NIO et al v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY et al

Filing 240

MEMORANDUM OPINION AND ORDER denying 226 Motion to Strike. See Order for details. Signed by Judge Ellen S. Huvelle on 3/4/19. (lcesh2) Modified on 3/5/2019, to change document type to Opinion.(gdf).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KUSUMA NIO, et al.,
Plaintiffs,
v.

Civil Action No. 17-0998 (ESH)

UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs’ Motion to Strike Portions of Defendants’ Opposition to
Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Cross Motion for Summary
Judgment. (Pls.’ Mot. to Strike Cross Mot. for Summ. J. (Portions), Dec. 21, 2018 (ECF No.
226) (“Mot. to Strike”).) Plaintiffs argue that “portions” of defendants’ cross motion for
summary judgment (Defs.’ Cross Mot. for Summ. J., Nov. 30, 2018 (ECF No. 219) (“Cross
Mot.”)) should be stricken because it (1) cites documents outside the administrative record, (2)
incorporates by reference previous pleadings and thereby “circumvent[s] page limits,” and (3)
misstates administrative record facts. (Mot. to Strike at 1.) For the reasons stated herein, the
motion to strike is denied.
Related to the present motion, pending before the Court are the parties’ cross motions for
partial summary judgment. (See Pls.’ Mot. for Partial Summ. J., Aug. 13, 2018 (ECF No. 177);
Cross Mot.) Plaintiffs challenge policies of U.S. Citizenship and Immigration Services
(“USCIS”) relating to the processing of naturalization applications of foreign nationals who
enlisted in the U.S. Army via the Military Accessions Vital to the National Interest (“MAVNI”)

program. On July 7, 2017, USCIS issued an internal guidance (the “July 7 Guidance”)
instructing that a MAVNI’s naturalization application is not to be processed until the U.S.
Department of Defense (“DOD”) has completed all enhanced security checks for MAVNI
recruits. (USCIS Administrative Record at 5 (“USCIS AR”).)
Plaintiffs challenge the July 7 Guidance under the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 706(2), 553, 552. Accordingly, the Court’s review is restricted in scope.
See, e.g., Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981) (“It is well settled
that judicial review of agency action is normally confined to the full administrative record before
the agency at the time the decision was made.”); see also Camp v. Pitts, 411 U.S. 138, 142
(1973) (“[T]he focal point for judicial review should be the administrative record already in
existence, not some new record made initially in the reviewing court.”). A “noted exception to
the general rule” permits courts to look outside the administrative record for certain limited
purposes. Envtl. Def. Fund, 657 F.2d at 285. Where there is such a “failure to explain
administrative action as to frustrate effective judicial review,” the court may “obtain from the
agency, either through affidavits or testimony such additional explanation of the reasons for the
agency decision as may prove necessary.” Camp, 411 U.S. at 142-43. Extra-record materials,
however, must be “merely explanatory of the original record and should contain no new
rationalizations.” Envtl. Def. Fund, 657 F.2d at 285 (citing Bunker Hill Co. v. EPA, 572 F.2d
1286, 1292 (9th Cir. 1977)); see also id. (“If the reviewing court finds it necessary to go outside
the administrative record, it should consider evidence relevant to the substantive merits of the
agency action only for background information. . . .”) (quoting Asarco, Inc. v. EPA, 616 F.2d
1153, 1160 (9th Cir. 1980)).
With these parameters in mind, the Court has already considered and ruled upon the

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question of whether and for what purposes the parties may cite materials from outside the
administrative record.1 Plaintiffs previously filed a remarkably similar motion to strike
defendants’ first opposition and cross motion. (Pls.’ Mot. to Strike, Oct. 19, 2018 (ECF No. 204)
(“First Mot. to Strike”); see also Defs.’ Cross Mot. for Summ. J. & Opp’n to Pls.’ Mot. for
Summ. J., Sept. 14, 2018 (ECF No. 186).) In considering that motion, the Court instructed the
parties that while arguments about the justification for the July 7 Guidance must be based on the
administrative record, other materials could be cited “to rebut some of [plaintiffs’] arguments
that are not focused strictly on what was the rationale for [the July 7 Guidance]. . . . [I]n terms of
justifying what you did on July 7th, you’re limited to the administrative record.” (Tr. of
Teleconference at 37, Nov. 7, 2018 (ECF No. 223).) In its order granting the motion in part, the
Court specified certain extra-record documents that could be cited for these purposes, but in no
way did it mean to imply that these citations were the only ones that could be used as rebuttal:
defendants may cite the July 28, 2017 Miller declaration (ECF No. 25-2) and
documents from the DoD administrative record (see ECF No. 81) if necessary to
rebut plaintiffs’ arguments. Defendants also may cite any portion of the July 7,
2018 Miller declaration (ECF No. 19-7) if necessary to rebut plaintiffs’
arguments.
(Order, Nov. 15, 2018 (ECF No. 217).)
Defendants subsequently re-filed their cross motion, and plaintiffs have now filed a
second motion to strike essentially complaining about the same issues that they had raised
before. They continue to complain about citations to documents outside the administrative

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The administrative record for the July 7 Guidance initially was compiled by USCIS. (See
Administrative Record Index, Mar. 1, 2018 (ECF No. 111).) Subsequently the Court ordered
that certain additional declarations and contemporaneous documents would be considered part of
the administrative record, and that plaintiffs also could file other specific documents as
appendices to their pleadings. (See Order at 1, Apr. 12, 2018 (ECF No. 135); see also Index of
Administrative Record, Nov. 9, 2018 (ECF No. 216-1); Index of Pls.’ Appendix, Nov. 9, 2018
(ECF No. 216-2).)
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record, but go on to cite examples that are permissible under the Court’s Order. For example,
plaintiffs accuse defendants of citing extra-record documents to “try to avoid one of the factors
they failed to consider – the DoD ‘time-out’ policy.” (Mot. to Strike at 5.) Contrary to
plaintiffs’ argument, in the allegedly offending passages defendants point to extra-record
documents to rebut plaintiffs’ argument that USCIS failed to consider the possibility that soldiers
would become ineligible to naturalize if they “timed out” of the MAVNI program (i.e., were
enlisted through the program for two years before accession) before DOD completed their final
Military Security Suitability Determination (“MSSD”). (See Cross Mot. at 33-34 (citing
defendants’ filing of June 15, 2018 (ECF No. 157), which responded to, among other things, an
inquiry from the Court regarding the possibility of MAVNI soldiers timing out of the program;
and the DOD Memo of July 27, 2018 (ECF No. 26), which officially extended the time-out
policy from two to three years).) These two documents explain that the time-out policy was
extended from two to three years within weeks of the July 7 Guidance, and as a result, no class
member was affected by the two-year rule.
Plaintiffs also attempt to restrict defendants’ use of extra-record materials that have been
cited as background information. The Court did not previously address specifically the use of
documents outside the record for purposes of background, but it is well established that the
parties and the Court may look outside the administrative record if necessary to understand the
background and context. See Envtl. Def. Fund, 657 F.2d at 285 (explaining that extra-record
materials may be cited only as “merely explanatory of the original record”). Here, the Court
must rely on certain additional background information to understand the MAVNI program, how
it operated both before and after the July 7 Guidance, and the relationship between DOD’s

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regulatory requirements for MAVNIs and USCIS’s criteria for naturalization. 2 Given the
complexity of this program, it is not possible to view the July 7 Guidance in isolation. While the
parties may not use extra-record documents to provide post-hoc rationalizations for the July 7
Guidance, necessary background information and rebuttal arguments are not limited to the
administrative record. See Envtl. Def. Fund, 657 F.2d at 285; see also Order, Nov. 15, 2018
(“Defendants may not cite the March 22, 2018 Renaud declaration (ECF No. 128-1) to explain
the USCIS July 7 Policy.”).)3
Plaintiffs next argue that the Court should strike unspecified portions of defendants’ cross
motion because they incorporate by reference previously filed briefs, thereby circumventing page
limits. (See Mot. to Strike at 6-7.) It is true that a party may not incorporate by reference an
argument made at an earlier stage of the litigation in order to “evade word limits.” See AlTamimi v. Adelson, 2019 WL 660919 at *3 (D.C. Cir. Feb. 19, 2019) (citing Gerlich v. DOJ, 711
F.3d 161, 173 (D.C. Cir. 2013); Davis v. PBGC, 734 F.3d 1161, 1167 (D.C. Cir. 2013)). At the
same time, motions to strike generally are “disfavored,” Capitol Sprinkler Inspection, Inc. v.
Guest Serv., Inc., 630 F.3d 217, 226 (D.C. Cir. 2011) (quoting Stabilisierungsfonds Fur Wein v.
Kaiser Stuhl Wine Distrib., 647 F.2d 200, 201 (D.C. Cir. 1981)), and without a showing of
prejudice, they need not be granted. See, e.g., Phillips v. Mabus, 319 F.R.D. 36, 38-39 (D.D.C.

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For that reason, contrary to plaintiffs’ argument (see Mot. to Strike at 9 n.3), the Court is not
constrained by the administrative record if it needs to consult DOD’s Adjudicative Guidelines or
other DOD manuals to understand if DOD’s background checks are relevant to a “MAVNI
recruit’s eligibility for naturalization.” (July 7 Guidance at 1 (USCIS AR 4).)
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Plaintiffs also complain about defendants’ reference to a criminal complaint alleging violations
by a MAVNI recruit. (Mot. to Strike at 4 (citing Cross Mot. at 22 n.12).) Defendants agree that
this complaint is not part of the administrative record. (See Defs.’ Opp’n to Mot. to Strike at 5,
Feb. 15, 2019 (ECF No. 238).) Since defendants do not rely on it as a justification for the July 7
Guidance, there is no reason to strike this reference. The Court knows not to rely on extra-record
citations in its analysis of whether defendants’ actions complied with the APA.
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2016) (denying a motion to strike where doing so would “not result in any undue prejudice” to
the moving party).
Plaintiffs point to defendants’ references to “prior filings,” “arguments,” and “the
Statutory and Regulatory Backgrounds of the naturalization process” as described in previous
briefs. (Mot. to Strike at 6-7 (quoting Cross Mot. at 3, 33-34, 4 n.3, 46 n.23).) These crossreferences do not directly relate to the issue before the Court—the rationale for the July 7
Guidance—so there is no issue of evading page limits. Nor have plaintiffs shown that failure to
strike portions of the cross motion would result in any prejudice to them. Furthermore, it is
ironic that plaintiffs complain about defendants’ evasion of page limits. Plaintiffs have now filed
two motions to strike, totaling 22 pages, that include many arguments that properly belong in
their summary judgment pleadings. Plaintiffs’ first motion to strike contained the same
argument about incorporations by reference (see First Mot. to Strike at 9-10 (citing the same
passages as those cited in the present motion)), and while the Court ultimately ordered
defendants to re-file the cross motion omitting citations that were improper for other reasons, the
Court did not consider the argument about incorporation by reference to be sufficiently
meritorious to warrant comment the first time, and it is no more persuasive this time.
Finally, plaintiffs argue that defendants rely on facts that are not supported by their
citations because they constitute material misstatements of the underlying documents. (See Mot.
to Strike at 8-10.) Even assuming arguendo that plaintiffs were correct, these are the very
arguments that belong in the summary judgment pleadings. Indeed, plaintiffs make the same
argument in their reply brief and need not repeat it here. (See Pls.’ Reply to Opp’n to Mot. for
Partial Summ. J. & Opp’n to Defs.’ Cross Mot. at 17-19, Dec. 21, 2018 (ECF No. 227).) In
addition, plaintiffs contend that “most egregious” among defendants’ purported misstatements of

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the record is defendants’ argument that the MSSD is the “conclusion” of the “enhanced DoD
security check[]” process, rather than a separate adjudicatory step as plaintiffs argue. (Mot. to
Strike at 9 (citing the July 7 Guidance).) This is an issue of what is a fair inference based on the
record, and as is clear from the pleadings, the parties’ characterization of the record is often
diametrically opposed. Thus, contrary to plaintiffs’ argument (see Mot. to Strike at 10), there are
often disputes about “facts” in the administrative record or facts are cited as support for a host of
conflicting arguments. Apropos, the Court must note that the hypothetical attributed to the Court
during a conference call was in no way meant (as plaintiffs suggest (see Mot. to Strike at 9)), to
be a finding of a “gaping hole” in the administrative record or an endorsement of plaintiffs’
position that the MSSD was not known to USCIS until after July 7, 2017. Rather, this is a
central question on summary judgment, not a matter of misstatement of the record.
In deciding the parties’ summary judgment motions, the Court will disregard any
arguments it determines to be unsupported by the USCIS administrative record. To do so, the
Court need not strike unspecified portions of defendants’ pleading that plaintiffs argue are
contrary to their interpretation of the record.
For the foregoing reasons, it is hereby
ORDERED that Plaintiffs’ Motion to Strike, ECF No. 226, is DENIED.
SO ORDERED.

ELLEN SEGAL HUVELLE
United States District Judge
Date: March 4, 2019

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