Maddern v. Austin
| Decision Date | 28 January 2022 |
| Docket Number | 21cv1298-MMA (BLM) |
| Parties | RONALD MADDERN, Plaintiff, v. LLOYD AUSTIN in his capacity as Secretary of the United States Department of Defense, Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER DENYING PLAINTIFF'S MOTION FOR DISCOVERY
Currently before the Court is Plaintiff's December 29, 2021 Motion for Discovery [ECF No. 9 (“Mot.”)] Defendant's January 10, 2022 opposition to the motion [ECF No. 14 (“Oppo”)], and Plaintiff's January 14, 2022 reply [ECF No. 17-1 (“Reply”)]. For the reasons set forth below, Plaintiff's motion is DENIED.
The above-entitled case was initiated on July 19, 2021, when Plaintiff filed a complaint pursuant to the Administrative Procedures Act. ECF No. 1.
On December 3, 2021, Judge Anello issued a Scheduling Order requiring Defendant to lodge the Administrative Record (“AR”) by January 4, 2022, and ordering that dispositive motions be filed by May 8, 2022. ECF No. 6. Judge Anello noted that apart from four narrow exceptions the Administrative Procedures Act (“APA”) requires the Court to evaluate an agency decision only on the administrative record that was before the agency when it made its decision. Id. at 1. Accordingly, Judge Anello ordered that “[t]o the extent either party wishes to open formal discovery for the limited purpose of augmenting the administrative record within one of the exceptions noted above, they must contact the assigned magistrate judge's chambers to discuss whether such limited discovery is permissible.” Id. at 2.
On December 8, 2021, Plaintiff's counsel, Mr. A. Eli Aizenman, contacted Judge Major's Chambers regarding the opening of discovery. ECF No. 7. On December 9, 2021, Plaintiff filed a Motion for Leave to Amend Complaint.[1] ECF No. 8. That same day, the Court issued an Order Requiring Meet and Confer and Setting Briefing Schedule. ECF No. 7. The Court ordered counsel to meet and confer regarding both the scope of the desired discovery and the legal basis for the discovery by December 17, 2021. Id. at 2. The Court further ordered that if the attorneys were unable to resolve the dispute, Plaintiff had to file a motion requesting discovery 1) identifying the specific discovery that will be conducted, 2) providing legal authority for the desired discovery in this APA litigation, including which exceptions justify augmentation of the record, and 3) explaining the relevance of the desired discovery to the issues in this case. Id.
On December 29, 2021, Plaintiff filed a Motion for Discovery. ECF No. 9. Defendant opposed the motion on January 10, 2022. ECF No. 14.
On January 14, 2022, Plaintiff filed a Motion for Leave to File Reply. ECF No. 17. Defendant opposed the motion on January 18, 2022. ECF No. 19. On January 27, 2022, the Court granted Plaintiff's motion and accepted the reply. ECF No. 22.
Plaintiff, a seventy-three year old retired Army Staff Sergeant, developed a severe case of lumbar spinal stenosis. Mot. at 5; see also Oppo. at 4. After being wheelchair bound for fourteen years, and numerous unsuccessful treatments, Plaintiff underwent a medical procedure in August 2017 to insert a Superion device between two of his vertebrae. Id.; see also Oppo. at 4. Plaintiff repeated the procedure in November 2017 with two more vertebrae. Id.; see also Oppo. at 4. Soon after the procedures, Plaintiff was able to walk without his wheelchair and significantly reduce his pain. Id.
Medicare paid eighty percent of Plaintiff's claims for coverage. Id. at 6. TriCare rejected Plaintiff's claims for the remaining twenty percent. Id. Plaintiff appealed the decision, and it was assigned to Administrative Law Judge ("ALJ") Nicole Noel. Id. ALJ Noel held a hearing on August 22, 2019. Plaintiff, his wife, and Dr. Michael Verdolin testified at the hearing. Id. Defense counsel, Ms. Greer, did not present any exhibits or witnesses. Id. Both parties submitted post-hearing briefs. Id. On September 16, 2019, ALJ Noel stated that the record was closed. Id. at 7; see also ECF No. 12, Declaration of James Pistorino in Support of Motion for Discovery (“Pistorino Decl.”) at Exh. C at 182. ALJ Noel's recommended decision was due within 60 days of the closing of the record or by November 15, 2019. Id. at 7.
In January 2020, Plaintiff's counsel wrote ALJ Noel, copying Ms. Greer, and asked about the status of the recommended decision. Id.; see also Pistorino Decl. at Exh. C at 182. ALJ Noel responded to all that she intended to issue her decision by the end of January. Id. In June 2020, Plaintiff still had not received the decision, so Plaintiff's counsel again wrote to ALJ Noel, copying Ms. Greer. Id. ALJ Noel responded by asking Ms. Greer for an update. Id.; see also Pistorino Decl. at Exh. C at 184. Plaintiff's counsel responded asking if a decision had been issued and requesting a copy if it had. Id. Ms. Greer responded stating that the Secretary had not issued a final decision. Id.; see also Pistorino Decl. at Exh. C at 187. Plaintiff's counsel again inquired about the recommended decision and asked for a copy; Ms. Greer responded by stating that "Judge Noel issued her recommended decision within the 60 day window allowed by the Regulation." Id.; see also Pistorino Decl. at Exh. C at 203. The recommended decision was not provided. Id.
On May 11, 2021, Plaintiff's counsel still had not received any decisions, so he emailed Ms. Greer stating his plan to sue for a writ of mandamus and/or a final decision if nothing was received by May 21, 2021. Id. at 8; see also Pistorino Decl. at Exh. C at 209. Counsel also emailed Ms. Greer and ALJ Noel together asking when the recommended decision issued and requesting a copy. Id. On May 19, 2021, ALJ Noel sent a message to Plaintiff's counsel stating that she issued a recommended decision in February 2020. Id.; see also Pistorino Decl. at Exh. C at 224. That same day Plaintiff's counsel sent an email to Ms. Greer restating his intention to file suit if he did not receive an opinion by May 21, 2021. Id.; see also Pistorino Decl. at Exh. C at 222. Ms. Greer responded stating that the decision was being placed in the mail that day. Id.; see also Pistorino Decl. at Exh. C at 222. Dr. Yale faxed the decision to Plaintiff's counsel on May 20, 2021. Id.; see also Pistorino Decl. at Exh. B.
In November 2021, defense counsel provided Plaintiff's counsel with a copy of ALJ Noel's decision dated January 31, 2020. Pistorino Decl. at Exh. A.
When reviewing an agency decision under the APA, courts must review the agency's decision based on the administrative record that was before the agency when it made its decision. See Goffney v. Becerra, 995 F.3d 737, 747 (9th Cir. 2021). This principle “reflects the recognition that further judicial inquiry into ‘executive motivation' represents ‘a substantial intrusion' into the workings of another branch of Government and should normally be avoided.” Dep't of Commerce v. New York, 139 S.Ct. 2551 at 2573-2574 (2019) (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 268, n. 18 (1977)). The administrative record consists of “all documents and materials directly or indirectly considered by agency decision-makers” at the time the decision was made. Alegre v. Jewell, 2021 WL 4932540, at *2-3 (S.D. Cal., Aug. 18, 2021) (quoting Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (emphasis in original)). Extra-record evidence may only be admitted when (1) the extra-record documents are needed to ascertain “whether the agency considered all relevant factors and has explained its decision, ” (2) the extra-record documents were relied on by the agency for decision-making, (3) the extra-record documents are needed to explain technical terms or complex subject matter, ” or (4) the plaintiff has made “a showing of agency bad faith.” Lands 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. 1996)). These exceptions are narrowly construed and applied. Id.
To obtain discovery under the fourth exception, a plaintiff must make “a significant showing -- variously described as a strong, substantial, or prima facie showing that it will find material in the agency's possession indicative of bad faith.” Almaklani v. Trump, 444 F.Supp.3d 425, 431 (E.D.N.Y. 2020) Ali v. Pompeo, 2018 WL 2058152, at *5 ); see also Dep't of Commerce, 139 S.Ct. at 2573-2574 (“[o]n a strong showing of bad faith or improper behavior, such an inquiry may be warranted and may justify extra-record discovery”). “[M]ere allegations of bad faith are inadequate to overcome the presumption of regularity accorded to agency action.” Mayor and City Council of Baltimore v. Trump, 429 F.Supp.3d 128, 138 (D. Md. 2019); see also Moralez v. Perdue, 2017 WL 2264855, at *2 (E.D. Cal., May 24, 2017) () (quoting Air Transp. Ass'n of Am., Inc. v. Nat'l Mediation Bd., 2010 WL 8917910, at *2 (D.D.C. June 4, 2010)).
Plaintiff “seeks discovery related to ex parte contacts engaged in by the Secretary's counsel (Ms. Greer), the ALJ who issued the recommended decision below (Ms. Noel), and the final decision maker (Dr. Yale)/his office.” Mot. at 2. Plaintiff is seeking discovery under the fourth exception, arguing that the identified people engaged in improper ex parte communications. Id. at 11-14; Reply at 2-4. Plaintiff also argues that ...
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