Krivonos v. U.S. Department of Justice et al

Filing 37

MEMORANDUM AND ORDER dated 6/6/13 that the Court finds that plaintiffs objections to Magistrate Judge Bloom order dated May 2,2013, are without merit. Defendants' request for a pre-motion conference is denied without prejudice. On or before Jun e 26, 2013, defendants shall make and submit to Judge Bloom a written showing of "good cause" for their failure to comply with herscheduling order of December 6, 2012. If Judge Bloom finds good cause or concludes that summary judgment is necessary in this case, defendants may renew the request for a pre-motion conference. ( Ordered by Judge Sandra L. Townes on 6/6/2013 ) c/m to plaintiff received in docketing 6/14/13. (Guzzi, Roseann)

FILE!
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

!N ClERK'S OFi .
U.S O!STRICT COUP.-

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BORIS A. KRIVONOS,
Plaintiff,

BROOKLYN OFFICl

-againstU.S. DEPARTMENT OF JUSTICE; EXECUTIVE
OFFICE FOR IMMIGRATION REVIEW, BOARD
OF IMMIGRATION APPEALS; OFFICE OF THE
GENERAL COUNSEL; JENNIFER J. BARNES,
BAR COUNSEL; U.S. DEPARTMENT OF
HOMELAND SECURITY,
Defendants.

MEMORANDUM AND ORDER
ll-CV-2729 (SLT) (LB)

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TOWNES, United States District Judge:
In letters dated March 7, 2013, and April 3, 2013, plaintiff Boris A. Krivonos, an attorney
proceeding pro se, requested orders (1) compelling defendants to comply with certain discovery
requests and (2) precluding defendants from moving for summary judgment. In an order dated
May 2,2013, Magistrate Judge Lois Bloom denied plaintiffs motion to compel but granted the
motion to preclude summary judgment. Judge Bloom ruled that, because the defendants had
missed the deadline for filing a pre-motion conference request, defendants could not move for
summary judgment unless they demonstrated "good cause" for their failure to comply with the
scheduling order.
Plaintiff now objects to Judge Bloom's decision denying his motion to compel. In
addition, defendants have filed a pre-motion conference request which, while not e)(pressly
referencing Judge Bloom's order, appears to attempt to demonstrate good cause for the failure to
comply with the scheduling order. For the reasons set forth below, this Court finds plaintiff s
objections to be without merit, denies defendants' pre-motion conference request without
prejudice, and directs defendant to show "good cause" before Judge Bloom for their failure to
comply with her scheduling order.

BACKGROUND
In June 2011, plaintiff commenced this action seeking, inter alia, an order (I) declaring
that decisions of the Board ofImmigration Appeals ("BIA") which expelled him from practice
before the BlA, the Immigration Courts and the U.S. Department of Homeland Security ("DHS")
and denied him reinstatement were arbitrary and capricious, (2) directing that he be reinstated to
practice before these entities, and (3) awarding him compensatory damages. Although plaintiffs
complaint is unclear, plaintiffs response to defendants' motion to dismiss clarified that plaintiff
is principally seeking review of the BIA and DHS determinations under the "abuse of discretion"
standard of § 706(2)(A). Plaintiffs response alluded to the Federal Tort Claims Act ("FTCA"),
but plaintiffs complaint does not allege an FTCA claim. In addition, while plaintiffs complaint
compares the facts of his case to the facts of a case involving Charles H. Bowser, an immigration
attorney who was reinstated to practice by defendants, the complaint does not articulate an Equal
Protection claim.
On March 7, 2013, plaintiff wrote a letter to Judge Bloom, the magistrate judge
supervising discovery in this case, to request an order (I) compelling defendants to comply with
certain discovery requests and (2) precluding defendants from moving for summary judgment.
On April 3, 2013, plaintiff wrote a second letter to Judge Bloom, requesting that she compel
defendants to produce their administrative file relating to Bowser.
In an order dated May 2,2013 (the "May 2 Order"), Judge Bloom denied plaintiffs
motions to compel. Preliminarily, Judge Bloom noted that "defendants arguer d) that the only
remaining questions before the Court are pure questions of law under the Administrative
Procedures Act CAPA'), 5 U.S.C. § 706," May 2 Order at I, and that "plaintiffs request for
production of Charles H. Bowser's administrative file was made on March 13, 2013, after

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discovery ... had closed." Id. at 2. Judge Bloom then proceeded to address the merits of
plaintiffs request, stating, "even if plaintiffs request had been made timely, plaintiff is not
entitled to discovery outside the administrative record .... " Id. Judge Bloom explained:
"Generally, a court reviewing an agency decision is confined to the
administrative record complied by that agency when it made the
decision." National Audubon Soc. v. Hoffman, 132 F.3d 7, 14 (2d
Cir. 2011) (citing Florida Power & Light Co. v. Lorion, 470 U.S.
729, 743-44 (1985) (internal citation omitted). Departure from the
"record rule" is only appropriate in limited circumstances such as
"when there has been a strong showing in support of a claim of bad
faith or improper behavior on the part of agency decisionmakers or
where the absence of formal administrative findings makes such
investigation necessary in order to determine the reasons for the
agency's choice." Tummino v. Von Eschenbach, 427 F. Supp. 2d
212,230 (E.D.N.Y. 2006) (quoting Hoffman, 132 F.3d at 14).
May 2 Order at 2. Judge Bloom concluded that plaintiff had not established bad faith or
improper behavior by defendants and that the discovery plaintiff sought was, therefore,
unwarranted.

In a footnote in her May 2 Order, Judge Bloom precluded defendants from moving for
summary judgment. Referencing a scheduling order dated December 6, 2012 (ECF No. 22),
which required the parties to file their pre-motion conference requests prior to February 20,2013,
Judge Bloom noted that "the deadline for requesting a pre-motion conference in anticipation of
moving for summary judgment hard] already passed." May 2 Order at I, n. 1. Then, citing to
Rule 16(b)(4) of the Federal Rules of Civil Procedure, Judge Bloom ruled that defendants could
not move for summary judgment unless they "demonstrate [d] good cause for failing to comply
with the scheduling order." Id. Judge Bloom concluded her order by directing the parties to
"contact Judge Townes's chambers to set a date for a pre-trial scheduling conference." Id. at 3.

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Defendants' Pre-Motion Conference Request
On May 9, 2013, defendants' counsel sent this Court a pre-motion conference request.
That request did not mention Judge Bloom's order precluding defendants from moving for
summary judgment unless they could demonstrate good cause. Rather, the letter noted only that
Judge Bloom had directed the parties to request a pre-trial scheduling conference, then stated:
Instead, by this letter, Defendants seek a pre-motion conference to
address summary judgment motions in this action. Defendants had
delayed seeking such a conference - despite the February 20,2013
deadline included in the Court's scheduling order of December 10,
2012 (ECF No. 22) - because such a request was untimely in light
of Plaintiffs efforts to compel discovery. With the conclusion of
that dispute, however, the time is ripe to address the summary
judgment motion(s) the Court's December 10,2012 scheduling
order anticipated.

In an endorsed order dated May 10,2013, this Court denied defendants' pre-motion
conference request on the ground that it did not comply with the procedural requirements set
forth in Section III.A of this Court's Individual Motion Practices & Rules. See https://www.
nyed.uscourts.gov/pub/rules/SLT -MLR.pdf. On May 15,2013, defendants' counsel responded
to this Court's May 10,2013, order by submitting a revised pre-motion conference request. The
first two paragraphs of this revised request were identical to the first two paragraphs of
defendants' original pre-motion conference request. Indeed, the only substantial difference
between defendants' May 9 and May 15 submissions was that the latter included an explanation
of the bases for defendants' proposed motion.

Plaintiff's Submission relating to Judge Bloom's Order
On May 9, 2013, plaintiff mailed a letter addressed to "The Honorable Sandra L.
Townes," which began, "I am requesting you reconsider the Order dated May 2, 2013." Letter to
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Hon. Sandra L. Townes from Boris A. Krivonos, dated May 9, 2013, at I. Plaintiffs letter
objected to Judge Bloom's order in three major respects. First, plaintiff asserted that Judge
Bloom was incorrect in stating that his request for production of Charles H. Bowser's
administrative file was made after discovery had closed. Plaintiff represented that he initially
requested the administrative file from defendants on December 12,2012, when discovery was
still open.
Second, plaintiff argued that Judge Bloom was incorrect in stating that the only remaining
questions before the Court were pure questions of law. Plaintiff asserted that there are questions
of fact as to "whether a government agency can be held responsible for two opposite decisions
under the same set of facts." Jd. at 2. Plaintiff also implied that this Court should strike
regulations which "provide for agency discretion to reach to [sic] opposite decisions for the same
set of facts." Id.
Third, plaintiff argued that he had demonstrated "bad faith" through his assertions that
defendants treated him differently from Mr. Bowser. Plaintiff argued that in order to have acted
"[i]n good faith, Defendants must have acted similarly in similar situations." Id. at 2. Plaintiff
asserted that if defendants did not act in good faith, they acted in bad faith because "there is
nothing in between." Id. at I.
Although plaintiffs May 9,2013, letter expressly requested that this Court "reconsider
the Order dated May 2, 2013, this Court construed his letter as objecting to Judge Bloom's pretrial order pursuant to Rule 72(a) of the Federal Rules of Civil Procedure. Accordingly, by
endorsed order dated May 17, 2013, this Court directed defendants to respond to plaintiff s
objections on or before May 23, 2013. Defendants filed their response on May 23, 2013,
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asserting, inter alia, that plaintiff's "only remaining claims ... arise under the ... AP A" and that
plaintiff "is entitled to no discovery beyond the Administrative Record .... " Defendants'
Responses to Plaintiff's Objections to Magistrate Judge's Order, dated May 23, 2013
("Defendants' Responses") at 2. Defendants also assert that plaintiff's complaint does not allege
a disparate treatment Equal Protection claim or challenge the regulations underlying defendants'
decision to deny plaintiff reinstatement to the Immigration bar.

DISCUSSION

Plaintifi's Objections to the Magistrate Judge's Order
Rule 72(a) of the Federal Rules of Civil Procedure provides that a party may object to a
magistrate judge's order relating to a non-dispositive pretrial matter within 14 days of being
served with a copy of that order. A district judge "must consider timely objections and modifY
or set aside any part ofthe order that is clearly erroneous or is contrary to law." Fed. R. Civ. P.
72(a). Under this highly deferential standard of review, a district court may reverse the order
only if "on the entire evidence," the district court is "left with the definite and firm conviction
that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242 (2001).
Accordingly, "a party seeking to overturn a discovery order bears a heavy burden." AP Links,

LLC v. Global Golf Inc., No. 08-CV-1730, 2011 WL 888261, at *4 (E.D.N.Y. Mar 14,2011).
Having carefully considered plaintiff's objections to Judge Bloom's order, this Court
concludes that plaintiff has not met this heavy burden. First, while plaintiff's initial request for
production of Mr. Bowser's administrative file may have been made in December 2012,
plaintiff's requests to compel production of that file were made more than a month after
discovery had closed. Judge Bloom's order dated December 6, 2012, directed that the parties
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complete discovery by February 6, 2013. However, plaintiff did not even begin to request an
order compelling compliance with his discovery requests until March 7, 2013. Accordingly,
plaintiffs requests were untimely.
Morever, as defendants correctly note, Judge Bloom did not rely on the fact that
plaintiffs requests were untimely. Rather, Judge Bloom reached the merits of plaintiffs motion,
holding that even if plaintiffs requests had been made timely, plaintiff was not entitled to
discovery outside of the administrative record. Therefore, even if Judge Bloom had erred in
finding that plaintiffs request was untimely, that error would have been inconsequential.
With respect to plaintiffs second objection, this Court notes that Judge Bloom never
actually stated that the only remaining questions before the Court were pure questions oflaw.
Rather, Judge Bloom noted that "defendants argue [d] that the only remaining questions before
the Court are pure questions of law under the Administrative Procedures Act (' AP A'), 5 U .S.C.
§ 706." May 2 Order at I (emphasis added).
Judge Bloom did, however, tacitly assume that plaintiffs complaint seeks only review of
defendants' determinations pursuant to 5 U.S.c. § 706(2)(A). The focal point of that review
"should be the administrative record already in existence, not some new record made initially in
the reviewing court." Camp v. Pitts, 411 U.S. 138,142 (1973). Accordingly, as Judge Bloom
correctly noted, a court reviewing an agency's decision is generally "confined to the
administrative record complied by that agency when it made the decision." May 2 Order at 2
(quoting National Audubon Soc. v. Hoffman, 132 F.3d 7,14 (2d Cir. 2011)). 'The task of the
reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the
agency decision based on the record the agency presents to the reviewing court." Florida Power
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& Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985) (citing Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402 (1971».

Except in "rare circumstances," a reviewing court is not "empowered to conduct a de
novo inquiry into the matter being reviewed and to reach its own conclusions based on such an

inquiry." Id. at 744. To fall within the "rare circumstances" exception, a plaintiff must first
make a "strong showing of bad faith or improper behavior." Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 420 (1971). Thus, "[c]ourts considering challenges to administrative

decisions have refused to sanction discovery in the absence of a strong showing of bad faith or
other extraordinary circumstances." IPT Co., Inc. v.

Us.

Dep 't of Treasury, No. 92 Civ. 5542

(JFK), 1992 WL 373480, at *2 (S.D.N.Y. Dec. 3,1992) (citing National Nutritional Foods Ass'n
v. Mathews, 557 F.2d 325, 332-33 (2d Cir. 1977), and KFC Nat 'I Mgmt. Corp. v. NLRB, 497

F.2d 298,304-05 (2d Cir. 1974».
In arguing that there are factual issues that must be resolved in this case, plaintiff alludes
to legal claims that are not alleged in the complaint. As defendants correctly note, plaintiff s
complaint does not allege a disparate treatment Equal Protection claim or challenge the
regulations underlying defendants' decision to deny plaintiff reinstatement to the Immigration
bar. Similarly, while plaintiffs response to defendants' motion to dismiss mentioned claims for
defamation and claims arising under the Federal Tort Claims Act ("FTCA"), plaintiffs complaint
did not mention either the FTCA or defamation. See Krivonos v.

us.

Dep 't ofJustice, No. 11-

CV-2729 (SLT)(LB), 2012 WL 4569319, at *12 (E.D.N.Y. Oct. 1,2012). This Court fully
concurs with defendants' assertion that the only claim clearly raised by plaintiffs complaint is a
request for judicial review under 5 U.S.C. § 706(2)(A) ofthe Administrative Procedures Act.
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With respect to plaintiffs second objection, this Court finds that plaintiff has not
demonstrated "bad faith" through his assertions that defendants treated him differently from Mr.
Bowser. "Bald assertions of impropriety are not sufficient" to make out a "strong showing of
bad faith or improper behavior." IPT Co., Inc., 1992 WL 373480, at *2. Rather, to make out
"bad faith," a party "must show specific facts to indicate that the challenged action was reached
because of improper motives." Friends of the Shawangunks, Inc. v. Watt, 97 F.R.D. 663, 668
(N.D.N.Y. 1983). Since plaintiff has not adduced any evidence that defendants had improper
motives for denying him reinstatement to the Immigration bar, this Court cannot find that Judge
Bloom's decision to deny his motion to compel was clearly erroneous.

Defendants' Pre-Motion Conference Request
In a footnote contained in her May 2 Order, Judge Bloom granted plaintiffs request for
an order precluding defendants from filing a motion for summary judgment for failure to meet
the February 20, 2013, deadline set forth in Judge Bloom's scheduling order dated December 6,
2012. Citing to Rule 16(b)(4) of the Federal Rules of Civil Procedure, Judge Bloom ruled that
defendants could not move for summary judgment unless they demonstrated "good cause" for
their failure to comply with the scheduling order. May 2 Order at 1, n. 1.
In seeking this Court's permission to move for summary judgment, defendants do not
mention Judge Bloom's ruling or expressly address the issue of whether there was "good cause"
for failing to request a pre-motion conference before the February 20,2013, deadline. To be
sure, defendants' pre-motion conference requests assert that defendants "delayed seeking such a
conference ... because such a request was untimely in light of Plaintiff s efforts to compel

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discovery." See Letter to Hon. Sandra L. Townes from J. Max Weintraub dated May 9,2013;
Letter to Hon. Sandra L. Townes from J. Max Weintraub dated May 15,2013, at I. However,
this Court notes that plaintiffs requests to compel discovery, which were dated March 7, 2013,
and April 3, 2013, were filed several weeks after the February 20, 2013, deadline.
Before seeking permission to move for summary judgment, plaintiffs must make the
showing of "good cause" required by Rule 16(b)(4) of the Federal Rules of Civil Procedure and
by Judge Bloom's order. Defendants are directed to make that showing in a writing addressed to
Judge Bloom on or before June 26, 2013. In addressing that submission, Judge Bloom should
consider the question of whether a trial can be held in this case, or whether summary judgment is
necessary to resolve plaintiffs claim pursuant to 5 U.S.C. § 706(2)(a).
CONCLUSION
For the reasons set forth above, this Court finds that plaintiffs objections to Magistrate
Judge Bloom order dated May 2,2013, are without merit. Defendants' request for a pre-motion
conference is denied without prejudice. On or before June 26, 2013, defendants shall make and
submit to Judge Bloom a written showing of "good cause" for their failure to comply with her
scheduling order of December 6, 2012. If Judge Bloom finds good cause or concludes that
summary judgment is necessary in this case, defendants may renew the request for a pre-motion
conference.
SO ORDERED.

/s/(SLT)

I SANDRA L. TowNES
United States District Judge
Dated: June 6, 2013
Brooklyn, New York
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