923 F. Supp. 2d 1226
E.D. Cal.2013Background
- Pinnacle alleges NIJ revoked Dragon Skin certification, seeking procedural due process and APA relief.
- District court dismissed due process claim and held record review moot; Ninth Circuit remanded for APA merits.
- Court deferred merits to consider whether to supplement the Revised Administrative Record (RAR).
- Plaintiff moves to supplement with 26 documents; defendants largely oppose, some are admitted.
- Court applies narrow four exceptions to supplement: relevant factors, relied-upon but missing materials, explain technical terms, and bad faith.
- Order: deny most supplementation but permit limited additions: Document 8 (consent), Document 10 (redacted variant), Document 21 (relevant factors); allow narrow discovery on Army/DOD data.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the RAR should be supplemented under the SW Center factors | Docs 1-7,12-16,22-23 raise new factors NIJ failed to consider | SW Center factors apply narrowly; most documents do not reveal omitted general subject matter | Supplementation denied except for specific documents under narrowed exceptions |
| Whether Documents 8, 9, 10, 11 should be added | Different redactions justify supplementation | Some versions duplicative or privilege-protected | Document 8 granted; Document 10 granted; Documents 9 and 11 denied |
| Whether Documents 12-16 and 22 can be included under relevant factors | These contain performance data relevant to NIJ decision | They do not present entirely new general subject matter neglected by NIJ | Denied as to Documents 12-16 and 22 under relevant factors |
| Whether Documents 17-21 should be included under any exception | Some discuss pre-decisional data; could aid review | Subjects were already addressed or not before decision; insufficient grounds | Document 21 granted under relevant factors; others denied |
| Whether the bad faith exception justifies adding Document 5 | Demonstrates predetermination of decertification | Email shows planning, not bad faith; no strong showing required | Document 5 supplementation denied |
Key Cases Cited
- Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534 (9th Cir. 1993) (whole record includes materials considered by agency)
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (limits on supplementation; presumption of regularity)
- Southwest Center for Biological Diversity v. United States Forest Service, 100 F.3d 1443 (9th Cir. 1996) (four narrow exceptions to supplement the record)
- Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993) (burden to show documents were considered; non-speculative grounds)
- Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1980) (judicial review limited by time of decision; post-decision materials generally not included)