Andreas-Myers v. National Aeronautics and Space Administration et al

Filing 10

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 4/28/2017. (aos, Deputy Clerk)

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IN TIlE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

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SASHA ANDREAS-MYERS,

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Case No.: G.IH-16-341O

I'etitioner,

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'v.

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NATIONAL AERONAUTICS
SPACE ADMINISTRATION,

AND
et al.,

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Respondents.

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MEMORANDUM

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OPINION

Pursuant to the Administrative Procedures Act ("'APA"). 5 lJ.S.c. ~ 701.

el self..

Sasha

Andreas-Myers tllcs this Petition for Judicial Review and Injunctive Relief against the National
Aeronautics and Space Administrative ("NASA") and R. Andrew Falcon. in his ofllcial capacity
as Chief Counsel for the Goddard Space Flight Center (collectively. "Respondents" or "NASA ").
regarding NASA's linal decision denying Andreas-Myers'

request to depose NASA employee

Armando J. Radich. Now pending bel(lfe the Court is Respondents' Motion lor Summary
Judgment. ECF No. 6.1\0 hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the 1()llowing
reasons. Respondents' Motion for Summary Judgment is granted.
I.

BACKGROUND1
In or around 2006. Andreas-Myers ("Petitioner") tIled a complaint with Calilornia's

Department of Fair Employment and Housing against her employer Northrup Grumman

I Unless otherwise
indicated, the facts arc taken from the Administrative
Record. which was filed in its entirety on
the Court"s electronic tiling system (CMlECF). ECF NO.5-I. For context. the Court has also included several tllcts
Irom Petitioner"s Complaint as they relate 10 the California litigation.

("'Northrup").

alleging sex discrimination

6. Petitioner and Northrup
Pctitioncr

subsequently

and sexual harassment
entercd into a conlidential

agrccd to resign li'om her position with Northrup.
In 2013. NASA's

at two California

Goddard

Mission Assurance
assurancc

Orticcr

personnel.

scttlemcnt

ECF No. I ,;

agrccmcnt

sought to increasc staffing

lor thc Jamcs Wcbb Spacc Tclcscopc

at 113 Armando

and

!d.

Spacc Flight Ccntcr ("Goddard")

facilities wherc components

wcrc being built. ECF NO.5-I

in the workplace.

("JWsr')"

J. Radich. in his rolc as thc Chief Satety and

lor thc .IWST projcct. submittcd

the rcquest for additional

mission

!d. at 10-1 J. When Goddard wants to incrcasc starting at a rcmote location.

it has thc option to ohtain support serviccs from contractors.
support scrviccs is outlined

in thc Audits. Asscssmcnts

!d. at II. The process to ohtain

and Assurances

Scrviccs ("'Ar)

contract.

!d.
Following
new stalTmcmhcr
Northrup

thc protocols

dictated hy thc A3 contract.

at cach of two lacilitics

locatcd in California.

through a contract it had with the .let Propulsion
Calit()fJlia. !d. Radich idcntificd

Moorpark.

position and SQA Serviccs ("SQA").

Radich suhmitted

the nccessary

a sub-contractor

a requcst to add a

onc in Rcdondo

Beach. run by

Lab (".11'1."). and anothcr in
skills and cxperiencc

rcquircd

for thc

on thc A3 contract in chargc of staffing.

scnt him two resumes to rcview. [d.
Radich revicwed

the two resumes and placcd onc individual

based on his or hcr qualilications.
Redondo

Beach but his dccision

approaching

[d. Hc considercd

placing Pctitioncr

was "put on hold when.lPI.

the staffing nced differcntly

at thc Moorpark

at that location'"

inlonncd

at thc Northrup

location.
facility in

[himj that it planned on

Id at 12. According

to Radich . .IPI.

The J\VST is a "large inlbred space telescope," due to be launched in October 2018. whose mission is to
:'comptement ond e'tcnd the discoveries of the Hubble Space Telescope:' ECF NO.5-I
10.
.' Pin ciles 10 documents liIea to the Court"s electronic filing system (CM/ECF) refer to the page numbers generated
by that system.

:2

0'

declined oversight
employees

by Goddard.

and collcagucs

or any another third party. and dccidcd to use "its own

at [Northrup]:'

Id. .IPL and Goddard

.IWST but neithcr tield center has authority

over the other: thus. Radich agreed with .lPL's

Id. at 11-12. Because there was "no longer any need to stalTthe

stafling decision.

Beach location with a contractor
[the] position:'

mission assurance

represcntativc.

Redondo

no other candidate

was givcn

Id at 12.

On or around August 8. 2013. SQA stated to Petitioner
NASA that Plaintiff had Ieli Northrup
August

are working jointly to build the

in a "negative

16. 2013. SQA noti lied Petitioner

that someone at Northrup
III. at 26. Subsequcntly.

manner:'

that the position had "dissolvcd"

had told
on

because Northrup

would not allow her onto its facility. Id.
Shortly therealicr.
Angcles

Superior

the eircumstanccs
Northrup's

Iiled a lawsuit against both Northrup

Court. allcging that Northrup
of her fonner employmcnt

premises.

the .lPLlNorthrup

Petitioner

which. together.

facility. ECF No. I

made defamatory

with Northrup

led to her rejection

'i 11. The

and SQA in Los

statements

to Radich regarding

and that she was not allowed on

from the mission assurance

claims against cach defcndant

tracks. with Petitioner's

claims against Northrup

proceeding

through arbitration

against SQA continued

through motions practice in court. 1£1.

to havc Radich submit a sworn declaration

hire PetitiOller. ECF No. 6-1 at 5.4 Alier receiving
settle her claims against SQA. but she continued

concerning
Radich's

to prosecute

took scparate
while her claims

'i 12.

In March 2015. NASA received and grantcd a rcquest from an attorney
Northrup

position at

representing

his role in the decision not to

declaration.

Petitioner

decided to

her claims against Northrup.

ECF

No. I ~ 14.
~ It appears that although NASA received the request for a declaration from an attorney representing Northrup. it
was allegedly introduced by SQA in support of their Motion for Summary Judgment and by Northrup in the
arbitration proceedings. Eel' No. 1 ~~ 13.14.

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On March 15.2016. at the request of Petitioner's attorney. the Baltimore County Circuit
Court issued a subpoena ordering Radich to appear at a deposition. ECF NO.5-I at 14. On March
21. 2016. an attorney Ij'Oll1NASA' s Oftlce of the Chief Counsel objected to the subpoena.
saying. in relevant part. that Petitioner's request failed to specify ..the information sought and its
relevance to the proceeding in connection with which it is requested:' Iii. at 19.
On AprilS. 2016. Petitioner responded with a more detailed explanation of her need to
depose Radich. Id at 25. Specifically. she explained that they had recently deposed Ed Snider. an
SQA employee. who had contacted Petitioner about the mission assurance position with NASA.
Id at 26. Ilis testimony. and associated documentary evidence. demonstrated that someone at
Northrup had told NASA that Petitioner had len Northrup in a "negative manner:' Iii. Snider
lurther testilied that he learned Irom Nancy Hendrick. a Iloneywell employee also involved in
staftlng. that Petitioner was not allowed on Northrup's facilities. Id Snider also testilied that
Ilendrick learned that inliJrmation li'om someone at NASA. who he believed was Radich. Id
Petitioner explained that Hendrick was already scheduled to be deposed. and. based on Snider's
testimony. they expccted her to state that Radich was the NASA employee who had heard the
defamatory statements Ii'om NOl1hrup. Iii.
Petitioner stated that Radich's testimony would be ..the last part of the circuit connecting
Plaintifr s denial of employment and Northrup's dclamatory statement" and would "reveal the
identity of the person at Northrup Grumman that spoke about PlaintilTin such a negative
manner:' Id at 27. Petitioner also addressed NASA's altcrnative proposal. suggested over a
phone call. that Radich could potentially respond to additional questions in a declaration "in light
of the travel required of him. and his important daily role in the construction of the [JSWT]." Id
Pctitioner stated that she would be open to such an arrangemcnt if Hendrick did not identify

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Radich as her source at NASA. but otherwise, "his li\'e testimony would be essential and
necessary:' Id.
On April 7,2016. NASA issued a final decision regarding Petitioner's request to depose
Radich. !d at 5-6. Relying on their internal regulations regarding requests for inll)J"Illation.the
Chief Counsel decided that Radich could not be deposed because "[c]ompliance with the request
would demand too many hOllrs away from Mr. Radich' s job as the Chief Safety and Mission
Assurance Officer for the [JWST], the largest and most important project at [Goddard]."' and
would "further involve the Agency in litigation wholly unrelated to NASA's mission:' Id. at 5.
The Chief Counsel also considered the f~lctthat "Mr. Radich has already provided
answcrs to the information sought by the deposition:'

!d Specifically, NASA noted that in his

declaration Radich stated that. "J was not told any negative inll)J"Inationabout [Petitioncr] from
anyone at [Northrupj, I was never told about the circumstances regarding the prior cmploymcnt
of [Petitioner] with [Northrupj, or the reasons why her employment ended. I also was never told
anything about whether [Petitionerj was eligible Illr future employment with [Northrup] or
whether shc could work on [Northrup's

1 premises:'

!d at 5-6.

NASA indicated that if. aner Hcndrick's deposition, Petitioncr had additional qucstions
for Radich, it would be "willing to consider a request fllr additional answers by way of a
dcclaration:'

!d at 6.

On June 17, 20 J 6. Pctitioner sent NASA another leiter, reiterating its request to dcpose
Radich. Id. at 31-34. In her leiter, Petitioner argued that it was "disingenuous,

arbitrary and

capricious" lor NASA to state that it did not want to be involved in this litigation, in light ofthcir
prior cooperation with a previous request lor a deelaration Irom Radich, !d at 32. She also
argued that. having deposed Hendrick. the veracity of Radich's prior declaration was now in

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dispute. Id Speeilically, she stated that Hendrick testilied about a telephone conversation where
Radich told llendrick "words to the effcct that (al Mr. Radich had learned from his counterpart at
Northrup .... that [Petitioner's

I prior

employment ended in a negative manner or in a manner that

was involuntary on the part of [Petitioner]. (b) that [Petitioner] would not be allowed onto
[Northrup's1 faeility and (el most importantly, that because of these two pieces of inlllrll1ation
told to Mr. Radich by [Northrup],

[Petitioner] was no longer a suitable candidate lor the

contemplated work:' Id at 33.
Petitioner argued that these opposing narratives presented a "quandary" that would be
"awkward to explain away" and implied that Radieh had been "less than truthful when it suit[ed]
the short-term needs and interests of NASA 's subeontractors." Id. at 34.
In response to NASA's concern that a deposition would take Radich away from his role
overseeing the construction of the JWST, Petitioner stated that "if Mr. Radieh and NASA can
'waste time' Illr the defendants in this aetion, they can do so for the plaintiffs. Otherwise, NASA
is being arbitrary and capricious:'

Id. Petitioner offered to be llexible in terms of location and

timing Illr the deposition but ultimately warned that if NASA did not permit Radich to be
deposed, she would Iile an ancillary action in federal coul1, seeking review of NASA's decision
under the AI' A. Id
On June 29, 2016, NASA responded via email to Petitioner's renewed request to depose
Radieh. Id at 7. In the email. NASA stated that while they had considered Petitioner's request.
"the Chief Counsel again deelines to permit Mr. Radich to testify for the reasons stated in
NASA's previous letter of April 7,2016:'

Id NASA also reiterated that it would be "willing to

eonsider permitting Mr. Radich to answer relevant qucstions related to Ms. Nancy Ilendrick's
testimony by way of declaration:'

Id

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On Octobcr 11. 2016. Pctitioncr filed the instant case. requcsting that this Court reverse
NASA's final decision regarding Pctitioner's request to depose Radich and enter a mandatory
injunction compelling his deposition. ECF No. 1.5 Respondents filed a Motion ti.Jr Summary
Judgment on Fcbruary 3. 2017. ECF No, 6, Petitioner respondcd on March 27. 2017. ECF NO.8.
and Respondents filed a timcly Reply. ECF NO.9,
II.

STANJ)AIW

OF' REVIEW

"When the Unitcd States is not a party to [the undcrlyingj ... proceeding. the 'sole avenuc
ror review of an agcncy's rcrusalto permit its employees to comply with subpoenas' is the
APA:' Saller 11Ic' \', Lexill"lolI IllS, A"ell(\',

IlIc.. NO.5: 13.CV .180.1'.2014

(E.D.N.C. Oct. 31. 2014) (quoting COMSATCorp.

WL 5580954. at *4

\', Nal'l Sci, FOlllld.. 190 FJd 269. 274 (4th

Cir. 1999». Under the APA.the Court shall"hold unlawful and set aside agency action. findings
and conclusions" that arc "arbitrary. capricious. an abusc or discretion. or otherwisc not in
accordancc with law:' 5 U.S.c. ~ 706(2)(A),
In evaluating agency-decision making under the APA. the Court's only role is to
determine whether "the decision was based on a consideration or the rclevant factors and
whether there has been a clear error of judgment:'

Cili=ells o(Ol'erlolll'ark

\', Volpe, 401 U,S,

402.416 (1971 ). a!>ro"ale" Oil ol!>er "rollll"S, CalifilJ10 \', Sallders, 430 U.S. 99 (1977), The
scope or review "undcr the 'arbitrary and capricious' standard is narrow and a court is not to
substitute its judgment ror that of thc agency:' Molor Vehicle M/;'s. Ass'll \', Slale Farm Mill.
A 1110,IllS, Co .. 463 U.S. 29. 43 (1983), Furthermore. administrative actions are presumed valid:

thus. a "court will not second guess an agency decision or question whether the decision made
was the best one:' C & IV Fish Co.

1',

Fox, 931 F,2d 1556. 1565 (D,C. Cir. 1991). The APA only

~ While the initial subpoena also requested that NASA produce certain doculllents. ECF No. 1-6. Petitioner limited
her request for judicial review to Radich's deposition.

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requires the Court to decide whether the agency "articulated a rational connection between the
facts tound and the choice made:' Baltimore Gas & Dec. Ca. \', Natural Res. De( Caunci/. 462
U,S, 87. 105 (1983) (citations omitted),
Section 706 of the AI' A directs a court evaluating an agency action to "review the whole
record or those parts of it cited by a party:' 5 U.S.c.

* 706. Therelore.

"a court reviewing an

administrative tribunal's decision on the record 'should have betore it neither more nor less
intonnation than did the agency when it made its decision .... Washillgtall Metro. Area 71'£ll1sit
..lath. \'. Local 689, Amalgamated hans it Union. 818 F. Supp. 2d 888. 907n. 20 (D. Md. 2011)
(quoting IMS, /'. C. \'. All'lll'e::, 129 F.3d 618. 623 (D.C.Cir.1997) (internal citations and quotation
marks omitted». An "agency may not skew the record by excluding unfavorable
inlormation .... or [omit] intonllation simply because it did not rely on it for its tinal decision:'
Otsuka /'harm. Ca. \'. Bunrel/. No. GJII-15-852. 2015 WL 1579127. at *2 (D. Md. Apr. 8.2015)
(citations omitted). Furthermore. "an agency is entitled to a strong presumption of regularity that
it properly designated the administrative record:' and "[sjupplementalion

of the administrative

record is the exception. not the rule." /'aL'. S!lares Suhdh'isiall, Cal. Water Dist. \'. U.S Army
Call).\ aj'Eng'rs. 448 F. Supp. 2d I. 5 (D. D.C. 2006).
When a court is asked to review a tinal agency decision under the AI' A, the normal
summary judgment standard does not apply due to the "limited role of a court in reviewing the
administrative record:' See Raherts \'. Uniled Stales. 883 F. Supp. 2d 56. 62 (D. D.C. Mar. 23.
2012). Instead. summary judgment "serves as the mechanism lor deciding. as a matter of law.
whether the agency action is supported by the administrativc record and is otherwise consistent
with the AI'A standard of review:' Kaiser Found Hasps. \'. Sehelius. 828 F. Supp. 2d 193. 198
(D.D.C. 2011). aff'd. 708 F.3d 226 (O.c. Cir. 2013) (superseded by statute on other grounds)

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(citing Rich"rd

1'.

INS. 554 r.2d 1173, 1177 & n. 28 (D.C. Cir. 1977». Thus, "the timction ofthc

district court is to detcrminc whether or not as a matter of law the evidence in the administrative
record permitted the agency to make the deeision it did'" Id (internal quotations and citations
omitted).
III.

DISCUSSION
A. Designation of Record
As a preliminary matter, Petitioner alleges that NASA has tililed to provide the Court

with thc completc administrative record. Specifically, she argues that NASA should have
included in the record "documents reflecting the communications betwcen Northrup and NASA"
regarding Northrup's 2015 request for a declarationli'om

Radich. ECF NO.8 at 7-8-" NASA

disputes this, stating that the record bet()rc the Court is completc and includes "all materials
NASA considered, directly or indirectly, in making its determination .... ' ECF NO.9 at 4.
A petitioner must overcome the "strong presumption" that thc agcncy properly
dcsignated the administrative rccord. Pac. Shores Suhdi1'isioll. Cal. Waler Disl .. 448 r. Supp. 2d
at 5. To do so, the petitioner must provide "clear evidcnce" that the record was impropcrly
dcsignated by identifying "reasonable, non-speculative grounds for its bcliefthat the documents
werc considered by the agency and not included in the record'" Id at 5-6 (citation omitted): see
"Iso

7.1'171'('(/

Il7c.

1'.

Slui/"Ia.

No. CIV.A. WMN-99-307, 1999 WL 728104, at *3 (D. Md. Aug.

1I, 1999) ("'The court assumes the agency properly designated the Administrativc Record absent
clear l'1'idl'l7C1'to the contrary"') (emphasis

in the original) (quoting Bar MK Ral7chl's \'. YUl'lIer,

994 F.2d 735, 740 (10th Cir. 1993)). Petitioner has fililed to meet this burdcn.

Petitioner refers to Northup's "March 2013 request""but as the events
date. the COlirt helieves this to be an error. ECF No.8 at 7.

h

9

ill

question had not even

OCCUlTed on

that

Although Petitioner alleges the existence or additional documents. she lilils to assert
"non-spcculative grounds" lor her belierthat such documents were considered by NASA in their
decision making proccss. Petitioner mercly posits that such communications

"r were J at least

indirectly considered by NASA whcn denying Petitioner's request" and that NASA
"intentionally provided an incomplete administrative record to withhold unfavorable evidence
Irom these proceedings: i.e. the stark contrast in treatment providcd to Northrup versus the
Petitioner .. :' ECF NO.8 at 8-9. Yet, these allegations lililto demonstratc clear evidence that
NASA would have. or should have, considercd year-old communications with Northup when
rcviewing Petitioner's dcposition request, rather thanloCllsing on Radich's declaration, which. in
its estimation, addressed the matters that would be the subjcct ofPetitioner's

requcsted

dcposition. See Ohio Va/ley Em'/I. Coal. \'. IVhi/mall. No. CIV.A. 3:02-0059, 2003 WI. 43377, at
*5 (S.D.W. Va. Jan. 6, 2003) (ordering record to be supplemented when agency's statement in
the record illustrated rcliance on materials not included in the record).
Petitioncr's additional argument that NASA's failure to include its communications with
Northrup "implies that NASA ... did not even consider the prior declaration in finalizing its
decision" is refuted by the administrative record before the Court. ECF NO.8 at 9. In its April 7,
2016 final decision, NASA specifically relics on statements from Radich's declaration and
Radich's complete declaration has been included in the administrative record. ECF NO.5-I at 5.
6,10-13.
While the record in this case is not extensive, it provides sufficient detail fiJI' the Court to
review what was a relatively simple decision by NASA. Moreover, NASA has included
documents that could be seen as unfilVorable to it. sueh as Petitioncr's statement that Radich's
live testimony was "essential and necessary:' ECF No. 5.1 at 27. and Petitioner's repeated

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implications that NASA "employees had becn "less than truthful when it suit[edj thc short-tcrm
nccds and interests ofNASA's

subcontractors:'

ECF No. 5-1 at 33. In short. this is not a casc

whcrc an agcncy appcars to bc skcwing the rccord in their favor. As Petitioner has failed to mcct
thcir burden of providing "c1car and convincing" cvidence that the administrativc is incomplctc.
thc Court will not order supplemcntation.
B. NASA's Decision

Regarding

Deposition

Request

Petitioner next contends that NASA's decision to deny hcr request to deposc Radich was
arbitrary and capricious. Bascd on the administrative rccord. thc Court linds that NASA
appropriately considercd relcvant factors. as outlined in its intcrnal rcgulations. and providcd a
rational basis for its decision. Thcrcforc. thc Court will grant summary judgment in NASA's
favor.
Federal agcncics. such as NASA. may promulgatc intcrnal regulations that govcrn how
the agency should respond to routinc rcqucsts. such as requests for subpocnas. 5 U.S.c. ~ 30 I. In
general. thcsc rcgulations arc rclerred to as "housckeeping" regulations. with the sub-sct that
govern subpoenas refen'cd to as "Tollhy regulations:' in relCrcnce to a relatcd Suprcmc Court
casc. Uniled Slales ex rei. 7iJllhy 1'. Ragen. 340 U.S. 462 (1951). See COMSAT Corp.

I'.

Na!,1 Sci.

Found. 190 F.3d 269. 272 n. 3 (4th Cir. 1999)
In thc contcxt ofa Icgal proceeding not involving thc Unitcd Statcs. NASA's 7iJllhy
rcgulations rcquirc that a party rcqucsting information Ii'om a NASA cmploycc "li,rnish thc
Office of Gcneral Counscl [with] a writtcn. detailcd statcmcnt ofthc inl(mnation sought and its
relevance to the procccding in connection with which it is rcqucsted:'

14 C. F.R. ~ 1263.103: see

also ECF No. 5-1 at 35.7 The Gcncral Counscl. or his dcsignce. must approve an cmploycc' s
response to such a rcqucst and "all valid dcmands" must bc honored. !d ~~1263.1 04 and
7

The General Coutlsclmay waive this requirement if it is deemed unnecessary. It!.

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1263.105: see a/so Eel' No. 5-1 at 35. When deciding how to respond to a request. the General
Counscl "may" consider the following:
(a) Whether such disclosure or appearance is appropriate under the rules of
procedure governing the legal proceeding in which the demand arose.
(b) Whether disclosure
concerning privilege.

is appropriate

under the rclevant

substantive

law

(c) Whether disclosure might improperly reveal trade secrets. or commercial or
linancial inll.lI"Illationthat is confidential or privileged.
(d) Whether disclosure might reveal classified information.
(e) Whether disclosure would violate a specific applicable
provision. federal statute or regulation. or executive order.

constitutional

(1) Whether appearance of the requested employee would seriously implicate an

interest of the Agency such as conservation of employee time Il.)r conducting
official business. avoidance of expending appropriated monies Ii.))"
non-federal
purposes. or avoidance of involving the agency in controversial issues not relatcd
to its mission.

14 C.F.R. ~ 1263.105
In its lin'll dccision letter to Pctitioner on April 7. 2016. NASA explicitly rclies on
several factors discussed in subsection (1) of its TOIl!Jy regulations to deny Petitioner's request Il.)[
a deposition. Applying these guidelines. the Chief Counsel stated that Radich could not be
deposed because "[cjompliance with the request would demand too many hours away from Mr.
Radich'sjob

as the Chief Safety and Mission Assurance Officer lar the [JWSTj. thc largest and

most important project at [Goddard]."' ECr: NO.5-I at 5. Additionally. "permitting [Radich's j
testimony would further involve the Agency in litigation wholly unrclated to NASA's mission."
Ill.
The ChicI' Counsel also considered thc lilct that Radich had already providcd a
declaration that was responsive to Petitioncr's requcst. NASA noted that Petitioner had
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speculated that Radich's testimony "would also reveal the identity of the person at Northrup
Grumman that spokc about [Pctitioner] in a negative manner:' ECF NO.5-I at 5, but Radich had
already stated that. "I was not told any negative inlill'll1ation about [Petitioner]lrom

anyone at

[Northrup]. I was never told about the circumstances regarding the prior employment of
[Petitioncr] with [Northrup

I. or the

reasons why hcr employmcnt cnded. I also was never told

anything about whether [Petitioner] was c1igible li)r future employment with [Northrup] or
whether she could work on [Northrup's1 premises:' Id at 5-6. NASA thus reasonably weighed
Petitioner's need to conduct a deposition, in light of her access to a prior, responsive, declaration,
against the impact that complying with Petitioner's request would have on the conservation of
employee time. Moreover, NASA acknowledged Petitioner's belief that she was about to acquire
additional information alier Hendrick's deposition that could create a need fill"further
investigation. In response, NASA stated that il: alier Hendrick's deposition, Petitioner had
additional questions for Radich, it would be "willing to consider a request for additional answers
by way of a declaration:'

Id at 6.

In its June 29. 2016 email responding to Petitioner's renewed request to depose Radich,
NASA again relied on the rationale it had articulated in its April 7.2016
response to Petitioner's

letter. Id at 7. In

renewed argument that Radich's declaration was lilrther called into

question by Hendrick's testimony, NASA again reiterated that it would be "willing to consider
permitting Mr. Radich to answer relevant questions rclated to Ms. Nancy Hendrick's testimony
by way of declaration:'

Id

"When an agency is not a party to an action. its choice of whether or not to comply with a
third-party subpoena is essentially a policy decision about the best use of the agency's
resources:' CO.l1SAT Corp .. 190 F.3d at 278. Courts have uphcld an agency's decision to not

13

comply with a subpoena whenthc decision was reasonable and in accordance with their TOllhy
regulations. See Saller Inc .. 2014 WL 5580954. at *4: see also Spence \'. Nellnth

r. Supp.

. .'1)'.1' Inc .. 530
..

2d 739. 745 (D. Md. 2008).

Here. NASA's decision to deny Petitioner's rcquest to depose Radich is reasonable and
reflects a clear application of the factors NASA may considcr pursuant to its TOllhy regulations.
such as conservation of cmployee time and limiting the agency's involvement in litigation
unrelated to NASA's mission. And. contrary to Petitioncr's argumcnt. the fact that NASA
previously provided a declaration to Northrup does not make a latcr decision to deny a requcst
for a deposition arbitrary and capricious. An agency is free to considcr the additional burden that
a second request would entail aller already having responded to a first request. In Saller. thc
court upheld the Army Corps' decision to rcfuse to comply with a second subpocna aller the
Army Corps stated that they had "already expended signilicant timc and eft()rt" on the first
document production and "believed that int(JrInation to be sufficient to comply with Dcfcndant's
request:' Saller Inc .. 2014 WL 5580954. at *6. Although Pctitioner distinguishes Saller on the
basis that it involved the same party making the additional request. that distinction is
inconsequential where. hcre. NASA is offering Petitioner thc same discovery it providcd
Northrup - a declaration of Radich. It is the additional burden of a deposition to which they
object. Thus. this casc is more akin to Saller than Sin/de/on
2009), on which Petitioner relies. See Single/on

\'. Habbi/, 588 F.3d 1078 (D,C. (ir.

\'. Hahhi/, 588 F.3d 1078, 1082 (D,C. (ir. 2009)

(finding agency was arbitrary and capricious wherc it took differcnt position on the samc issue).
Petitioner also argucs that NASA's decision was arbitrary and capricious because the
agency failed to consider Hcndrick's April deposition testimony. which allegedly contradicts
Radich's declaration. First. as NASA correctly argues. thcre is no evidcncc to suggcst that the

14

transcript of Hendrick's testimony, altached to the instant petition, was provided to NASA before
it made its determination. Instead, NASA receivcd a summary of Hendrick's testimony in
Petitioner's reconsideration leiter, the substance of which Petitioner had foreshadowed in her
lirst leiter. Second, rather than disregarding this "relevant I~lctor:' NASA specilically indicated
that it would be "willing to consider permilting Mr. Radich to answer relevant questions related
to Ms. Nancy Hendrick's testimony by way of declaration," ECF No. 5.1 at 7,
While Petitioncr's preference for a deposition is understandable, the scope of review
"under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its
judgment for that of the agency" Molor Vehicle M/i's. Ass'll \'. SWle Farm

Mill.

A 1110. Ills. Co..

463 U.S, 29, 42-43 (1983). This Court "will not second guess an agency decision or question
whether the decision made was the best one:' C & II' Fish Co. \'. Fox. 931 F.2d 1556, 1565 (D,C.
Cir. 1991), Thus, the Cmllt tinds that NASA's decision to deny Petitioner's deposition request
appropriately considered relevant factors, as outlined in its internal regulations, and provided a
rational basis for its deeision.

IV,

CONCLUSION

For the I(Hegoing reasons, Respondents' Motion

f(l!'

Summary Judgment. ECI' NO.6,

shall be granted. A separate Order 1()lIows,

Dated: April

v{2017

~li:---United States District Judge

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