Opinion
Civil No. 04-1104 ADM/JSM.
March 9, 2005
Herbert Igbanugo, Esq. and Riddhi Jani, Esq., Blackwell Igbanugo, Minneapolis, MN, on behalf of Plaintiffs.
Robyn Millenacker, Esq., Assistant U.S. Attorney, Minneapolis, MN, on behalf of Defendants.
ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Defendants' Appeal ("Appeal") [Docket No. 17] of Magistrate Judge Janie S. Mayeron's Order of December 28, 2004 ("Order") [Docket No. 16]. The Order requires Defendants produce to Susan Sherry Sabhari and Ali Abdulla Sabhari ("Plaintiffs") one or more sworn affidavits from the Citizenship and Immigrations Service ("CIS") setting forth certain information. For the reasons set forth below, the Order is affirmed. The procedural and factual background, described in the Order, is incorporated by reference.
II. DISCUSSION
A. Standard of Review
The standard of review for appeals of a magistrate judge's order on nondispositive pretrial matters is extremely deferential. The district court must affirm an order by a magistrate judge unless it is "clearly erroneous or contrary to law." See D. Minn. LR 72.1(b)(2); see also Banbury v. Omnitrition Int'l Inc., 818 F. Supp. 276, 279 (D. Minn. 1993). "A finding is `clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Chakales v. Commissioner of Internal Revenue, 79 F.3d 726, 728 (8th Cir, 1996).
B. Length of Plaintiffs' Responsive Memorandum and Motion to File Reply Brief
As a preliminary matter, Defendants argue that Plaintiffs' Memorandum in Response to Defendants' Appeal of Magistrate Judge's Order ("Memorandum") should be stricken because it violates the page limit set forth in D. Minn. LR 72.1(b)(2). According to D. Minn. LR 72.1(b)(2), "[a]ll briefs filed under [the] rule shall be limited to 10 pages." Plaintiffs filed their original Memorandum, which was 19 pages in length, on January 18, 2005 [Docket No. 20]. Defendants made their objections to the length of the Memorandum on January 19, 2005 [Docket No. 22]. Plaintiffs subsequently filed a supplemental 10 page Memorandum on January 20, 2005 in order to comply with Local Rule 72.1(b)(2) [Docket No. 23]. In the interests of justice, the Court will consider the January 20, 2005 Memorandum, which complies with the local rules. In addition, the Defendants made a motion for leave to file a rely [Docket No. 26]. Because there is no provision in the local rules which would allow the Defendants to file such a reply, the motion is denied. As a result, the reply brief submitted by the Defendants [Docket No. 27] has not been considered.
C. Judicial Review Under the APA
At issue is the limited discovery required by Judge Mayeron in her December 28, 2004 Order. Plaintiffs sought to depose two government witnesses who were involved in the investigation of Plaintiffs' second and third petitions for an immigration visa. Order at 2. The Defendants objected to the discovery request on the grounds that judicial review under the Administrative Procedures Act ("APA") is normally limited to the administrative record. Id. Judge Mayeron ordered that, instead of depositions requested by Plaintiffs, Defendants should provide the following information in one or more sworn affidavits:
1. The practices and procedures normally followed by CIS when presented with a petition for an immigration visa during the period of 1997 through 2003, as dictated by its operations instructions and regulations, including steps normally taken to investigate such a petition;
2. The practices and procedures normally followed by CIS during the period of 1997 through 2003 when it is presented with one or more subsequent petitions for an immigration visa after the initial petition had been denied, as dictated by its operations instructions and regulations, including steps normally taken to investigate the subsequent petition;
3. A description of what steps were taken by CIS in connection with the investigation of plaintiffs' second and third petitions for an immigration visa;
4. To the extent that CIS did not follow one or more of the steps described in paragraphs (a) and (b) above in connection with plaintiffs' second and third petitions for an immigration visa, a description as to why the CIS deviated from those normal practices and procedures.Id. at 2-3.
Judicial review under the APA is normally limited to the administrative record that was before the agency when it made its decision. Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759, 766 (8th Cir. 2004) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); Florida Power Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985); Newton County Wildlife Assoc. v. Rogers, 141 F.3d 803, 807 (8th Cir. 1998)). However, certain exceptions have been made to the general rule limiting APA review to the administrative record. Id. "These exceptions apply only under extraordinary circumstances, and are not to be casually invoked unless the party seeking to depart from the record can make a strong showing that the specific extra-record material falls within one of the limited exceptions." Voyageurs Nat'l Park Ass'n, 381 F.3d at 766 (citing a strong showing of bad faith and improper behavior). In Voyageurs Nat'l Park Ass'n, the court suggested that an incomplete record could be a basis for an exception, although this exception should be narrowly construed:
The Association's argument hinges on its assertion that the administrative record is incomplete and thus will frustrate effective judicial review. However, the exception allowing extra-record evidence to explain the administrative record and agency decision is very narrow. . . .Id. (citations omitted).
In Judge Mayeron's Order, the claimed basis for an exception to limited APA discovery is the assertion of an incomplete record. Order at 3. Plaintiffs argued that there was no contemporaneous administrative record to explain why CIS deviated from its normal practices and procedures when investigating their second and third petitions. Id. at 4. The Order held that "this is an appropriate and important area of inquiry and bears on the Court's review of the CIS's decision to deny plaintiffs' second and third petitions." Id. Therefore, Judge Mayeron found that the instant case is one that merits inquiry into the administrative process because it is the only way there can be effective judicial review. It should be noted that the above conclusion was based on Plaintiffs' statement that "the administrative record is devoid of any information to explain how CIS reached its decision to deny their second and third petitions." Id. at 3. Defendants, in their Appeal, take issue with the characterization that the record was "devoid" of this information. Appeal at 6. Defendants specifically point to agency decisions on the second and third petitions as sufficient explanations of how CIS reached its decision. Id. However, these decisions do not address any deviation from practices and procedures in reviewing the second and third petitions. It may be true that there are approximately 2,300 pages of administrative record relating to this case. That is not particularly surprising given this case has been active for more than nine years. The relevant inquiry, however, is how many materials in the administrative record relate to the issue at hand. These decisions cite the evidence on which the decisions were based. They do not discuss the processes by which the CIS reached its decisions. Therefore, notwithstanding the materials contained in the administrative record, it is not clearly erroneous or contrary to law to order the discovery.
Furthermore, the actual discovery ordered by Judge Mayeron is narrowly tailored to the issue at hand and is not overly burdensome. The discovery is limited to Defendants' practices and procedures, and the deviation therefrom, from 1997 to 2003. In addition, the method of discovery is not overly burdensome because Judge Mayeron found that it would be sufficient for Defendants to provide the information in the form of affidavits rather than depositions. The solution created by Judge Mayeron appropriately balances the interests of the parties in the discovery required.
Plaintiffs initiated litigation on the instant matter over nine years ago. During that time, Plaintiffs have remained married and nearly every key witness has recanted the testimony used to support the original decision. Judge Mayeron found the dearth of information regarding the administrative process used to reach this decision, coupled with the unique circumstances of this suit, justified additional inquiry to ensure effective judicial review. Judge Mayeron's Order is not clearly erroneous or contrary to law, and therefore the Court will uphold the Order.
III. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. The Order [Docket No. 16] is AFFIRMED;
2. Defendants' Appeal of the Order [Docket No. 17] is DENIED;
3. Defendants' Objection to Length of Plaintiffs' Reply Brief [Docket No. 22] is DENIED; and
4. Defendants' Motion for Leave to File a Reply [Docket No. 26] is DENIED.