2020 6 Dppone Hagtff leery YVONNE GONZALEZ ROGERS 7 UNITED STATES DISTRICT COURT JUDGE 8 9 10 ll a 12 13 14 15 16 17 O Z 18 19 20 21 22 23 24 25 26 27 28