United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER GRANTING IN PART
PLAINTIFFS' MOTION TO COMPLETE THE ADMINISTRATIVE RECORD
(ECF NO. 51)
J. Furse Magistrate Judge.
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withdrawn their objections to providing unredacted versions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
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
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.)
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 the Pittman
Plaintiffs' Motion and will require the USCIS Defendants
to produce a privilege log detailing their privilege claims.
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
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
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)).
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
attorney-client 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' 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).
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 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
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 ...