Pinnacle Armor, Inc. vs. USA
Filing
69
ORDER DENYING DEFENDANT'S THIRD MOTION TO DISMISS; AND DENYING IN PART AND DEFERRING IN PART DEFENDANT'S ALTERNATIVE MOTION FOR SUMMARY JUDGMENT 64 signed by District Judge Lawrence J. O'Neill on October 26, 2012. (Munoz, I)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PINNACLE ARMOR, INC.,
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Plaintiff,
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1:07-CV-01655 LJO DLB
ORDER DENYING DEFENDANT’S
THIRD MOTION TO DISMISS; AND
DENYING IN PART AND DEFERRING
IN PART DEFEDNANT’S
ALTERNATIVE MOTION FOR
SUMMARY JUDGMENT (DOC. 64)
v.
UNITED STATES OF AMERICA,
Defendant.
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I. INTRODUCTION
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Plaintiff Pinnacle Armor, Inc. (“Pinnacle”) produces armor designed to protect buildings,
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that often utilize federal subsidies to purchase body armor. Availability of at least one such subsidy is
conditioned upon certification that the body armor was manufactured in compliance with the most recent
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standards set by the National Institute of Justice (“NIJ”), an arm of the U.S. Department of Justice
(“DOJ”). In its Verified First Amended Complaint (“FAC”), Pinnacle alleged that NIJ’s decision to
18 revoke certification for one of Pinnacle’s products: (1) violated Pinnacle’s procedural due process rights
19 under the Fifth Amendment; and (2) was “arbitrary and capricious” in violation of the Administrative
20 Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). Doc. 6.1
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On March 11, 2008, the district court dismissed both claims, holding that Pinnacle’s interest in
NIJ certification is not a protected property right under the due process clause, and that NIJ’s
certification decision is exempt from review under the APA because the certification process is
25 “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2). Doc. 22. Pinnacle appealed. Doc. 24.
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The FAC also included equal protection and Freedom of Information Act claims. Doc. 6. Plaintiff voluntarily dismissed
these claims. See Doc. 17-1 at 2 n. 2.
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The Ninth Circuit affirmed on the Fifth Amendment claim, but reversed and remanded on the APA
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claim, directing the district court to conduct further proceedings. Doc. 35, filed May 26, 2011, Pinnacle
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Armor, Inc. v. United States, 648 F.3d 708 (2011).
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Defendant, the United States of America, previously moved to dismiss the remaining APA claim
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as moot pursuant to Fed R. Civ. P. 12(b)(1). Doc. 53. That motion was denied without prejudice. Doc.
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Before the Court for decision is Defendant’s renewed motion to dismiss this case as moot. Doc.
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64. In the alternative, Defendant moves for summary judgment that: (a) Plaintiff lacks standing, and (b)
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cannot prevail on the merits. Id. Defendant also filed the Declaration of George C. Tillery and related
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exhibits. Docs. 64-2 - 64-4. Plaintiff filed an opposition, along with the September 26, 2012 Declaration
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of Murray Neal and related exhibits. Docs. 66 - 66-2. Defendant replied and filed another Declaration
from George C. Tillery. Docs. 67 - 67-1. The motion was originally set for hearing on October 10, 2012,
15 but the matter was submitted for decision on the papers pursuant to Local Rule 230(g). Doc. 68.
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II. BACKGROUND
A.
The pre-remand factual history is summarized succinctly in the Ninth Circuit’s decision:
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As part of the Department of Justice, the NIJ is authorized to “improv[e] Federal, State,
and local criminal justice systems and related aspects of the civil justice system [by]
identifying programs of proven effectiveness ... or programs which offer a high
probability of improving the functioning of the criminal justice system.” 42 U.S.C. §
3721. The NIJ, through its Office of Science and Technology (“OST”), establishes and
maintains performance standards for bulletproof vests and other law enforcement
technologies. 6 U.S.C. § 162(b)(3), (b)(6). The OST is charged with “establish[ing] and
maintain [ing] a program to certify, validate, ... or otherwise recognize law enforcement
technology products that conform to standards established and maintained by the
Office....” Id. § 162(b)(4).
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One of the programs the NIJ manages is the Body Armor Compliance Testing Program.
Under this program, a manufacturer may submit its body armor to the NIJ for a
determination of whether the armor complies with the NIJ’s performance standards. If the
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Facts.
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Defendant’s additional motion to strike Plaintiff’s prayer for damages was granted. Doc. 61 at 20.
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product satisfies the standards, the NIJ includes it on a list of compliant body armor
models. A product reaps a substantial benefit if it is found compliant: When state and
local law enforcement agencies purchase body armor listed as “compliant” by the NIJ,
the federal government subsidizes up to fifty percent of the purchase. See 42 U.S.C. §§
3796ll, 3796ll–2.
The NIJ issued compliance standards in 2001. See Nat’l Institute of Justice, U.S. Dept. of
Justice, Ballistic Resistance of Personal Body Armor, NIJ Standard—0101.04, Revision
A (June 2001) [hereinafter “NIJ Standard—0101.04 ”]. After it learned that certain body
armor models could wear out prematurely and that its 2001 compliance requirements did
not adequately address this concern, the NIJ issued supplemental performance standards
for body armor in 2005. See Nat’l Institute of Justice, U.S. Dept. of Justice, NIJ 2005
Interim Requirements for Bullet–Resistant Body Armor (Sept. 26, 2005) [hereinafter
“2005 Interim Requirements”], [internet citation omitted]. In order to maintain
compliance, the 2005 Interim Requirements require the manufacturers of body armor to
submit either “evidence ... that demonstrates to the satisfaction of the NIJ that the model
will maintain ballistic performance (consistent with its originally declared threat level)
over its declared warranty period,” or a “written certification” by a manufacturer’s officer
stating that the officer believes the model will maintain ballistic performance; that the
manufacturer has objective evidence to support that belief; and that the officer agrees to
provide the NIJ with the evidence “promptly on demand” by the NIJ. The requirements
provide that the NIJ will revoke a model’s compliance status “at any time” if the
evidence submitted by the manufacturer was “insufficient to demonstrate to the
satisfaction of NIJ that the model w[ould] maintain its ballistic performance” over the
model’s declared warranty period.
Pinnacle manufactures body armor used by state and local government law enforcement
agencies. One of its models, patented as “dragon skin,” consists of overlapping ceramic
discs, which allow the vest to be more flexible than other bulletproof vests. The parties
do not dispute that dragon skin met the NIJ’s 2001 requirements. See NIJ Standard—
0101.04. The issue here is dragon skin’s compliance with the 2005 Interim Requirements.
To comply with the 2005 Interim Requirements, Pinnacle’s officer issued a written
certification declaring that he believed the vests would maintain their ballistic
performance over the warranty period, that he had objective evidence to support this
belief, and that he would submit the evidence to the NIJ on demand. In December 2006,
the NIJ issued a Notice of Compliance to Pinnacle certifying that dragon skin, which had
a six-year warranty period, was compliant with the NIJ’s 2005 standards. Relying on this
notice, Pinnacle spent hundreds of thousands of dollars producing vests for law
enforcement agencies.
Subsequently, the NIJ received information from the Department of Defense that
questioned the dragon skin model’s durability under environmental stressors. The NIJ
was particularly concerned about the effects of “temperature extremes and cycling” on
the dragon skin model over time. Consistent with the 2005 Interim Requirements, the NIJ
asked Pinnacle in June 2007, to provide documentation of the “data or other objective
evidence that supports Pinnacle Armor’s belief that [the dragon skin] model ... will
maintain its ballistic performance (consistent with its originally declared threat level)
over its declared warranty period of six years.” In response, Pinnacle submitted
testimonials of those who wore the dragon skin vest for over one year, photographs of
armor panels, and a test report on a vest that had been turned in after four years of
service. The NIJ found that this evidence was “insufficient to demonstrate to the
satisfaction of NIJ that the model ... will maintain its ballistic performance ... over its
declared warranty period.” The NIJ stated that as of August 3, 2007, the dragon skin
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model would no longer be deemed compliant with the NIJ requirements and published
statements to that effect.
648 F.3d at 711-14.
Also on August 3, 2007, the NIJ, through DOJ’s Office of Justice Programs, issued a press
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release stating that Plaintiff had not provided evidence sufficient to demonstrate to the satisfaction of the
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NIJ that the Dragon Skin armor would maintain its ballistic performance over its declared 6-year
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warranty period. FAC ¶ 35; Doc. 2, Ex. T. Pinnacle submitted additional information on several more
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occasions. Doc. 2 at Ex. N, O & P. After reviewing the additional evidence, NIJ nevertheless concluded
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that Pinnacle still had not sufficiently demonstrated that the dragon skin model would perform at the
same level for six years. FAC ¶¶ 29-30. The NIJ identified several reasons why Pinnacle’s evidence was
insufficient and invited Pinnacle to provide additional evidence. Doc. 2 at Ex. R; see also Pinnacle
13 Armor, 648 F.3d at 713. Pinnacle declined to submit any further evidence, choosing instead to file this
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B.
As discussed above, Pinnacle alleged that NIJ’s decision to revoke certification for the Pinnacle’
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Procedural History.
product in question: (1) violated its procedural due process rights under the Fifth Amendment; and
19 (2) was “arbitrary and capricious” in violation of the APA, 5 U.S.C. § 706(2)(A). Doc. 6. The district
20 court dismissed both claims. Doc. 22. The Ninth Circuit affirmed on the Fifth Amendment claim,
21 finding that the Due Process Clause does not require that NIJ grant a formal hearing before revoking a
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finding of compliance with its standards. 648 F.3d at 717. All that is required is “notice and an
opportunity for hearing appropriate to the nature of the case.” Id (emphasis in original). The Ninth
Circuit found NIJ’s procedures provided Pinnacle a “full and fair opportunity to be heard on its claims.”
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The district court’s found that because the then-operative 2005 Interim Requirements provided
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NIJ discretion to remove armor from its compliance list “without statutory restraint,” the NIJ’s actions in
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this case were unreviewable under 5 U.S.C. § 701(a)(2), which precludes review of “agency action [that]
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is committed to agency discretion by law.” The Ninth Circuit reversed, reasoning that “together, the
2005 Interim Requirements and the statute supply [a] standard against which we can judge the agency’s
decision-making.” Id. at 719-20. The Ninth Circuit also found that the FAC sufficiently set forth an
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APA claim because it “alleges that the methods the NIJ uses to test body armor bear no relation to the
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standard set out in the Requirements—namely, that the armor will maintain its ballistic integrity over the
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life of the warranty” and further “alleges that the NIJ violated the APA by failing to provide the data
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upon which revocation of the Notice of Compliance was based.” Id. at 721
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The “06 Standard” and Mootness on Appeal.
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In 2008, during the pendency of the appeal, NIJ published a new set of requirements for the
14 Body Armor Compliance Testing Program (“BACTP”). Id. at 714. The United States argued before the
15 Ninth Circuit that the entire appeal was moot because the 2008 requirements, set forth in NIJ Standard 16
0101.06 (the “06 Standard”), superseded the 2005 Interim Requirements at issue in this case. Id.
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Among other things, the 2008 requirements state:
Publication of this revision of the standard does not invalidate or render unsuitable any
body armor models previously determined by NIJ to be compliant to either the NIJ 2005
Interim Requirements or the NIJ Standard-0101.04 Rev. A Requirements.
21 06 Standard, Doc. 53-3, at v. Focusing on this language, the Ninth Circuit refused to find the appeal
22 moot:
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In order to be listed as compliant with the 2008 requirements, body armor must be
submitted to and tested by the NIJ. The NIJ’s new requirements are accompanied by
sample laboratory configurations to help manufacturers prepare their products for the
NIJ’s tests. Although the NIJ accepted a written certification from an officer or
independent evidence to establish conformity with its requirements under the 2005
Interim Requirements, under the 2008 requirements it no longer does so. Importantly, the
2008 requirements do not “invalidate or render unsuitable any body armor models
previously determined by NIJ to be compliant [under] the NIJ 2005 Interim
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Requirements,” but advise agencies to “always require their procurements to meet or
exceed the most recent and up-to-date version of this standard.”
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The 2008 Requirements explicitly state that they did not “invalidate or render unsuitable
any body armor models previously determined by the NIJ to be compliant [under] the NIJ
2005 Interim Requirements.” Thus, if Pinnacle succeeds on its claim and the court
declares that its armor was compliant with the 2005 Interim Requirements, its armor will
be presumptively compliant under the current standards. In this way, the 2005 Interim
Requirements continue to have a “brooding presence, cast[ing] what may well be a
substantial adverse effect on the interests of the petitioning parties.” Headwaters, 893
F.2d at 1015 (quotation marks omitted).
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The government argues that “any manufacturer wishing to participate in the Compliance
Testing Program must submit its body armor for testing under the new [standards]....
even if NIJ previously determined the body armor model compliant with the NIJ 2005
Interim Requirements.” But this is a misstatement of the requirements. The 2008
requirements clearly state that if the armor was compliant under the 2005 Interim
Requirements, it is still compliant under the 2008 requirements and does not need to be
retested. Therefore, because the 2008 requirements do not require retesting of the armor
deemed compliant under the 2005 Interim Requirements, whether the dragon skin model
was compliant with the 2005 Interim Requirements remains a “present controversy.”
Feldman, 518 F.3d at 642 (citation omitted). The 2008 Requirements have no impact on
this controversy.
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16 Id. at 714-15 (emphasis added). In sum, the Ninth Circuit interpreted the 06 Standard’s statement that
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models previously determined by NIJ to be compliant [under the 2005 Interim Requirements]” to mean
that any armor compliant with the 2005 Interim Requirements was presumptively compliant with the 06
Standard.
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Post-Remand Developments.
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On June 29, 2011, in response to the Ninth Circuit’s “presumptive compliance” holding in
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Pinnacle Armor, 648 F.3d at 715, the NIJ issued an “Administrative Clarification” of the 06 Standard.
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See Doc. 53-2, ¶ 5 & Ex. 2. The Administrative Clarification directly addresses the 06 Standard’s
statement that that “[p]ublication of this revision of the standard does not invalidate or render unsuitable
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any body armor models previously determined by NIJ to be compliant [under the 2005 Interim
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Requirements],” by clarifying that this language was intended “to make clear to criminal justice
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agencies that the release of a new standard should not be interpreted as a recommendation to remove
body armor from service which had been previously found compliant by the NIJ [Compliance Testing
Program] with a previous version of the standard.” Id., Ex. 2. The NIJ reiterated: “an agency’s older
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armor may be considerably preferably to no armor at all until new armor determined by the NIJ CTP to
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be compliant with the current standard can be obtained.” Id. Critically, “[t]he statement that older armors
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may not necessarily be considered to be ‘unsuitable’ for continued use in service until replaced should
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not be read to suggest – in any way – that an armor model’s compliance with a predecessor standard
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somehow equates to compliance under the most current, superseding standard.” Id. (emphasis added).
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Although the NIJ-administered Bulletproof Vest Partnership (“BVP”) grant program does not
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prohibit participating state and local law enforcement agencies from using their own funds to procure
15 armor that does not comply with the most current NIJ standard, federal BVP grant money can only be
16 used to purchase armor models the NIJ has deemed in compliance with the most recent current standard.
17 Id. at ¶¶ 6-7. All armor models, including models found compliant under an old standard, must be tested
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against the 06 standard to be included on the Listing of Compliant Armor and thus eligible for federal
grant money. Id. at ¶¶ 5-6.
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Previous Motion to Dismiss
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In its previous motion to dismiss, the United States argued Plaintiff’s APA claim was rendered
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moot because the 2005 Interim Requirements are no longer in effect and the NIJ clarified that it does not
consider an armor’s compliance under a superseded standard to be “presumptively compliant” under the
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current, 06 Standard. As the present motion arises directly from the order denying this motion without
prejudice, relevant portions of the Court’s prior decision are discussed in detail below.
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III. DISCUSSION
A.
Motion to Dismiss APA Claim as Moot.
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Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for “lack of subject-
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Fed. R. Civ. P. 12(b)(1).
matter jurisdiction.” Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the
existence of the court’s subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.
1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary
affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968–69 (9th Cir. 1981).
A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214,
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11 1242 (9th Cir. 2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir.
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In a facial attack, the challenger asserts that the allegations contained in a complaint are
insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack,
the challenger disputes the truth of the allegations that, by themselves, would otherwise
invoke federal jurisdiction.
16 “If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of
17 jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of
18 jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6)
19 motion is made.” Cervantez v. Sullivan, 719 F. Supp. 899, 903 (E.D. Cal. 1989), rev’d on other grounds,
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963 F.2d 229 (9th Cir. 1992). “The factual allegations of the complaint are presumed to be true, and the
motion is granted only if the plaintiff fails to allege an element necessary for subject matter
jurisdiction.” Id.; see also Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir. 2009), rev’d
24 on other grounds en banc, 616 F.3d 1019 (9th Cir. 2010) (applying Ashcroft v. Iqbal, 556 U.S. 662, 129
25 S. Ct. 1937 (2009), to a facial motion to dismiss for lack of subject matter jurisdiction).
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A Rule 12(b)(1) motion is considered a speaking motion -- or factual attack -- when the
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defendant submits evidence challenging jurisdiction along with its motion to dismiss. Thornhill Publ’g
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Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979); see also Savage v. Glendale Union
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High Sch., 343 F.3d 1036, 1039-40 & n. 2 (9th Cir. 2003). A proper speaking motion allows the court to
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consider evidence outside the complaint without converting the motion into a summary judgment
motion. See Safe Air for Everyone, 373 F.3d at 1039. “Once the moving party has converted the motion
to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the
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court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its
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burden of establishing subject matter jurisdiction.” Savage, 343 F.3d at 1039-40, n. 2. In a speaking
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motion, “[t]he court need not presume the truthfulness of the plaintiff’s allegations.” Safe Air, 373 F.3d
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at 1039.
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Few procedural limitations exist in a factual challenge to a complaint’s jurisdictional allegations.
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St. Clair v. City of Chico, 880 F.2d 199, 200-202 (9th Cir. 1989). The court may permit discovery before
allowing the plaintiff to demonstrate the requisite jurisdictional facts. Id. A court may hear evidence and
15 make findings of fact necessary to rule on the subject matter jurisdiction question prior to trial, if the
16 jurisdictional facts are separable from the merits. Rosales v. United States, 824 F.2d 799, 802-803 (9th
17 Cir. 1987). However, if the jurisdictional issue and substantive claims are so intertwined that resolution
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of the jurisdictional question is dependent on factual issues going to the merits, the court should dismiss
for lack of jurisdiction only if the material facts are not in dispute and the moving party is entitled to
prevail as a matter of law. Otherwise, the intertwined facts must be resolved by the trier of fact. Id.
Here, both sides have presented declarations containing facts relevant to the jurisdictional
23 questions. As the material jurisdictional facts themselves are undisputed, there is no need for an
24 evidentiary hearing.
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2.
Mootness Doctrine.
Defendant again argues that the Court lacks subject matter jurisdiction over the case because
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Plaintiff’s APA claim is moot. An issue is moot “when the issues presented are no longer ‘live’ or the
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parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287
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(2000). “The underlying concern is that, when the challenged conduct ceases such that there is no
reasonable expectation that the wrong will be repeated, then it becomes impossible for the court to grant
any effectual relief whatever to the prevailing party.” Id. (internal citations and quotations omitted). If
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the parties cannot obtain any effective relief, any opinion about the legality of a challenged action is
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advisory. Id. “Mootness has been described as the doctrine of standing set in a time frame: The requisite
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personal interest that must exist at the commencement of the litigation (standing) must continue
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throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22
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(1997) (internal citation and quotation omitted). “[A]n actual controversy must be extant at all stages of
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review, not merely at the time the complaint is filed.” Id. at 67.
Even if a case is technically moot, a case may nevertheless be justiciable if one of three
15 exceptions to the mootness doctrine applies: (1) where a plaintiff “would suffer collateral legal
16 consequences if the actions being appealed were allowed to stand”; (2) where defendant voluntarily
17 ceased the challenged practice; and (3) for “wrongs capable of repetition yet evading review.” Ctr. for
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Biological Diversity v. Lohn, 511 F.3d 960, 964–66 (9th Cir. 2007). “The party asserting mootness has a
heavy burden to establish that there is no effective relief remaining for a court to provide.” In re
Palmdale Hills Property, LLC, 654 F.3d 868, 874 (9th Cir. 2011).
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3.
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In the previous motion to dismiss, Defendant contended: “that because the Administrative
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This Court’s Previous Rejection of Motion to Dismiss as Moot.
Clarification now makes clear that there is no ‘presumptive compliance’ under the 06 Standard (i.e. that
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body armor manufacturers choosing to participate in the BACTP must submit their armor for testing
under the 06 Standard regardless of whether the armor was deemed compliant under a prior standard),
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the APA claim in this case is now moot.” Doc. 61 at 12. The Court concluded that the Administrative
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Clarification eliminated the “brooding presence” identified by the Ninth Circuit:
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The Ninth Circuit found that the issuance of the 06 Standard did not moot Plaintiff’s
APA claim because the 06 Standard contained language suggesting that armor compliant
with an older standard was “presumptively compliant” with the 06 Standard. Therefore,
the dispute articulated in the FAC’s APA claim, which revolves entirely around whether
Defendant lawfully revoked the Notice of Compliance with the 2005 Interim
Requirements, was not moot because the 2005 Interim Requirements “continue[d] to
have a ‘brooding presence, cast[ing] what may well be a substantial adverse effect on the
interests of the petitioning parties.’” Pinnacle Armor, 648 F.3d at 716 (internal citation
omitted).
The Administrative Clarification, issued by the agency that promulgated the 06 Standard,
clarifies that the 06 Standard was never intended to render armor compliant with outdated
standards “presumptively compliant” with the 06 Standard. Taken at face value, this
effectively eliminates the “brooding presence” found by the Ninth Circuit because,
according to the Clarification, compliance with the 2005 Interim Requirements does not
equate to presumptive compliance with the 06 Standard.
However, because the changed circumstances giving rise to Defendant’s mootness
argument was the result of Defendant’s own act, the court must dig deeper. Even if a case
is technically moot, a case may nevertheless be justiciable if one of three exceptions to
the mootness doctrine applies, including the exception for a defendant’s voluntary
cessation of a challenged practice. Ctr. for Biological Diversity v. Lohn, 511 F.3d at 964–
66. In light of this exception, the standard for demonstrating that a case has been mooted
by a defendant’s voluntary conduct is “stringent.” White v. Lee, 227 F.3d 1214, 1243 (9th
Cir. 2000). Where circumstances suggest a policy change designed to alter challenged
conduct was motivated by a desire to avoid further litigation, courts consider whether the
change in conduct is accompanied by circumstances indicating the change is a “genuine”
act of “self-correction.” See Magnuson v. City of Hickory Hills, 933 F.2d 562, 565 (7th
Cir.1991); see also White, 227 F.3d at 1243 (finding challenge to agency’s investigatory
practices moot after issuance of memorandum by agency official that “represents a
permanent change in the way [the agency] conducts investigations, not a temporary
policy that the agency will refute once this litigation has concluded”).
Although these standards cannot be applied with perfect precision to the present
circumstances, because the Administrative Clarification does not directly reverse the
conduct challenged in this case (the revocation of the Notice of Compliance), the
standards are instructive. Here, the agency has issued a formal interpretation of its 06
Standard. Although the agency admits it was motivated to do so by the Ninth Circuit’s
ruling, see Tillery Decl., Doc. 53, ¶ 5, the Administrative Clarification is a genuine effort
to clarify what its own regulation was intended to accomplish. The Administrative
Clarification represents a public commitment by the agency to interpret its regulation in a
particular manner. Such interpretations are entitled to some degree of judicial deference,
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see United States v. Mead Corp., 533 U.S. 218, 234 (2001) (giving Skidmore deference to
interpretations contained in agency manuals or enforcement guidelines)…. The
Administrative Clarification offers a reasonable interpretation of the 06 Standards and
nothing in the record suggests the position set forth in the Clarification conflicts with any
prior interpretation.
The issuance of the Administrative Clarification removes the “brooding presence”
identified by the Ninth Circuit. In other words, in light of the Administrative
Clarification, even if this court were to vacate the NIJ’s decision to revoke the Notice of
Compliance with the 2005 Interim Requirements, this would not automatically render the
subject body armor compliant with the current standards and therefore eligible for
reimbursement under the BVP.
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Doc. 61 at 14-16 (emphasis added).
Yet, the Court recognized that dismissal on mootness grounds was nevertheless inappropriate
11 because, according to the June 21, 2012 Declaration of Murray Neal, the inventor of the Dragon Skin
12 body armor and Pinnacle’s President and CEO, individual officers would continue to purchase dragon
13 skin “so long as the armor meets one of the NIJ standards.” Doc. 57-1 at ¶ 12. Thus, Mr. Neal stated,
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“maintaining compliance status under the 2005 Interim Requirements continues to be important [] to
Pinnacle Armor, Inc....” Id.
The Court also credited Plaintiff’s alternative argument that the 06 Standard had not completely
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[A]ccording to Mr. Neal, NIJ and Plaintiff worked together to develop an extensive
protocol under the 2005 Interim Requirements for the testing of flexible rifle-defeating
body armor. Id. at ¶ 13. Yet, neither this protocol, nor any other protocol for flexible rifle
defeating body armor, was included in the 06 Standard. Id. According to Mr. Neil, this
means that “the only ... protocol suitable for testing Pinnacle Armor’s novel Dragon Skin
technology is the 2005 Interim Requirements.” Id. In light of this purported gap in the 06
Standard, Plaintiff maintains that the 06 Standard has not completely displaced the 2005
Interim Requirements.
In response, rather than provide any evidence or legal argument that would help resolve
the extent to which aspects of the 2005 Interim Requirements may have survived the
promulgation of the 06 Standard, Defendant simply asserts that this is “a pure question of
law the Court must answer.” Doc. 59. This fails to satisfy Defendant’s heavy burden to
establish mootness, particularly in light of the legal standard that requires the Court view
disputed facts in a light most favorable to Plaintiff.
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1
2
Id. at 19.
3
4.
4
Defendant makes only one new argument here, taking aim at the alternative argument that the 06
5
6
7
8
9
Present Motion to Dismiss As Moot.
Standard had not completely displaced the 2005 Interim Requirements. Specifically, having now
apparently reviewed the text of the 06 Standard with greater care, Defendant points out that the 06
Standard expressly states that “[w]hen manufacturers seek NIJ compliance of their armor to this
standard and the armor contains unique materials … that may not have been anticipated when this
10 standard was drafted, NIJ may modify the test methods of the standard to take those features into
11 account.” Doc. 64-1 at 13 (citing 06 Standard at v). Defendant argues that because “under the new
12
13
standard, NIJ may modify the test protocols to account for armor that contains unique materials, such as
plaintiff’s Dragon Skin insert, when the circumstances require it… there is no dispute regarding whether
14
15
16
the 06 Standard supersedes the 2005 Interim Requirements in its entirety – it does.” Id.
Plaintiff admits that the 06 Standard contains a provision that allows NIJ to modify test protocols
17 under certain circumstances, but insists that those circumstances do not apply here, because no “unique
18 materials” are present. Doc. 66 at 10. Plaintiff points to communications between Pinnacle and
19 administrators of the BACTP program, in which those administrators indicate that Plaintiff’s product
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21
22
23
24
25
26
27
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presented a new and different “design,” rather than a unique material. Id. But, Defendant points to the
full text of the language in the 06 Standard, which provides:
When manufacturers seek NIJ compliance of their armor to this standard and the armor
contains unique materials or forms of construction that may not have been anticipated
when this standard was drafted, NIJ may modify the test methods of the standard to take
those features into account.
06 Standard at v. The language “forms of construction” encompasses the type of “new design” presented
by Pinnacle’s Dragon Skin. The 06 Standard therefore provides a mechanism by which Pinnacle could
13
1
submit Dragon Skin for compliance testing. The alternative argument that the 06 Standard does not
2
completely displace the 2005 Interim Standards must therefore be rejected.3
3
4
5
6
However, Defendant does not address the first reason cited by the Court when it rejected the
previous motion to dismiss as moot, namely, that Plaintiff presented evidence to support a finding that
reinstatement of certification under the 2005 Interim Standards would be meaningful to Pinnacle
7
because some officers would continue to purchase dragon skin “so long as the armor meets one of the
8
NIJ standards.” These facts are competently presented by the Pinnacle’s CEO and are undisputed. See
9
Doc. 66-1 at ¶ 9. Plaintiff therefore has presented evidence that it retains “a legally cognizable interest in
10
the outcome.” City of Erie, 529 U.S. at 287. The “underlying concern” in a mootness dispute is whether
11
it has become “impossible for the court to grant any effectual relief whatever to the prevailing party.” Id.
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14
Here, if Plaintiff prevails on its APA claim, one available remedy is vacatur of the agency’s unlawful
decision. Defenders of Wildlife v. U.S. Environmental Protection Agency, 420 F.3d 946, 978 (9th Cir.
15 2005) (“Typically, when an agency violates the Administrative Procedure Act … we vacate the agency’s
16 action and remand to the agency to act in compliance with its statutory obligations.”) (overturned on
17 unrelated grounds in Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007)). This
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would arguably reinstate NIJ’s earlier certification of Dragon Skin under the 2005 Interim Standards and
offer Plaintiff some relief.
Defendant’s motion to dismiss this case as moot is DENIED.
21
22 //
23
5.
24
Motion for Summary Judgment
a.
Standard of Decision.
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26
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3
Although this finding is not dispositive of the motion to dismiss as moot, it has consequences for Plaintiff’s case. Because
the 06 Standards apply to Dragon Skin, any claim based upon injury stemming from lack of certification under the most
recent standard is moot. Therefore, Plaintiff cannot rely upon any such injury (i.e., loss of sales under the BVP program,
which requires certification under the most recent standard) to support standing.
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1
2
Defendant moves for summary judgment on the issue of standing and on the merits of Plaintiff’s
APA claim. Slightly different standards apply to each.
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4
5
6
The traditional analysis applies to standing, a jurisdictional prerequisite for which Plaintiff bears
the burden of proof at all stages of its case. Summary judgment is appropriate when the pleadings and
the record demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled
7
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party seeking summary judgment bears the
8
initial burden of informing the court of the basis for its motion and of identifying those portions of the
9
pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.”
10
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where, as here, the movant seeks
11
summary judgment on a claim or issue on which the non-movant bears the burden of proof, the movant
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14
“can prevail merely by pointing out that there is an absence of evidence to support the nonmoving
party’s case.” Id. “If the moving party meets its initial burden, the non-moving party must set forth, by
15 affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine issue for
16 trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). “Conclusory,
17 speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and
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20
defeat summary judgment.” Soremekun, 509 F.3d at 984; see also Lujan v. National Wildlife Fed’n, 497
U.S. 871, 888-89 (1990).
21
A slightly modified approach is used when evaluating motions for summary judgment in an APA
22 case:
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A court conducting APA judicial review may not resolve factual questions, but instead
determines “whether or not as a matter of law the evidence in the administrative record
permitted the agency to make the decision it did.” Sierra Club v. Mainella, 459 F. Supp.
2d 76, 90 (D.D.C. 2006) (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th
Cir.1985)). “[I]n a case involving review of a final agency action under the [APA] ... the
standard set forth in Rule 56[a] does not apply because of the limited role of a court in
reviewing the administrative record.” Id. at 89. In this context, summary judgment
becomes the “mechanism for deciding, as a matter of law, whether the agency action is
15
1
supported by the administrative record and otherwise consistent with the APA standard of
review.” Id. at 90.
2
3
San Joaquin River Group Auth. v. Nat’l Marine Fisheries Serv., 819 F. Supp. 2d 1077, 1083-84 (E.D.
4
Cal. 2011).
5
b.
6
(1)
7
8
9
Standing.
General Legal Framework.
Standing is a judicially created doctrine that is an essential part of the case-or-controversy
requirement of Article III. Pritikin v. Dept. of Energy, 254 F.3d 791, 796 (9th Cir. 2001). “In essence the
10 question of standing is whether the litigant is entitled to have the court decide the merits of the dispute
11 or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). To have standing, a plaintiff must
12 show three elements:
13
First, the plaintiff must have suffered an “injury in fact” -- an invasion of a legally
protected interest which is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical. Second, there must be a causal connection between the injury
and the conduct complained of -- the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent action of some third party
not before the court. Third, it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
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16
17
18
19
20
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and quotations omitted).
The Supreme Court has described a plaintiff’s burden of proving standing at various stages of a
case as follows:
Since [the standing elements] are not mere pleading requirements but rather an
indispensable part of the plaintiff’s case, each element must be supported in the same
way as any other matter on which the plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at the successive stages of the litigation. At the
pleading stage, general factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss we presume that general allegations
embrace those specific facts that are necessary to support the claim. In response to a
summary judgment motion, however, the plaintiff can no longer rest on such “mere
allegations,” but must “set forth” by affidavit or other evidence “specific facts,” Fed.
Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken
to be true. And at the final stage, those facts (if controverted) must be supported
adequately by the evidence adduced at trial.
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24
25
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28
Id. at 561.
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2
3
4
5
Standing is evaluated on a claim-by-claim basis. “A plaintiff must demonstrate standing ‘for
each claim he seeks to press’ and for ‘each form of relief sought.’” Oregon v. Legal Servs. Corp., 552
F.3d 965, 969 (9th Cir. 2009) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)).
“[S]tanding is not dispensed in gross....” Lewis v. Casey, 518 U.S. 343, 358, n.6 (1996).
The actual-injury requirement would hardly serve the purpose ... of preventing courts
from undertaking tasks assigned to the political branches[,] if once a plaintiff
demonstrated harm from one particular inadequacy in government administration, the
court were authorized to remedy all inadequacies in that administration.
6
7
8
Id. at 357.
9
10
11
(2)
This Court’s Previous Ruling on Standing.
In addressing the previous motion to dismiss, the Court rejected Defendant’s argument that
12 Plaintiff did not have standing to pursue a claim based on this type of alleged injury:
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Rather than responding to this factual assertion, Defendant asserts that Plaintiff does not
have standing to pursue a claim based upon this type of alleged injury because the injury
is not redressable. Doc. 59 at 6. More specifically, Defendant argues that redress of such
an injury “depends on the unfettered choices made by independent actors not before the
courts and whose exercise of broad and legitimate discretion the courts cannot presume
either to control or to predict.” Id. at 7 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605,
615 (1989)). Defendant glosses over the nuanced nature of this aspect of the standing
jurisprudence, which was discussed at length by the U.S. Supreme Court in its seminal
standing decision:
When the suit is one challenging the legality of government action or
inaction, the nature and extent of facts that must be averred (at the
summary judgment stage) or proved (at the trial stage) in order to establish
standing depends considerably upon whether the plaintiff is himself an
object of the action (or forgone action) at issue. If he is, there is ordinarily
little question that the action or inaction has caused him injury, and that a
judgment preventing or requiring the action will redress it. When, however
... a plaintiff’s asserted injury arises from the government’s allegedly
unlawful regulation (or lack of regulation) of someone else, much more is
needed. In that circumstance, causation and redressability ordinarily hinge
on the response of the regulated (or regulable) third party to the
government action or inaction-and perhaps on the response of others as
well. The existence of one or more of the essential elements of standing
“depends on the unfettered choices made by independent actors not before
the courts and whose exercise of broad and legitimate discretion the courts
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1
cannot presume either to control or to predict,” ASARCO Inc. v. Kadish,
490 U.S. 605, 615 (1989) (opinion of KENNEDY, J.) [additional citation];
and it becomes the burden of the plaintiff to adduce facts showing that
those choices have been or will be made in such manner as to produce
causation and permit redressability of injury. [Citation] Thus, when the
plaintiff is not himself the object of the government action or inaction he
challenges, standing is not precluded, but it is ordinarily “substantially
more difficult” to establish. [Citation]
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6
7
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15
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20
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23
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). According to Lujan, the
unfettered choices test is far more likely to be relevant in a case where the challenged
government regulation is of someone other than the plaintiff.
Even if the “unfettered choices” test does apply more generally here, the mere
intercession of a third party does not necessarily doom standing. A “chain of causation
[may have] more than one link,” so as long as the connection between the injury and
cause is not “hypothetical or tenuous.” Nat’l Audubon Soc. v. Davis, 307 F.3d 835, 849
(9th Cir.2002). In Davis, the Ninth Circuit found that the Audubon Society, an
organization dedicated to protection and observation of birds, had standing to challenge a
regulation that forbade the use of a certain type of game trap because “[r]emoval of the
traps leads to a larger population of predators, which in turn decreases the number of
birds and other protected wildlife.” Id. The Ninth Circuit reasoned: “This chain of
causation has more than one link, but it is not hypothetical or tenuous; nor do appellants
challenge its plausibility.” Id.
[A]t the motion to dismiss stage, Plaintiff has presented evidence to support a finding
that officers may purchase armor not in compliance with the most recent NIJ standard “so
long as the armor meets one of the NIJ standards.” Doc. 57-1 at ¶ 12. Thus, “maintaining
compliance status under the 2005 Interim Requirements continues to be important [] to
Pinnacle Armor, Inc....” Id. This is sufficient to establish standing at the motion to
dismiss stage.
Doc. 61 at 17-19.
(3)
Defendant’s Motion for Summary Judgment Re Standing.
Defendant now moves for summary judgment on the issue standing, arguing that Plaintiff’s
factual submissions are insufficient to prove standing. “In response to a summary judgment motion ...
24 the plaintiff can no longer rest on ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence
25 ‘specific facts,’ ... which for purposes of the summary judgment motion will be taken to be true.” Lujan
26 504 U.S. at 561.
27
28
In opposition to the motion for summary judgment, Plaintiff submits the September 26, 2012
18
1
Declaration of Murray Neal, the President and CEO of Pinnacle Armor, who states:
2
9.
Numerous of officers “walk in” each year and order body armor from Plaintiff.
These officers generally cover a part of the purchase price and are authorized to buy so
long as the armor meets one of the NIJ standards. These officers also consider the
reputation of Plaintiff’s armor products in the law enforcement and military community
in connection with their purchase decisions. Although it my belief that despite the actions
of the NIJ, there exists a minority of officers who are knowledgeable and understand the
factual background and history of the singular warranty based compliance revocation by
the NIJ who still regard Dragon Skin and its related police level body armor as the
preeminent body armor in the world. On the other hand, it is my observation that the
majority of officers do not understand the critical details of the factual background and
history of the singular warranty based compliance revocation by the NIJ, and therefore,
Plaintiff’s reputation in the law enforcement community has been severely damaged by
the NIJ revocation of compliance. Thus, maintaining compliance status under the 2005
Interim Requirements continues to be important both to Pinnacle Armor, Inc. and to law
enforcement men and women as a whole now and in the foreseeable future.
3
4
5
6
7
8
9
10
10.
On August 3, 2007, the NIJ informed Plaintiff that its Dragon Skin flexible rifle
defeating body armor was deemed no longer compliant with the 2005 Interim
Requirements and would be removed from the NIJ’s Listing of Compliant Armor. The
effect of this revocation of compliance has resulted in the loss of sales of body armor by
Pinnacle Armor, Inc. In that same regard, law enforcement agencies who desire to
purchase the Dragon Skin flexible rifle defeating body armor are no longer able to do so
because of the lack of compliance with NIJ standards. This is so even though the
revocation was due not to failure of any of Pinnacle Armor Inc.’s body armor vests, but
because of a perceived warranty issue by the NIJ. I am informed and believe that should
NIJ compliance be reinstated under the 2005 Interim Requirements, law enforcement
agencies would submit new purchase orders for the Dragon Skin flexible rifle defeating
body armor as they would be able to obtain reimbursement from non-BVP programs,
such as FEMA and federal RICO.
11
12
13
14
15
16
17
18
Doc. 66-1.
To withstand a motion for summary judgment on an issue for which the plaintiff bears the
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20
21
burden of proof, a plaintiff must produce “[a]t least some ‘significant probative evidence.’” T.W. Elec.
Serv. v. Pac. Elect. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting First Nat’l Bank of
22 Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). “A scintilla of evidence or evidence that is merely
23 colorable or not significantly probative does not present a genuine issue of material fact.” Addisu v. Fred
24 Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Further, the Ninth Circuit has “refused to find a
25
26
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28
‘genuine issue’ where the only evidence presented is ‘uncorroborated and self-serving’ testimony.”
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (citing Kennedy v. Applause,
19
1
Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)); see also United States v. $133,420.00 in U.S. Currency, 672
2
F.3d 629, 638-39 (9th Cir. 2012). In Villarimo, for example, a plaintiff in a sex discrimination action
3
4
5
6
7
8
presented her own affidavit, asserting that male co-workers were punished less severely than she was for
making a particular mistake on the job. 281 F.3d at 1059. The Ninth Circuit noted that the plaintiff cited
only her own “self-serving” and “uncorroborated” affidavit in support of this factual assertion, without
explaining how she knew this to be true. Id. at 1059 n.5.
Defendant maintains that the above-quoted paragraphs from the Neal Declaration suffer from the
9
same defect, namely that they are “self-serving” and “uncorroborated.” Doc. 64-1 at 14. However,
10
Defendant ignores more recent Ninth Circuit authority that qualifies Villarimo. The Ninth Circuit has
11
recognized that a party’s affidavits are always self-serving and therefore “[i]n most cases, [ ] that an
12
13
14
affidavit is self-serving bears on its credibility, not on its cognizability for purposes of establishing a
genuine issue of material fact. Only in certain instances-such as when a declaration states only
15 conclusions, and not such facts as would be admissible in evidence can a court disregard a self-serving
16 declaration for purposes of summary judgment.” S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir.2007)
17 (internal quotation marks, alterations, and citations omitted). Phan distinguished Villiarimo on the basis
18
19
20
21
that the affidavit in Villiarimo contained facts outside of the declarant’s personal knowledge. Id. at 910.
Phan noted that information based on private first person knowledge will often lack corroboration, but
that this should not lead to defeat at the summary judgment stage. Id. (“it is unremarkable that the
22 defendants could not otherwise corroborate their personal conversations.”). “A judge must not grant
23 summary judgment based on his determination that one set of facts is more believable than another.” See
24 Nelson v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009).
25
26
Nevertheless, even allowing for a plaintiff’s own affidavit, declaration, or deposition to contest
essential facts singlehandedly, the non-moving party must still identify specific facts. Plaintiff must
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28
20
1
present sufficient evidence on which a rational trier of fact could find its favor. See Wallis v. J.R.
2
Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). “Where the facts contained in an affidavit are ‘neither in
3
4
5
6
7
8
the form of legal conclusions nor speculative, but are material facts based on [the affiant’s] personal
recollection of the events,’ the affidavit is not conclusory.” United States v. $223,178.00 in Bank
Account Funds, 333 F. Appx 337, 338 (9th Cir. 2009) (quoting Orsini v. O/S Seabrooke O.N., 247 F.3d
953, 960 n. 4 (9th Cir. 2001)).
Mr. Neal, as the CEO and President of Pinnacle, is certainly in the position to know whether
9
officers “walk-in” off the street to purchase armor without a subsidy. He states, under penalty of perjury,
10
that they do so. Defendant has presented no evidence to the contrary. For purposes of summary
11
judgment, this is sufficient to establish Pinnacle’s standing. Defendant’s motion for summary judgment
12
13
14
15
16
17
18
19
that Pinnacle lacks standing is DENIED.
c.
Merits.
Finally, Defendant moves for summary judgment on the merits of Plaintiff’s APA claim,
arguing, based upon the revised Administrative Record (“AR”), that the NIJ lawfully revoked Dragon
Skin’s compliance status. Doc. 64-1 at 23. Among other things, Defendant maintains that “[t]he record
contains internal memoranda that explain in detail the NIJ’s technical assessment of Plaintiff’s three
20 submissions and the basis for its conclusion that none of the submissions demonstrated that the armor
21 model at issue would maintain its ballistic performance over its declared warranty period when
22 subjected to environmental stresses, including extreme temperature cycling.” Doc. 64-1 at 17.
23
24
25
(1)
Rule 56(d) Request.
In response, Plaintiff maintains that the AR is “woefully incomplete,” listing a number of
26 documents/items it claims were wrongfully omitted from the AR. Doc. 66 at 16-18. In addition, Plaintiff
27 requests and opportunity to file a motion for “expanded discovery.” Id. at 24. Plaintiff correctly points
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21
1
out that in the Ninth Circuit, a court may expand its review beyond the administrative record prepared
2
by the agency in certain, narrow circumstances: “(1) if necessary to determine whether the agency has
3
4
5
6
considered all relevant factors and has explained its decision, (2) when the agency has relied on
documents not in the record, or (3) when supplementing the record is necessary to explain technical
terms or complex subject matter.” Southwest Ctr. for Biological Diversity v. United States Forest Serv.,
7
100 F.3d 1443, 1450 (9th Cir. 1996) (internal citations and quotations omitted). Whether and to what
8
extent Plaintiff is entitled to supplement the record is not yet before the court for decision because
9
Plaintiff has yet to file a relevant motion.
10
11
Federal Rule of Civil Procedure 56(d) permits a court to defer consideration of or deny a motion
for summary judgment in order to allow time for Plaintiff to obtain additional evidence, but only if
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13
14
Plaintiff has “shown by affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition” without that additional evidence. Here, the only relevant declaration is
15 that filed by Murray Neal in connection with the Plaintiff’s opposition to the present motion. Doc. 66-1.
16 Mr. Neal lists a number of documents that he calls “glaring” examples of ways in which the
17 administrative record is incomplete. Id. Although the significance of each of these documents to
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19
20
21
Plaintiff’s defense is not clearly articulated, it appears that many of these documents go to the issue of
whether Defendant’s interpretation of test results was rational. Although the 56(d) showing is weak, the
Court believes a brief deferral of the instant motion is warranted to permit a closer examination of
22 whether the record should be supplemented to include documents already in Plaintiff’s possession. In
23 contrast, nothing in Plaintiff’s opposition or the Neal declaration supports permitting further discovery
24 in any traditional sense before the present motion is adjudicated.
25
26
27
28
(2)
Merits Briefing Issues.
The Court is concerned about Plaintiff’s counsel’s grasp of APA jurisprudence. For example,
22
1
Plaintiff argues that there are “material disputes” of fact as to whether the NIJ arbitrarily and
2
capriciously revoked Dragon Skin’s compliance status. Doc. 66 at 16. This argument demonstrates a
3
4
5
fundamental misunderstanding of judicial review under the APA, which is based exclusively on the
administrative record.4 See San Joaquin River Group Auth., 819 F. Supp. 2d at 1083-84.
Likewise, on the merits, Plaintiff argues that NIJ’s decision “reflects a fundamental lack of
6
7
understanding of the technology” behind Dragon Skin, Doc. 66 at 19; that the “Department of Defense
8
information relied upon by NIJ has been roundly criticized,” id. at 21; and that “the passage of five years
9
since compliance status was revoked without any ballistic failure … demonstrates that the NIJ Warranty
10
concerns [were] baseless, arbitrary, and capricious,” id. at 23-24. These arguments fail to acknowledge
11
the relevant standards under the APA, which govern a Court’s review of agency action. 5 U.S.C. §
12
13
14
706(2). For example, under the APA’s “arbitrary and capricious” standard, a court must defer to the
agency on matters within the agency’s expertise, unless the agency completely failed to address some
15 factor, consideration of which was essential to making an informed decision. Nat’l Wildlife Fed’n v.
16 NMFS, 422 F.3d 782, 798 (9th Cir. 2005). A court “may not substitute its judgment for that of the
17 agency concerning the wisdom or prudence of the agency’s action.” River Runners for Wilderness v.
18
Martin, 593 F.3d 1064, 1070 (9th Cir. 2010).
19
This is the busiest district court in the nation. This Court cannot and will not make legal
20
21
arguments on behalf of any party. Further disregard for relevant precedent will not be tolerated.
22
IV. CONCLUSION
23
For the reasons set forth above:
24
25
4
It is for this reason that, although Local Rule 260(e) directs that each motion shall be accompanied by a
“Statement of Undisputed Facts” that shall enumerate each of the specific material facts on which the
26 motion is based and cite the particular portions of any document relied upon to establish that fact, in
27 APA cases, such statements are generally not required because all relevant facts are contained in the
agency’s administrative record. San Joaquin River Group Auth., 819 F. Supp. 2d at 1084.
28
23
1
(1) Defendant’s renewed motion to dismiss as moot is DENIED;
2
(2) Defendant’s alternative motion for summary judgment that Plaintiff lacks standing is
3
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5
6
7
DENIED;
(3) Decision on Defendant’s alternative motion for summary judgment on the merits is
DEFERRED pursuant to Fed. R. Civ. P. 56(d), and the following order pursuant to Rule 56(d)(3) is
entered:
(a) Plaintiff is granted until November 23, 2012 to file a motion to supplement the
8
9
administrative record. This motion should be accompanied by detailed justifications explaining why
10
each and every document submitted meets one of the Southwest Center exceptions. Plaintiff shall set the
11
motion for hearing in accordance with the local rules, with oppositions and replies to follow
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13
14
accordingly.
(b) No additional discovery will be permitted prior to adjudication of the motion for
15 summary judgment, as Plaintiff has failed to provide specific reasons, as required by Rule 56(d),
16 justifying an extended delay to permit additional discovery.
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18
(c) Once any motion to supplement is decided, the Court will address the need for further
briefing or additional proceedings.
19
20 SO ORDERED
Dated: October 26, 2012
21
/s/ Lawrence J. O’Neill
United States District Judge
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