Hilburn, et al v. Vilsack, et al
Filing
105
OPINION AND ORDER - Plaintiffs' motion to compel (ECF 90 ) is GRANTED IN PART. Signed on 8/29/2019 by Judge Michael H. Simon. (mja) Modified document title on 8/30/2019 (ct).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LISA McFALLS, MICHAEL McFALLS,
FRED WOODRING, and COMMUNITY
ACTION RESOURCE ENTERPRISES,
INC.,
Case No. 3:16-cv-2116-SI
OPINION AND ORDER
Plaintiffs,
v.
SONNY PURDUE, Secretary of the
Department of Agriculture; ROGER
GLENDENNING, Undersecretary for Rural
Development; RICH DAVIS, Administrator
Rural Housing Service; and JOHN E.
HUFFMAN, Oregon Rural Development
State Director,
Defendants.
Michael H. Simon, District Judge.
Plaintiffs are seeking to compel the production of documents in order to review them to
consider whether they should later be requested to be added to the administrative record. The
Court requested that the process of supplementing the administrative record be split into two
steps: Step One a motion to compel the production of documents that Plaintiffs believe may be
relevant and potentially includable in the administrative record and Step Two a motion to
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supplement the record or have the Court consider extra-record materials. Before the Court is
Plaintiffs Step One motion, requesting an order compelling the production of certain documents
from Defendants.
Plaintiffs continue to request production of six categories of documents. Defendants
generally object to producing most documents based on the argument that supplementing the
record and associated discovery is not appropriate under the Administrative Procedures Act. The
Court, however, specifically directed the parties that at this step whether the documents are
appropriate for supplementing the administrative record or whether discovery is appropriate
under the Administrative Procedures Act is not to be considered. Arguments relating to whether
documents should be allowed as supplemental or extra-record materials are preserved and are to
be raised during the second stage, when Plaintiffs move to supplement the record. For this
motion, the Court directed the parties to focus on the burden to Defendants in producing the
requested materials, and ensuring that the requested documents do not merely have “tangential”
or “speculative” relevance.
1. CRIAs from Other States
Plaintiffs’ request for CRIAs from other states was discussed on the June 17, 2019
telephone conference with the Court. The Court asked Defendants if producing three years of
these documents would be burdensome. Defendants assert, based on a declaration from an
apparently new RD employee relying on hearsay from someone in one state office, that
depending on the circumstances it could take 6-8 hours to manually locate each relevant
document. Thus, Defendants argue, this request is unduly burdensome. Plaintiffs respond that
RD has computer systems that identify prepaid properties and thus a manual search is not
necessary. Plaintiffs also submit the declaration of a 31-year RD employee, former RD Director
of the Multi-Family Housing Preservation and Direct Loan Division, and former RD Acting
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Deputy Administrator for Multi-Family Housing. This witness estimates it will take less than 30
minutes to locate the relevant documents in each office and that the task can be performed by RD
support staff.
Plaintiffs also offer to reduce the request to only 15 states, which Plaintiffs will identify if
the Court grants this motion. Plaintiffs further offer to reduce the request to only the CRIA and
RD’s letters, which are contained in two identified tabs in RD’s files. Considering all of the
submitted information, the Court does not find that production of the requested information,
particularly as modified by Plaintiffs, would be unduly burdensome. Defendants, however, also
express concern that Plaintiffs will “cherry pick” the 15 states. Defendants therefore have the
option of producing documents from the 15 states that will be identified by Plaintiffs or
documents from all 50 states. This motion is granted.
2. Administrative Notices and Unnumbered Letters
Plaintiffs accept Ms. Jacobsen’s contention that she has been unable to locate any
additional administrative notices and unnumbered letters. Plaintiffs request, however, that if they
have not already searched, the USDA Office of General Counsel and the RD St. Louis office also
search to determine whether copies of pertinent ANs or ULs are available. That request is
granted.
3. Contracts Between RD and Quadel and/or ICF
RD located the 2010 contract and 2014 extension with Quadel and ICF. Defendants are
ordered to produce these contracts because it is not unduly burdensome.
4. Reports Submitted by Quadel and/or ICF
Defendants assert that they have searched agency files and located monthly reports
from 2010-2016 but could not locate any older reports. Defendants shall confirm that the
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St. Louis office searched for responsive documents and, if not, shall have the St. Louis office
search for responsive documents. Defendants shall produce all located reports.
5. Communications Between RD and Quadel and ICF
Plaintiffs request email communications between Stephanie White at RD and Quadel or
ICF. Considering the burden in searching email communications, the fact that Plaintiffs will have
the reports submitted by Quadel and ICF and the contracts with these entities, and the limited
relevance of the requested email, the Court denies this motion.
6. Agency Voucher Administration Workflow System
Defendants have located RD’s seven-part Functional Specifications for its Voucher
Processing Workflow System. Defendants do not assert that it would be unduly burdensome to
produce this document. Although Defendants assert that it is irrelevant to Plaintiffs’ voucherrelated claim, it appears that this document may have been directly or indirectly considered by
RD in making voucher eligibility determinations. Accordingly, Defendants are ordered to
produce the Functional Specifications for its Voucher Processing Workflow System.
CONCLUSION
Plaintiffs’ motion to compel (ECF 90) is GRANTED IN PART.
IT IS SO ORDERED.
DATED this 30th day of August, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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