Shah v. Department of Justice

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANE SHAH, No. 15-15232
Plaintiff-Appellant, D.C. No.
2:14-cv-00624-GMN-NJK
v.
DEPARTMENT OF JUSTICE, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Argued and Submitted December 16, 2016
San Francisco, California
Before: Michael Daly Hawkins, Marsha S. Berzon, and Mary H. Murguia, Circuit
Judges.
In this case, Mane Shah appeals the district court’s denial of his civil suit to
compel the DOJ to provide him certain data to use in his defense in the criminal
proceedings against him. Shah, accused of committing a criminal offense, agreed
to take a polygraph test, which he failed. After Shah received a one-page report on
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the polygraph results, Shah’s lawyers requested from the FBI the charts, graphs,
and raw data associated with the examination. The U.S. Attorney for the District
of Nevada Daniel Bogden (“USA Bogden”) rejected Shah’s request.
I. APA Challenge
Shah argues that DOJ violated the Administrative Procedure Act (“APA”), 5
U.S.C. § 701 et seq., by arbitrarily and capriciously withholding the polygraph data
and asserting the law enforcement privilege.1 We review de novo the district
court’s grant of summary judgment in favor of DOJ. Gardner v. U.S. Bureau of
Land Mgmt., 638 F.3d 1217, 1220 (9th Cir. 2011).
1
We note that Shah does not challenge the existence of a law enforcement
privilege that covers law enforcement techniques and procedures. Though several
other circuits have adopted such a privilege—see, e.g., Commonwealth of Puerto
Rico v. United States, 490 F.3d 50, 64 (1st Cir. 2007), cert denied 552 U.S. 1295(2008) (recognizing a qualified privilege for law enforcement techniques and
procedures); In re Dep’t of Investigation of the City of N.Y., 856 F.2d 481, 483–84
(2d Cir. 1988); and Black v. Sheraton Corp. of America, 564 F.2d 531, 541–42,
546–47 (D.C. Cir. 1977)—the U.S. Supreme Court and the Ninth Circuit have yet
to recognize or reject a “law enforcement privilege.” Given that Shah does not
argue that DOJ’s assertion of the law enforcement privilege was “not in
accordance with law,” 5 U.S.C. § 706(2)(A), we assume without deciding that the
privilege exists and covers raw polygraph data. We therefore confine our opinion
to analyzing Shah’s argument that DOJ arbitrarily and capriciously asserted the
law enforcement privilege. See In re Mercury Interactive Corp. Sec. Litig., 618
F.3d 988, 992 (9th Cir. 2010) (stating that “an issue will generally be deemed
waived on appeal if the argument was not raised sufficiently for the trial court to
rule on it” (citation and internal quotation marks omitted)).
2
In the official decision letter denying Shah’s request, USA Bogden points to
the specific materials he relied on in making his determination, including a
consultation with the FBI and factors outlined in DOJ’s Touhy regulations.2 USA
Bogden concluded that releasing the requested information was inappropriate
because it would have strong negative implications for FBI’s law enforcement
practices and the materials are “privileged law enforcement records which cannot
be disclosed without waiving the law enforcement privilege.” We cannot say that
DOJ’s denial is arbitrary and capricious where it provided a plausible reason for its
viewpoint based on agency expertise. See Arizona ex rel. Darwin v. U.S. E.P.A.,
815 F.3d 519, 530 (9th Cir. 2016) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); see also Ranchers
Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric.,
499 F.3d 1108, 1115 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)).
Despite Shah’s offer to review the materials confidentially, DOJ’s concern
regarding waiver of the law enforcement privilege is not unfounded given that our
2
Touhy regulations are promulgated by DOJ pursuant to 5 U.S.C. § 301.
Among other things, Touhy regulations set forth the procedures by which DOJ
responds to discovery requests in litigation to which the United States is not a
party. In re Boeh, 25 F.3d 761, 763–64 (9th Cir. 1994); see also United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
3
court has held that voluntary disclosure in the context of some privileges can
constitute waiver. See In re Pac. Pictures Corp., 679 F.3d 1121, 1126–27 (9th Cir.
2012) (concluding that in the attorney-client privilege context “voluntarily
disclosing privileged documents to third parties will generally destroy the
privilege”).3 In short, DOJ provided a “satisfactory explanation for its action
including a rational connection between the facts found and the choice made.” J &
G Sales Ltd. v. Truscott, 473 F.3d 1043, 1051 (9th Cir. 2007) (quoting Motor
Vehicle Mfrs., 463 U.S. at 43). Accordingly, DOJ’s denial of Shah’s request for
the underlying polygraph data did not violate the APA.
II. Expansion of the Record
A district court’s decision regarding whether to supplement an
administrative record is reviewed for abuse of discretion. Midwater Trawlers
Coop. v. Dep’t of Commerce, 393 F.3d 994, 1002 (9th Cir. 2004). Here, the
district court declined to expand the administrative record because it found Shah
provided no evidence demonstrating DOJ’s bad faith. See Animal Def. Council v.
Hodel, 840 F.2d 1432, 1437 (9th Cir. 1988), amended, 867 F.2d 1244 (9th Cir.
3
Shah has not argued here that the third-party disclosure doctrine does not
apply or applies differently to the law enforcement privilege than to the attorney-
client or other relational privileges.
4
1989) (“Courts may inquire outside the agency record when plaintiffs make a
showing of agency bad faith.”). We find there was no valid ground to expand the
administrative record, and the district court did not abuse its discretion in denying
Shah’s request to expand the record. See Midwater Trawlers, 393 F.3d at 1002.
III. Brady Challenge
Shah also argues that the district court erred by holding that DOJ was not
required to release the polygraph materials under Brady v. Maryland, 373 U.S. 83(1963), and Nevada state evidentiary rules. Even assuming that Brady applies in a
civil context and that DOJ has Brady obligations in this case, the requested
materials do not qualify as exculpatory materials that must be released to Shah.
See United States v. Price, 566 F.3d 900, 907 (9th Cir. 2009). The materials would
not be favorable or exculpatory to Shah because he failed the polygraph
examination. See id. Moreover, because under Nevada state law the polygraph
results cannot be admitted at trial without Shah’s consent, they are not material to
his case and not prejudicial. See Smith v. Baldwin, 510 F.3d 1127, 1148 (9th Cir.
2007) (en banc) (“Prejudice ensues if the evidence that is withheld is considered
‘material.’”); Jackson v. State, 997 P.2d 121, 122 (Nev. 2000). Accordingly,
DOJ’s failure to release the materials did not constitute a Brady violation. Shah
5
did receive a report of the polygraph examination, which is all that is required
under Nevada evidentiary rules. See Nev. Rev. Stat. § 174.235(1)(a)–(b).
We therefore conclude that DOJ did not violate the APA, the district court
did not abuse its discretion in refusing to expand the administrative record, and the
requested polygraph data were not Brady materials. We note that our conclusion
should have no bearing whatsoever on the state court criminal proceedings.
AFFIRMED.
6