UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) MARIA M. KIAKOMBUA, et al., ) ) Plaintiff, ) ) v. ) Civil Action No. 19-cv-1872 (KBJ) ) KEVIN K. McALEENAN, in his official ) capacities as Acting Secretary of Homeland ) Security & U.S. Commissioner of Customs & ) Border Protection, et al., ) ) Defendant. ) )

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL

On July 10, 2019, this Court entered a Scheduling Order that, among other

things, required defense counsel to prepare a certification regarding the contents of the

administrative record. (Scheduling Order, ECF No. 22, at 1–2 (ordering a statement

attesting to the fact that, “based on personal knowledge, . . . the documents constitute a

true, correct, and complete copy of the whole record that was before the relevant

decisionmaker(s), including all documents and materials considered directly or

indirectly”); see also Pls.’ Mot. Regarding the Admin. R., ECF No. 19; Defs.’ Resp. to

Pls.’ Mot. Regarding the Admin. R., ECF No. 20.) Defendants subsequently served on

Plaintiffs a “Certified Index to [the] Administrative Record”; the non-publicly available

documents listed in that index; and a “Certification of the Administrative Record”

(hereinafter “Certification”) that was signed by the Deputy Chief of the Asylum

Division of the U.S. Citizenship and Immigration Services (“USCIS”), Ashley B. Caudill-Mirillo. (Pls.’ Mot. to Compel, ECF No. 24, at 4.) In the Certification, Ms.

Caudill-Mirillo states:

I certify that, to the best of my personal knowledge, information, and belief, the documents listed in the attached index are contained in the administrative record. I further certify that, to the best of my personal knowledge, information, and belief, the documents listed in the attached index constitute a true, correct, and complete copy of the whole record of non-privileged documents that were before the relevant decisionmaker(s), including all documents and materials considered directly or indirectly, in issuing the April 30, 2019, “Credible Fear of Persecution and Torture Determinations” Lesson Plan. The copy of the physical administrative record prepared by USCIS for use in this litigation does not include publicly available statutes, regulations, legislation, case law, Federal Register notices, and international treaties.

(Ex. A to Pls. Mot. to Compel, ECF No. 24-3, at 2.)

Before this Court at present is Plaintiffs’ Motion to Compel Defendants to

“comply with the Court’s Scheduling Order or, in the alternative, to produce a privilege

log of documents [Defendants] excluded from the record on privilege grounds.” (Pls.’

Mot. to Compel at 2.) The thrust of Plaintiffs’ motion is that Defendants have failed to

comply with the Court’s Scheduling Order, because Ms. Caudill-Mirillo’s certification

verifies the administrative record documents “to the best of [her] personal knowledge,

information, and belief[,]” rather than “based on personal knowledge,” as the Court’s

Scheduling Order requires. (Id. at 1.) For the reasons explained below, this Court is

satisfied that Defendants have complied with the certification requirements of the

Court’s Scheduling Order and will not require any additional action at this time.

Therefore, Plaintiffs’ Motion to Compel will be DENIED.

I.

Generally speaking, certification is a method of verifying the authenticity of

proffered evidence used in legal proceedings. See, e.g., Fed. R. Evid. 803(6)(D)

2 (authorizing the admission of records of regularly conducted activity upon

certification); Fed. R. Evid. 902 (allowing the admission of various forms of certified

records as self-authenticating). In the world of administrative law, “there is no legal

authority compelling the defendants to certify an administrative record in the first

instance[.]” Cty. of San Miguel v. Kempthorne,

(D.D.C. 2008).

However, judges do require that some form of official certification accompany

administrative record materials. See Oceana, Inc. v. Ross,

(D.C. Cir.

2019) (“Rather than submitting a privilege log, on APA review, the agency must submit

‘[p]roper certification’ that the record is complete, which serves as ‘formal

representation by the [agency]’ that it duly evaluated all predecisional documents

before excluding them from the record.” (alterations in original)).

Notably, no standard or pattern certification language has been established with

respect to administrative records; all that is presently required is a “‘[p]roper

certification’ that the record is complete[.]”

(first alteration in original). For

example, courts have found certification to be proper where the certifying authority

merely states: “I hereby certify that the annexed is a true copy of the administrative

record[.]” See, e.g.,

(certification language drawn from Ex. 2 to Defs.’ Notice of

Admin. R. & Certified List of Admin. R. Docs., 15-cv-1220, ECF No. 7-2, at 2).

Likewise, the statement that, “to the best of my knowledge, the attached documents

constitute a true and correct copy of materials relating to the captioned case,” has been

found to suffice. See, e.g., Banner Health v. Sebelius,

(D.D.C.

2013), vacated in part on other grounds, No. 10-cv-1638,

(D.D.C.

July 30, 2013) (certification language drawn from Ex. E to Pls.’ Renewed Mot. to

3 Compel Def. to File the Complete Admin. R. and to Certify Same, 10-cv-1638, ECF No.

60-5, at 2; Ex. F to Pls.’ Renewed Mot. to Compel, 10-cv-1638, ECF No. 60-6, at 2)).

II.

Here, the relevant government official has certified the administrative record “to

the best of [her] personal knowledge, information, and belief” (Ex. A to Pls.’ Mot. to

Compel at 2), which, in this Court’s view, is virtually indistinguishable from a

certification “based on personal knowledge” (Scheduling Order at 1). Moreover, it is

by now well established that the actions of an administrative agency—including its

actions when it compiles the administrative record—are entitled to a presumption of

regularity. See Stand Up for California! v. U.S. Dep’t of Interior,

(D.D.C. 2014); Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of

Eng’rs,

(D.D.C. 2006). This means that, absent clear evidence of

bad faith or gross impropriety, it is presumed that the agency’s actions in compiling the

record are procedurally valid. See Stand Up for California!,

(requiring “bad faith or other gross procedural irregularity” to overcome the

presumption of regularity); see also Banner Health,

(finding no

authority for the proposition that a “purportedly inadequately worded certification” or

“absence of a certification” defeats the presumption of regularity).

The administrative record at issue in this case has been duly certified by a

government official whose title suggests that she is in a position to have the requisite

knowledge regarding the materials at issue. (See Ex. A to Pls.’ Mot. to Compel at 2.)

What is more, the agency that has been tasked with compiling the administrative record

is presumed to have proceeded in the regular course when it gathered, reviewed, and

4 provided all of the non-privileged records that were before the relevant decisionmaker,

consistent with the Certification. Therefore, this Court sees no reason to question or

doubt Defendants’ compliance with the Court’s July 10, 2019, Scheduling Order at this

time.

The cases that Plaintiffs rely upon in their motion to compel do not persuade the

Court that more is required with respect to the government’s actions and

representations, largely because the cases Plaintiffs point to pertain to certifications that

were submitted in the context of a motion for summary judgment, rather than those that

courts have required when agencies prepare an administrative record. (See Pls.’ Mot. to

Compel at 6–7 (citing Harris v. Gonzales,

(D.C. Cir. 2007), Londrigan v.

FBI,

(D.C. Cir. 1981), and United States ex rel. Folliard v. Govplace,

, 128–29 (D.D.C. 2013)).) The affidavits and declarations that

accompany motions for summary judgment are not only compelled by law to be “made

on personal knowledge,” Fed. R. Civ. P. 56(c)(4), but they are also treated as

evidentiary support with respect to the existence of material facts, and thus necessarily

require a more substantial attestation regarding the declarant’s level of personal

knowledge. This Court is unaware of any precedent for applying the standards of Rule

56 to an agency’s certification of the administrative record, and Plaintiffs point to none.

Plaintiffs’ alternative request—i.e., that the Court require Defendants to compile

a “privilege log” that lists “documents they excluded from the record on privilege

grounds” (Pls.’ Mot. to Compel at 2)—fares no better. “[S]ince privileged and

deliberative materials are not part of the administrative record as a matter of law,

efforts in APA cases to obtain access to, or logs of, such materials are properly

5 analyzed under the standard applicable to disclosure of extra-record material.” Stand

Up for California!,

. Thus, “to obtain a log of privileged and

deliberative materials excluded from the administrative record, plaintiffs must

overcome, with clear evidence, the presumption of regularity in the agency proceedings

by showing bad faith or other exceptional circumstances.”

(citing Conservation

Force v. Ashe,

(D.D.C. 2013)); see also Nat’l Ass’n of Chain

Drug Stores v. U.S. Dep’t of Health & Human Servs.,

(D.D.C.

2009) (“Since the agency is entitled to a presumption that it has properly designated the

documents, and no bad faith or improper motive has been alleged or proven, defendants

are not required to provide plaintiffs with a privilege log detailing the documents.”).

And here, Plaintiffs have made no such showing.

Furthermore, and in any event, producing a privilege log would not appear to

remedy Plaintiffs’ purported concern that Defendants will “later seek to alter [the

administrative record’s] contents” (Pls.’ Mot. to Compel at 9), because items identified

as privileged would never have been included in an administrative record in the first

place, see, e.g., Am. Petrol. Tankers Parent, LLC v. United States,

(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.” (citation omitted)); Pub. Emps. for Envtl. Responsibility v.

Beaudreu, No. 10-cv-1067,

, at *3 (D.D.C. May 16, 2013) (“In this

Circuit, [deliberative] materials are, as a matter of law, not a part of the administrative

record.”). In other words, Defendants cannot, and would not, seek to include such

materials at a later date, so having a log of such excluded documents is not a cure for

6 Plaintiffs’ concerns.

If the potential problem that has motivated Plaintiffs to file a motion to compel

either a more robust certification or a privilege log is that Defendants may later seek to

introduce and rely upon new record documents, despite having certified that the

administrative record is complete (see Pls.’ Mot. to Compel at 9), it is clear that the law

discourages such practice, see, e.g., Safari Club Int’l v. Jewell,

(D.D.C. 2015) (“Supplementing administrative records in APA cases is the exception,

not the rule.”), and both parties are now on notice that this Court will enforce the law.

Defendants have duly certified that the administrative record that was served on

Plaintiffs on July 25, 2019, is “a true, correct, and complete copy of the whole record of

non-privileged documents that were before the relevant decisionmaker(s)” (Ex. A to

Pls.’ Mot. to Compel at 2); thus, the agency will have a steep hill to climb if at some

later date it seeks to expand the record, even if the request is based on the alleged

belated discovery of new information not personally known to the official who has

provided the contested certification. Cf. Attias v. Carefirst, Inc.,

(D.C. Cir. 2017) (noting “the district court’s position as master of its docket”); Brune v.

IRS,

(D.C. Cir. 1988) (“The district court has ‘broad discretion’ in

its handling of discovery[.]” (quoting In re Multi–Piece Rim Prods. Liab. Litig.,

, 679 (D.C. Cir. 1981))).

III.

In presenting the administrative record at issue here, a government official has

certified that, to the best of her knowledge, information, and belief, the record evidence

that has been presented is “a true, correct, and complete copy of the whole record of

7 non-privileged documents that were before the relevant decisionmaker(s)[.]” (Ex. A to

Pls.’ Mot. to Compel at 2.) This Court will take the government at its word, and it

hereby reminds the parties that, certification or no, agencies have a solemn duty to

search for, collect, and compile all relevant and non-privileged records when an

administrative record is presented. See Walter O. Boswell Mem’l Hosp. v. Heckler,

, 792 (D.C. Cir. 1984) (“[T]he APA requires review of ‘the whole record.’”

(quoting

(1982)); Marcum v. Salazar,

(D.D.C.

2010) (“A court should consider neither more nor less than what was before the agency

at the time it made its decision. It is the agency’s responsibility to compile for the

court all information it considered either directly or indirectly.” (citations omitted)).

Because this Court can, and will, enforce this obligation in the context of the instant

case if the need arises, it sees no reason to require anything more at this time with

respect to the government’s representations regarding the content of the record that it

has presented.

Accordingly, it is hereby

ORDERED that the Plaintiff’s Motion to Compel (ECF No. 24) is DENIED.

DATE: August 27, 2019 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

8