Pitman et al v. United States Citizenship and Immigration Services (USCIS) et al

Filing 65

MEMORANDUM DECISION AND ORDER GRANTING IN PART PLAINTIFFS' MOTION TO COMPLETE THE ADMINISTRATIVE RECORD-granting in part and denying in part 51 Motion. The USCIS Defendants must produce within fourteen (14) days a privilege lo g which substantiates the assertion of the deliberative process privilege, or any other privilege, as a basis for withholding documents or portions of documents from the administrative record. See Order for additional details. Signed by Magistrate Judge Evelyn J. Furse on 7/2/18. (jmr)

IN THE UNTED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
MEMORANDUM DECISION AND
ORDER GRANTING IN PART
PLAINTIFFS’ MOTION TO
COMPLETE THE ADMINISTRATIVE
RECORD (ECF NO. 51)

TYLER PITMAN, et al.,
Plaintiffs,
v.
UNITED STATES CITIZENSHIP
IMMIGRATION SERVICES, et al.,

AND

Case No. 2:17-cv-00166-CW-EJF
Judge Clark Waddoups

Defendants.

Magistrate Judge Evelyn J. Furse

Plaintiffs Tyler Pitman and Liliana Damaschin (“Pitman Plaintiffs”) filed a Motion
to Complete the Administrative Record. (Mot. to Complete Admin. R. (“Mot.”), ECF No.
51.) The Pitman Plaintiffs ask the Court to (1) “order Defendants to immediately
complete the administrative record and include therein every document and
communication considered in the adjudication of the Pitman petition by Defendants,”
and (2) “find that any claims of privilege have been waived and order Defendants to
produce the withheld documents, or at a minimum, order Defendants to immediately
produce a privilege log.” (Mot. 6.) Defendants United States Citizenship and
Immigration Services, et al. (“USCIS Defendants”) opposed the Motion (Mem. in Opp’n
to Pls.’ Mot. to Complete Admin. R. (“Opp’n”) ECF No. 55), and the Pitman Plaintiffs
filed a Reply in support of their Motion (Pls.’ Reply to Defs.’ Mem. in Opp’n to Pls.’ Mot.
to Complete Admin. R. (“Reply”), ECF No. 57). At the same time the USCIS
Defendants filed their Opposition, they also filed nine previously redacted pages of the
administrative record, indicating that they “have withdrawn their objections to providing
unredacted versions of pages 951–59.” (Notice of Filing re Admin. R., ECF No. 56.)

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On April 20, 2018, the Court held a hearing on the Motion. (ECF No. 63.) At the
hearing the Pitman Plaintiffs limited their request to an order requiring the USCIS
Defendants to produce a privilege log detailing their privilege claims. The USCIS
Defendants confirmed at the hearing that they withheld documents on the grounds that
the deliberative process privilege protects them. The Pitman Plaintiffs argue that the
USCIS Defendants should have to produce a privilege log to substantiate their privilege
claims. The USCIS Defendants counter that documents protected by the deliberative
process privilege do not form part of the administrative record in the first place and
therefore they have no obligation to produce a log. Also, at the hearing, the USCIS
Defendants indicated that they originally withheld the redacted documents subsequently
produced concurrently with their Opposition on the basis of the deliberative process
privilege.
The parties agree that neither the Tenth Circuit nor any other circuit court has
determined whether privileged documents form part of the administrative record or
whether the government must produce a privilege log in Administrative Procedure Act
(“APA”) cases such as this one. Given the focusing of the Pitman Plaintiffs’ motion at
the hearing and the lack of case law cited with respect to privilege logs in the parties’
briefs, the Court asked the parties to submit a list of district court cases, particularly
from the Tenth Circuit, supporting their positions on the privilege log issue. On April 27,
2018, the parties submitted a joint filing identifying cases that they claim support their
respective positions. (Jt. Notice of Filing of Suppl. Authorities, ECF No. 64.)
Based on the parties’ briefs, oral argument, and the supplemental authorities
cited by the parties, and for the reasons addressed below, the Court GRANTS IN PART

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the Pittman Plaintiffs’ Motion and will require the USCIS Defendants to produce a
privilege log detailing their privilege claims.
DISCUSSION
“A district court reviews an agency action to determine if it was ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’” Bar MK
Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993) (quoting 5 U.S.C. § 706(2)(A)).
The district court’s review “under this standard is generally based on the full
administrative record that was before all decision makers[.]” Id. “The complete
administrative record consists of all documents and materials directly or indirectly
considered by the agency.” Id. The government’s “designation of the Administrative
Record . . . is entitled to a presumption of administrative regularity.” Id. at 740. “The
court assumes the agency properly designated the Administrative Record absent clear
evidence to the contrary.” Id.
Relying on cases from the District of Columbia and Virginia district courts, the
USCIS Defendants argue that privileged materials do not become part of the
administrative record in APA cases, and therefore they have no obligation to provide a
privilege log. See, e.g., Am. Petroleum Tankers Parent, LLC v. United States, 952 F.
Supp. 2d 252, 265 (D.D.C. 2013) (“It is well established in this District that materials
protected by the deliberative process privilege are not part of the Administrative Record
for purposes of review of agency action . . . As a corollary to this principle, the agency
need not provide a privilege log of the documents withheld pursuant to the privilege.”);
Tafas v. Dudas, 530 F. Supp. 2d 786, 794 (E.D. Va. 2008) (“A complete administrative
record, however, does not include privileged materials, such as documents that fall

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within the deliberative process privilege, attorney-client privilege, and work product
privilege.”); Oceana, Inc. v. Locke, 634 F. Supp. 2d 49, 52–53 (D.D.C. 2009), rev’d on
other grounds, 670 F.3d 1238 (D.C. Cir. 2011) (“[P]redecisional and deliberative
documents ‘are not part of the administrative record to begin with,’ so they ‘do not need
to be logged as withheld from the administrative record.’ . . . The Court therefore rejects
plaintiff's dual arguments that the predecisional and deliberative documents must be
placed in the administrative record and that the Agency must prepare a privilege log that
lists those documents that are not included in the record.”) (quoting Nat’l Ass’n of Chain
Drug Stores v. U.S. Dep’t of Health & Human Servs., 631 F.Supp.2d 23, 27 (D.D.C.
2009)).
On the other hand, the Pitman Plaintiffs cite cases from various other district
courts, including within the Tenth Circuit, that have required the government to produce
a privilege log to substantiate privilege claims made with respect to documents or
portions of documents withheld from the administrative record. See, e.g., Ctr. for Native
Ecosystems v. Salazar, 711 F. Supp. 2d 1267, 1276 n.10 (D. Colo. 2010) (requiring
production of privilege log to substantiate any claims of deliberative process and/or
attorney-client privilege); Wildearth Guardians v. U.S. Forest Serv., 713 F. Supp. 2d
1243, 1265–67 (D. Colo. 2010) (requiring detailed privilege log to substantiate attorneyclient privilege claims used as basis to redact portions of administrative record); Batalla
Vidal v. Duke, No. 16-CV-4756 (NGG) (JO), 2017 WL 4737280, at *5 (E.D.N.Y. Oct. 19,
2017) (unpublished) (“Defendants are required to identify and assert privilege with
respect to documents withheld from the administrative record on privilege grounds. The
‘full’ or ‘whole’ administrative record includes all materials ‘directly or indirectly’

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considered by an agency decisionmaker at the time he or she made the challenged
decision.” (quoting Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F. Supp. 2d 305,
308 (S.D.N.Y. 2012)); Gill v. Dep’t of Justice, No. 14-CV-03120-RS (KAW), 2015 WL
9258075, at *7 (N.D. Cal. Dec. 18, 2015) (unpublished) (requiring production of a
privilege log to substantiate the withholding of documents from the administrative record
on deliberative process privilege grounds); People of State of Cal. ex rel. Lockyer v.
U.S. Dep't of Agric., No. C05-03508 EDL, 2006 WL 708914, at *4 (N.D. Cal. Mar. 16,
2006) (unpublished) (“[S]ome agency documents, such as purely internal deliberative
materials, may be protected from inclusion in the administrative record, but Defendants
must make a specific showing establishing the application of a privilege for each
document that it contends that it may withhold based on privilege.”); Regents of Univ. of
California v. United States Dep’t of Homeland Sec., No. C 17-05211 WHA, 2017 WL
4642324, at *7–*8 (N.D. Cal. Oct. 17, 2017) (unpublished) (requiring defendants to
provide a privilege log for all documents withheld from the administrative record on
privilege grounds); Mickelsen Farms, LLC v. Animal & Plant Health Inspection Serv.,
No. 1:15-CV-00143-EJL-CWD, 2017 WL 2172436, at *4 (D. Idaho May 17, 2017)
(unpublished) (requiring production either of a privilege log or submission of documents
withheld from the administrative record on deliberative process privilege grounds to the
court for in camera review).
The USCIS Defendants have not pointed to any binding authority in the Tenth
Circuit holding that the administrative record does not include privileged documents.
Therefore, consistent with other courts facing similar circumstances, the Court declines
to follow the district court cases from the Districts of Columbia and Virginia and hold that

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privileged documents do not form part of the administrative record and therefore not
require a privilege log in APA cases. See Gill, 2015 WL 9258075, at *7 (stating that
“[w]hile Defendants argue that no [] privilege log is necessary because deliberative
material is, in any event, not part of the [administrative record], they have not pointed to
binding Ninth Circuit authority that stands for the proposition that in an APA action, an
agency may withhold documents on the basis of privilege without providing so much as
a privilege log,” and therefore requiring the production of a privilege log to substantiate
deliberative process privilege claims).
Furthermore, the Court finds the cases requiring the production of a privilege log
more persuasive, particularly given the circumstances in this case. While courts
generally afford the government’s designation of the administrative record the
presumption of regularity and completeness, see Bar MK Ranches, 994 F.2d at 740, the
Court finds the presumption overcome in this case. The USCIS Defendants’ statements
in their Opposition suggest that they applied the wrong standard in compiling the
administrative record:
Defendants certified and lodged an administrative record consisting of all
documents actually considered by Defendants as part of their decisions to
deny Tyler Pitman’s Form I-130.
***
Here, Defendants have certified and produced a 1,322-page and 5-disc
administrative record that includes all of the non-privileged documents that
were actually considered by the decisionmaker.
(Opp’n at 3, 5 (emphasis added)). In the Tenth Circuit, the administrative record,
consists of all materials “directly or indirectly considered” by the government. See Bar
MK Ranches, 994 F.2d at 739. However, as indicated above, the USCIS Defendants’

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opposition indicates that they only produced those documents “actually considered” as
part of their decision, which is inconsistent with Tenth Circuit authority. See id.;
Lockyer, 2006 WL 708914, at *2–*3 (finding presumption that administrative record is
complete overcome where, among other things, defendants applied the wrong
standard—including only those documents “relied upon” and “considered” as opposed
to all documents “directly or indirectly considered”—in compiling the record).
Relatedly, the USCIS Defendants’ representation at the hearing that despite
divergent views among the circuits as to what constitutes the administrative record, they
do not take those varying standards into account when compiling the administrative
record in any given case raises concerns about the completeness of the record.
Accordingly, the Court will require the USCIS Defendants to produce a privilege
log in this case for all documents withheld from the administrative record on the basis of
privilege. The Court does not intend to imply that the USCIS Defendants improperly
withheld documents from the administrative record on the grounds of the deliberative
process privilege. However, given the circumstances in this case, the Court finds that
the Pitman Plaintiffs are entitled to a privilege log detailing the USCIS Defendants’
privilege claims, which will then allow them to either confirm the privilege assertions or
challenge the privilege assertions if they believe the USCIS Defendants improperly
withheld certain documents from the administrative record on that basis.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART the Pitman Plaintiffs’
motion. The USCIS Defendants must produce within fourteen (14) days a privilege log
which substantiates the assertion of the deliberative process privilege, or any other

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privilege, as a basis for withholding documents or portions of documents from the
administrative record. The privilege log should, at a minimum, describe each document
(including the author/sender, recipient(s), title, date, etc.), identify the basis for
withholding each document, and otherwise include sufficient information to substantiate
each privilege claim.
DATED this 2nd day of July, 2018.

BY THE COURT:

By: _________________________________
Magistrate Judge Evelyn J. Furse
United States District Court

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