Court filing
Reply ISO Motion to Strike Extra-Record Evidence — East Bay Sanctuary v. Trump
Filed December 16, 2018 in East Bay Sanctuary v. Trump; one of 67 filings from this case.
Record facts
| Court | N.D. Cal. |
|---|---|
| Filed | 2018-12-16 |
N.D. Cal. · No. 3:18-cv-06810-JST · Doc. 94 · 2018-12-16 · Docket on CourtListener
Full text
DEFENDANTS’ REPLY IN SUPPORT OF MOTION
TO STRIKE EXTRA-RECORD EVIDENCE
East Bay Sanctuary v. Trump,
Case No. 3:18-cv-06810-JST
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JOSEPH H. HUNT
Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
AUGUST E. FLENTJE
Special Counsel
WILLIAM C. PEACHEY
Director
EREZ REUVENI
Assistant Director
CHRISTINA P. GREER
Trial Attorney
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 598-8770
Email: Christina.P.Greer@usdoj.gov
PATRICK GLEN
Senior Litigation Counsel
JOSEPH DARROW
FRANCESCA GENOVA
KATHRYNE GRAY
BENTON YORK
Trial Attorneys
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
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East Bay Sanctuary Covenant, et al.,
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Plaintiffs,
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DEFENDANTS’ REPLY IN SUPPORT
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OF MOTION TO STRIKE
v.
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EXTRA-RECORD EVIDENCE
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Donald J. Trump, President of the United )
Civil Action No. 3:18-cv-06810-JST
States, et al.,
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Defendants.
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Case 3:18-cv-06810-JST Document 94 Filed 12/16/18 Page 1 of 22
DEFENDANTS’ REPLY IN SUPPORT OF MOTION
TO STRIKE EXTRA-RECORD EVIDENCE
East Bay Sanctuary v. Trump,
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TABLE OF CONTENTS
INTRODUCTION....................................................................................................................... 1
ARGUMENT ............................................................................................................................... 1
I.
Plaintiffs May Only Cite Extra-Record Evidence Relating to Standing and
Irreparable Harm. .......................................................................................................... 2
II.
The Government’s Invocation of the Foreign-Affairs and Good-Cause
Exceptions Provide no Basis to Depart from the Record Rule ................................... 3
A.
Foreign-Affairs Exception .................................................................................... 4
B.
Good-Cause Exception ......................................................................................... 6
III.
Plaintiffs’ Extra-Record Evidence Is Otherwise Inappropriate. ................................ 8
A.
Declarations from Professors, Researchers, Advocates, and Former
Government Officials............................................................................................ 9
B.
Declarations from Plaintiffs’ Employees ............................................................ 12
C.
News Articles and Internet Documents .............................................................. 13
CONCLUSION ......................................................................................................................... 14
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DEFENDANTS’ REPLY IN SUPPORT OF MOTION
TO STRIKE EXTRA-RECORD EVIDENCE
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TABLE OF AUTHORITIES
CASE LAW
Am. Transfer & Storage Co. v. Interstate Commerce Comm’n,
719 F.2d 1283 (5th Cir. 1983) ................................................................................................. 6
Ardente, Inc. v. Shanley,
No. C 07-4479 MHP, 2010 WL 546485 (N.D. Cal. Feb. 9, 2010) .......................................... 4
Asarco, Inc. v. U.S. Envtl. Prot. Agency,
616 F.2d 1153 (9th Cir. 1980) ................................................................................................. 9
Camp v. Pitts,
411 U.S. 138 (1973) ................................................................................................................. 8
City of Olmsted Falls, Ohio v. FAA,
292 F.3d 261 (D.C. Cir. 2002) ................................................................................................. 4
Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv.,
450 F.3d 930 (9th Cir.2006) .................................................................................................. 14
Doe v. Trump,
288 F. Supp. 3d 1045 (W.D. Wash. 2017) ............................................................................... 5
Earth Island Inst. v. Evans,
256 F. Supp. 2d 1064 (N.D. Cal. 2003) ............................................................................... 2, 7
East Bay Sanctuary Covenant v. Trump,
No. 18-17274 (9th Cir. Dec. 7, 2018) .................................................................... 5, 10, 12, 13
Eco Tour Adventures, Inc. v. Zinke,
249 F. Supp. 3d 360 (D.D.C. 2017) ......................................................................................... 3
Fence Creek Cattle Co. v. U.S. Forest Serv.,
602 F.3d 1125 (9th Cir. 2010) ..................................................................................... 4, 6, 7, 8
George v. Bay Area Rapid Transit,
577 F.3d 1005 (9th Cir. 2009) ................................................................................................. 4
Hawaii Helicopter Operators Ass’n v. FAA,
51 F.3d 212 (9th Cir. 1995) ..................................................................................................... 6
Hill Dermaceuticals, Inc. v. U.S. Food & Drug Admin.,
2012 WL 5914516 (D.D.C. May 18, 2012) ............................................................................. 3
Hill Dermaceuticals, Inc. v. U.S. Food & Drug Admin.,
709 F.3d 44 (D.C. Cir. 2013) ................................................................................................... 3
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TO STRIKE EXTRA-RECORD EVIDENCE
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INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ............................................................................................................... 11
Jiahao Kuang v. U.S. Dep’t of Defense,
2018 WL 6025611 (N.D. Cal. Nov. 16, 2018) .......................................................... 2, 7, 9, 14
Lands Council v. Powell,
395 F.3d 1019 (9th Cir. 2005) ................................................................................................. 7
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014) ........................................................................................................... 3, 12
Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv.,
475 F.3d 1136 (9th Cir. 2007) ................................................................................................. 4
Nw. Envtl. Advocates v. U.S. Dep’t of Commerce,
322 F. Supp. 3d 1093 (W.D. Wash. 2018) ............................................................................. 13
Occidental Eng’g Co. v. INS,
753 F.2d 766 (9th Cir. 1985) ............................................................................................... 5, 8
San Luis & Delta-Mendota Water Auth. v. Locke,
776 F.3d 971 (9th Cir. 2014) ................................................................................................... 5
Sorenson Commc’ns Inc. v. FCC,
755 F.3d 702 (D.C. Cir. 2014) ................................................................................................. 6
Tagoia v. Wells Fargo Bank, N.A.,
No. 17-CV-06777, 2018 WL 3377967 (N.D. Cal. July 11, 2018) ........................................... 4
United States v. Cain,
583 F.3d 408 (6th Cir. 2009) ................................................................................................... 6
United States v. Dean,
604 F.3d 1275 (11th Cir. 2010) ............................................................................................... 6
United States v. Gould,
568 F.3d 459 (4th Cir. 2009) ................................................................................................... 6
United States v. Johnson,
632 F.3d 912 (5th Cir. 2011) ................................................................................................... 6
United States v. Mays,
246 F.3d 677, 2000 WL 1860727 (9th Cir. 2000) ................................................................. 14
United States v. Pena-Gutierrez,
222 F.3d 1080 (9th Cir. 2000) ............................................................................................... 14
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TO STRIKE EXTRA-RECORD EVIDENCE
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United States v. Scholl,
166 F.3d 964 (9th Cir. 1999) ........................................................................................... 11, 12
United States v. Valverde,
628 F.3d 1159 (9th Cir. 2010) ............................................................................................. 6, 8
W. Watersheds Project v. Kraayenbrink,
632 F.3d 472 (9th Cir. 2011) ................................................................................................... 2
Wiechers v. Moore,
No. 1:13-CV-00223, 2014 WL 1400843 (E.D. Cal. Apr. 10, 2014) ....................................... 1
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................................................................................. 2, 7
Yassini v. Crosland,
618 F.2d 1356 (9th Cir. 1980) ................................................................................................. 5
STATUTES
5 U.S.C. § 553(a) ........................................................................................................................... 6
5 U.S.C. § 706 ............................................................................................................................ 3, 4
5 U.S.C. § 706(2)(D)...................................................................................................................... 4
FEDERAL RULES
Fed. R. Evid. 401 ............................................................................................................. 12, 13, 14
Fed. R. Evid. 402 ............................................................................................................. 12, 13, 14
Fed. R. Evid. 602 ............................................................................................................. 10, 11, 12
Fed. R. Evid. 801 ......................................................................................................................... 14
Fed. R. Evid. 802 ............................................................................................................. 10, 11, 14
Fed. R. Evid. 805 ................................................................................................................... 11, 14
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TO STRIKE EXTRA-RECORD EVIDENCE
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MISCELLANEOUS
Brief for the Petitioners, Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) No. 07-1239, 2008 WL 3285392 ............................................................... 2
Brief for the Respondents, Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) No. 07-1239, 2008 WL 4154536 ............................................................... 2
Brief of Respondent California Coastal Comm’n, Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) No. 07-1239, 2008 WL 4181884 ............................................................... 2
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DEFENDANTS’ REPLY IN SUPPORT OF MOTION
TO STRIKE EXTRA-RECORD EVIDENCE
East Bay Sanctuary v. Trump,
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INTRODUCTION
The Court should strike all extra-record evidence submitted by Plaintiffs in support of
their merits arguments or cited for any purpose other than demonstrating organizational standing
or cognizable irreparable harm. The Court should also strike the additional extra-record evidence
Plaintiffs cite in their reply in support of their motion for preliminary injunction, filed after
Defendants had any opportunity to respond to it in merits briefing.1
Plaintiffs concede that this is an APA case and thus the record rule applies, and they do
not challenge—and therefore concede—that the record certified by the government is the full and
complete record. Only now that their attempt to circumvent the record rule has been called out
do Plaintiffs even attempt—unsuccessfully—to justify their reliance on extra-record evidence in
a record review case. But even those untimely arguments lack merit.
First, Plaintiffs identify no basis for this Court to consider extra-record evidence for any
purpose other than consideration of Plaintiffs’ organizational standing and the alleged irreparable
harm they suffer. Second, Plaintiffs’ assertion that the Defendants’ invocation of the foreign-
affairs or good-cause exceptions to notice-and-comment rulemaking was improper is subject to
the record rule, and Plaintiffs offer no basis to depart from that rule. Finally, even assuming
Plaintiffs have met their heavy burden of justifying departure from the record rule as to any of
their evidence, that evidence is not competent evidence for any of the purposes it is submitted for,
and the Court should disregard it.
ARGUMENT
At the threshold, Plaintiffs have not formally moved to submit extra-record evidence.
They have thus waived their ability to do so and should not be allowed to do so after Defendants
have filed their merits brief. See, e.g., Wiechers v. Moore, No. 1:13-CV-00223, 2014 WL
1400843, at *18 (E.D. Cal. Apr. 10, 2014) (declining to consider extra-record evidence because
“Plaintiff failed to timely petition for its consideration”). Even assuming Plaintiffs may simply
1 Because Plaintiffs have submitted yet more extra-record evidence, which Defendants address
below, Defendants are submitting a revised proposed order. All extra-record submissions listed
in that order should be struck for failure to demonstrate any basis to depart from the record rule.
Additionally, the list of documents and citations to be struck are incorporated by reference here.
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TO STRIKE EXTRA-RECORD EVIDENCE
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submit extra-record evidence without following the proper procedure, nothing in Plaintiffs’
opposition brief establishes any basis to depart from the record rule.
I.
Plaintiffs May Only Cite Extra-Record Evidence Relating to Standing and
Irreparable Harm.
Plaintiffs identify no basis for this Court to consider extra-record evidence for any purpose
other than consideration of Plaintiffs’ organizational standing and the alleged irreparable harm
they suffer. Plaintiffs assert that courts “routinely consider extra-record evidence concerning
whether injunctive relief should be granted,” but their citations to authority are misleading at best
and distinguishable. Opp. 3.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008), included claims under the
Endangered Species Act, claims under which are not limited to record review. See W. Watersheds
Project v. Kraayenbrink, 632 F.3d 472, 497 (9th Cir. 2011). Additionally, the extra-record
evidence issue was intensely litigated before the district and circuit courts, but it was not addressed
in briefing before the Supreme Court or discussed by the Court at all.2 Jiahao Kuang v. U.S.
Dep’t of Defense, 2018 WL 6025611 (N.D. Cal. Nov. 16, 2018) (Tigar, J.) is similarly inapt.
There, the parties did not brief the issue, but the Court nevertheless determined that, while it would
not strike the extra-record declaration at that time, it would “not consider its assertions as support
for the merits of DoD’s policy.” Id. at *30. Additionally, the question the Court said it could
consider was whether an injunction would “harm the public interest,” it did not decide that the
extra-record declaration could be considered for any and all non-merits purposes. Id. (emphasis
added). In Earth Island Inst. v. Evans, 256 F. Supp. 2d 1064 (N.D. Cal. 2003), the defendants did
not dispute that extra-record documents could be considered for equitable or public interest
considerations. Id. at 1078 n.16. Notably, the administrative record had not even been produced
yet in that case. Id. Moreover, the statute at issue there specifically directed the secretary to
engage a scientific study before the regulation could be relaxed, and accordingly the scope of data
2 See Brief for the Petitioners, Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) No. 07-
1239, 2008 WL 3285392; Brief of Respondent California Coastal Comm’n, Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7 (2008) No. 07-1239, 2008 WL 4181884; Brief for the Respondents,
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) No. 07-1239, 2008 WL 4154536.
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TO STRIKE EXTRA-RECORD EVIDENCE
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considered was statutorily at issue in a way not present here. See id. at 1069-70. Hill
Dermaceuticals, Inc. v. U.S. Food & Drug Admin., 2012 WL 5914516 (D.D.C. May 18, 2012), is
an unpublished decision where the court determined that it did not need to reach the non-merits
portions of the preliminary injunction analysis and thus ultimately deemed the extra-record
evidence “irrelevant and inadmissible for any purpose.” Id. at *10. While the D.C. Circuit
affirmed the decision, it did not reach the issue of the consideration of extra-record evidence. Hill
Dermaceuticals, Inc. v. U.S. Food & Drug Admin., 709 F.3d 44 (D.C. Cir. 2013). Finally, in Eco
Tour Adventures, Inc. v. Zinke, 249 F. Supp. 3d 360 (D.D.C. 2017), both parties submitted
declarations relating to the balance of harms and public interest and apparently consented to their
consideration. Id. at 369 n.7.
Plaintiffs also claim that they can submit evidence to preserve their third-party standing
argument for appeal while at the same time claiming that the Ninth Circuit’s decision is
controlling on merits issues. Compare Opp. 2 with ECF No. 92. Plaintiffs cannot have it both
ways. Plaintiffs also wrongly assert that they may submit evidence relating to their “prudential
standing” arguments. Opp. 2. They cite no authority for this claim. Indeed, the zone-of-interests
inquiry is not jurisdictional, Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
126, 128 n.4 (2014); it therefore is not exempt from the record rule.
Plaintiffs thus do not cite a single case actually holding that their evidence may be
considered other than for demonstrating organizational standing or irreparable harm tied to
cognizable claims of injury, and for good reason: their assertions are explicitly contrary to the
APA. See 5 U.S.C. § 706. They have therefore failed to establish that the Court should depart
from the record rule to consider the extra-record evidence they belatedly cite relating to the
balance of the equities and whether an injunction is in the public interest.
II.
The Government’s Invocation of the Foreign-Affairs and Good-Cause Exceptions
Provide no Basis to Depart from the Record Rule
Plaintiffs, without citing any authority, assert that the record review rule does not apply to
review of Defendants’ invocation of the foreign-affairs or good-cause exceptions to notice-and-
comment rulemaking. Opp. 5-8. But, the record rule is the default under the APA, 5 U.S.C.
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§ 706, and Plaintiffs point to no statute or case law justifying a deviation from that well-
established norm. Plaintiffs must carry the “heavy burden to show that the additional materials
sought are necessary.”3 Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th
Cir. 2010). They have not done so.
The APA provides no exception to the record rule for review of the invocation of the
foreign-affairs or good-cause exceptions to the notice-and-comment and delayed-implementation
requirements. As Defendants explained in their motion, Mot. 7, both are “findings[] and
conclusions” that Plaintiffs ask the Court to “set aside.” 5 U.S.C. § 706. If Plaintiffs are
challenging the failure of the rule to undergo notice-and-comment, then they are claiming that the
rule was issued “without observance of procedure required by law.” Id. § 706(2)(D). The APA
itself makes clear that judicial review of such a claim should be limited to the administrative
record: “In making the foregoing determinations, the court shall review the whole record or those
parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.” Id.
§ 706. Plaintiffs do not address this argument, and therefore have conceded it. See Ardente, Inc.
v. Shanley, No. C 07-4479 MHP, 2010 WL 546485, at *6 (N.D. Cal. Feb. 9, 2010) (“Plaintiff fails
to respond to this argument and therefore concedes it through silence.”), cited in Tagoia v. Wells
Fargo Bank, N.A., No. 17-CV-06777, 2018 WL 3377967, at *5 (N.D. Cal. July 11, 2018).
A.
Foreign-Affairs Exception
Rather than address the statute as written, Plaintiffs mischaracterize case law in an effort
to erect a novel exception to the record rule for cases involving the foreign-affairs exception. Opp.
5-6. Plaintiffs first assert that courts, including the Ninth Circuit, “have relied on extra-record
3 Plaintiffs bear the burden of demonstrating the agency’s action is arbitrary and capricious. See
George v. Bay Area Rapid Transit, 577 F.3d 1005, 1011 (9th Cir. 2009); City of Olmsted Falls,
Ohio v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002) (“[T]he party challenging an agency’s action as
arbitrary and capricious bears the burden of proof . . . . Indeed, even assuming the [agency] made
missteps . . . the burden is on petitioners to demonstrate that the [agency’s] ultimate conclusions
are unreasonable.”) (internal punctuation and citations omitted). A Court must be “highly
deferential” in an APA review case, and must “presum[e] the agency action to be valid . . . .” Nw.
Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007).
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evidence to assess whether a government agency properly invoked the foreign affairs exception,”
suggesting that evidence may be submitted by either party at any time. Opp. 5. That is wrong.
In Yassini v. Crosland, the court allowed the government to submit extra-record evidence
in the form of declarations from government officials, before the administrative record, if any,
was ever served. 618 F.2d 1356, 1361 (9th Cir. 1980). Indeed, citing Yassini, the Ninth Circuit
in this case, recognizing that no record had yet been submitted, stated that the government was
free to submit a “record on this issue in the district court.” East Bay Sanctuary Covenant v.
Trump, No. 18-17274, slip op. 57 (9th Cir. Dec. 7, 2018) (citing Yassini, 618 F.2d at 1361 (noting
affidavits in support of the foreign affairs exception from the Attorney General and Deputy
Secretary of State)). The Ninth Circuit did not invite Plaintiffs to submit extra-record evidence
to challenge the government’s reasoning.
Plaintiffs’ reliance on Doe v. Trump, 288 F. Supp. 3d 1045 (W.D. Wash. 2017), is also
misplaced and their characterization of it misleading. The court did not rely on or even “cite” to
the extra-record declaration from former officials the plaintiffs submitted in Doe; rather, the court
acknowledged that the government had not submitted any evidence on the issue and noted in a
footnote that the declaration was the only evidence on the issue in the record. Id. at 1076 n.21.
Furthermore, the decision contains no discussion as to whether the court could consider the
document under the record rule.
Plaintiffs also assert that the government bears the burden of showing why Plaintiffs may
not circumvent the extra-record rule. Opp. 6. That has the record rule completely backwards. It
is Plaintiffs who must establish an exception to the record rule in an APA case. San Luis & Delta-
Mendota Water Auth. v. Locke, 776 F.3d 971, 992-93 (9th Cir. 2014) (“the party seeking to admit
extra-record evidence initially bears the burden of demonstrating that a relevant exception
applies”). Again, they cite no authority to support their attempt to turn this burden on its head.
When a court reviews an agency determination, “there are no disputed facts that the district court
must resolve.” Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985). “[T]he function
of the district court is to determine whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision it did.” Id. There is no reason
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that the review of procedural claims, such as the government’s invocation of the foreign-affairs
exception, would depart from this. Indeed, regardless of the standard of review courts apply when
reviewing procedural APA claims, they do not go beyond the administrative record. See Sorenson
Commc’ns Inc. v. FCC, 755 F.3d 702, 707 (D.C. Cir. 2014) (relying on the administrative record
when reviewing the agency’s invocation of the good-cause exception); United States v. Johnson,
632 F.3d 912, 928 (5th Cir. 2011) (relying on the good-cause reasoning provided in the rule);
United States v. Valverde, 628 F.3d 1159, 1166-68 (9th Cir. 2010) (same); United States v. Dean,
604 F.3d 1275, 1279-81 (11th Cir. 2010) (same); United States v. Cain, 583 F.3d 408, 421 (6th
Cir. 2009) (same); United States v. Gould, 568 F.3d 459, 469 (4th Cir. 2009) (same); Hawaii
Helicopter Operators Ass’n v. FAA, 51 F.3d 212, 214 (9th Cir. 1995) (same); Am. Transfer &
Storage Co. v. Interstate Commerce Comm’n, 719 F.2d 1283, 1293 (5th Cir. 1983) (same).4
And that is especially appropriate with the foreign-affairs exception. Mot. 8-9. Under
Plaintiffs’ argument any challenger to government action involving foreign affairs could submit
a declaration second-guessing the government’s determinations on sensitive foreign-affairs
matters, thereby creating their own record, while the Executive’s conclusion that notice and
comment is not required because “there is involved . . . a military or foreign affairs function of
the United States,” 5 U.S.C. § 553(a), would be bound to the record it produced. Such a result
finds no support in the text of the APA or any case Plaintiffs cite, and so must be rejected.
As Plaintiffs have not shown that the foreign-affairs exception is exempt from the record-
review rule and alleged no exception to the rule that covers their extra-record evidence, the Court
must strike their extra-record evidence to the extent it addresses and is cited in relation to the
foreign-affairs exception.
B.
Good-Cause Exception
Plaintiffs concede that the record-review rule applies to the government’s invocation of
the good-cause exception, but claim that the Court may consider their evidence because it
4 Plaintiffs ultimately argue that “Defendants’ invocation of the foreign affairs exception fails
even if the Court ignores the additional evidence and looks only to the Rule and/or administrative
record.” Opp. 6. They thus admit that their extra-record evidence is not “necessary” for the Court
to adequately review the agencies’ decision, which they have the “heavy burden” of showing.
Fence Creek Cattle Co., 602 F.3d at 1131.
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identifies “relevant factors the agency did not consider.” Opp. 6-7; see Jiahao Kuang, 2018 WL
6025611 at *8 (discussing this exception to the record rule). Other than that conclusory statement,
however, Plaintiffs do not identify what relevant factors they believe the agencies failed to
consider that would thus allow the Court to consider their extra-record evidence. They have
therefore failed to meet their heavy burden of establishing that an exception applies. Fence Creek
Cattle Co., 602 F.3d at 1131; see also Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.
2005) (“These limited exceptions operate to identify and plug holes in the administrative
record.”).
None of the cases Plaintiffs cite support them. The Ninth Circuit in Earth Island Inst.
merely stated that the district court properly admitted the extra-record evidence under the
“relevant factors” exception. 442 F.3d at 1162. The ability of the Court to do so is not in dispute.
And there is no support for Plaintiffs’ claim that the Supreme Court in Winter discussed an extra-
record declaration “pursuant to ‘relevant factors’ exception.” Contrary to Plaintiffs’ suggestion,
those words do not appear anywhere in the Court’s decision, and that issue was not litigated before
or addressed by the Court. Indeed, the briefing before the Court makes no mention of the extra-
record evidence issue. See supra n.2.
Plaintiffs fault Defendants for not citing authority foreclosing consideration of extra-
record evidence in good-cause cases and suggest that, because they believe the agencies’
invocation of the good-cause exception is not entitled to deference, review of that invocation is
exempt from the record rule. See Opp. 7-8. But as with their foreign-affairs argument, Plaintiffs
again have it backwards by suggesting anyone but them bear the burden of demonstrating that
departing from the record rule is warranted. Fence Creek Cattle Co., 602 F.3d at 1131.
Additionally, they fail to cite any case in support of their claim that good-cause cases are exempt
from the record rule. See Opp. 7-8. Their invocation of an exception to that rule belies the fact
that they understand the record rule to apply.
Plaintiffs assert that the question here is a legal, not factual, one by arguing that the
agencies’ legal conclusions are subject to de novo review. Opp. 7. But Plaintiffs confuse legal
standards of review with whether the court may create a new record when applying those
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standards. Regardless whether de novo or arbitrary-and-capricious review applies to the
government’s invocation of good cause, see Valverde, 628 F.3d at 1162 (declining to determine
whether review an invocation of the good-cause exception under a de novo or arbitrary-and-
capricious standard), it is well-settled that in an APA case, “the focal point for judicial review
should be the administrative record already in existence, not some new record made initially in
the reviewing court,” Camp v. Pitts, 411 U.S. 138, 142 (1973), and that the court does not “resolve
any facts in a review of an administrative proceeding,” Occidental Eng’g Co., 753 F.3d at 769.
Based on this well-established APA principle, therefore, Plaintiffs cannot justify a departure from
the record rule under the relevant factors exception.5
III.
Plaintiffs’ Extra-Record Evidence Is Otherwise Inappropriate.
Even assuming Plaintiffs have satisfied their heavy burden for submission of extra-record
evidence in an APA record-review case, their submissions are inappropriate on their own merits.
Plaintiffs seek admission of four types of documents: (1) twenty-seven declarations,
including supplemental declarations and corrected declarations, many of which cite news articles,
NGO reports, and other non-record documents; (2) two news articles; (3) a comment to a rule
from an attorney organization; and (4) a USCIS document regarding credible fear caseloads from
USCIS’s website. The declarations can be further broken down into two categories: (1)
declarations from third-party experts, researchers, advocates, or former officials challenging the
soundness of the agencies’ decision or providing information about conditions in Mexico or
Central American countries; and (2) declarations from employees of the Plaintiff organizations.
None of these documents are relevant to Plaintiffs’ claims—(1) that the rule conflicts with the
asylum statute, and (2) that the rule violates the APA’s notice and comment and delayed
effectiveness requirements, see Compl. ¶¶ 101-06, 108-10—and instead improperly second-guess
5 Plaintiffs again seem to overlook that their own reasoning does not justify a departure from the
APA’s record rule. They argue that they “are likely to succeed on this claim even if the Court
limits its review to the administrative record.” Opp. 8. They therefore concede that they have not
met their “heavy burden to show that the additional materials sought are necessary” for the Court
to adequately review the agencies’ decision. Fence Creek Cattle Co., 602 F.3d at 1131 (emphasis
added).
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the agencies’ decision. Additionally, much of the extra-record evidence should be struck because
it is inadmissible under the Federal Rules of Evidence.6
A.
Declarations from Professors, Researchers, Advocates, and Former
Government Officials
Plaintiffs’ attempt to introduce their many self-serving declarations regarding the wisdom
of the rule is off-base. “Even where the Court allows such supplementary evidence,
‘[c]onsideration of the evidence to determine the correctness or wisdom of the agency’s decision
is not permitted, even if the court has also examined the administrative record.’” Jiahao Kuang,
2018 WL 6025611 at *27 (quoting Asarco, Inc. v. U.S. Envtl. Prot. Agency, 616 F.2d 1153, 1160
(9th Cir. 1980)). Plaintiffs’ submission of and citations to these documents fly in the face of this
prohibition.
First, the declarations submitted in an effort to undermine the agencies’ keeping of and
reliance on their statistics do not fit the exception invoked and improperly challenge the “wisdom
of the agenc[ies’] decision.”7 See id. These declarations do not meet an exception and are purely
submitted in an attempt to second-guess the wisdom of the agencies’ decision. Additionally, these
attempts at back-dooring in inadmissible hearsay—the news stories—should be deflected. Fed.
6 Each of the following items contains inadmissible statements: ECF No. 8-2; ECF No. 8-3; ECF
No. 8-4; ECF No. 8-5; ECF No. 8-6; ECF No. 35-1; ECF No. 35-2; ECF No. 35-3; ECF No. 35-
4; ECF No. 35-5; ECF No. 35-6; ECF No. 35-7; ECF No. 35-8; ECF No. 35-9; ECF No. 35-10;
ECF No. 71-1; ECF No. 71-2; ECF No. 71-4; ECF No. 71-5; ECF No. 71-6; ECF No. 71-7; ECF
No. 71-8; ECF No. 71-9; Nick Miroff & Missy Ryan, “Army assessment of migrant caravans
undermines Trump’s rhetoric,” Washington Post (Nov. 2, 2018); Vanessa Romo, “LGBT Splinter
Group from Migrant Caravan is the 1st to Arrive in Tijuana,” NPR (Nov. 13, 2018); Comment of
American Immigration lawyers Association on proposed immigration appeal regulation (Aug. 18,
2008); USCIS, Credible Fear Workload Summary, from USCIS.gov.
7 For example, the Isacson Declaration at ECF No. 8-2 provides various statistics regarding border
crossings over the years and proffers the author’s opinion that the caravan will take a long time
to arrive and that only about 15 to 20 percent of the members of the caravan will arrive at the
U.S.-Mexico border. ECF No. 8-2 at ¶¶ 9-10. The Cutlip-Mason Declaration at ECF No. 35-2
describes the author’s opinions, based on her time working with EOIR, as to the faults in EOIR’s
data keeping regarding in absentia removals. And in the Rodriguez Declaration at ECF No. 35-
9, the author states that “it has always been [his] understanding that USCIS expends the same
level of resources to process asylum seekers who enter the United States at ports of entry and
asylum seekers who enter between ports of entry.” Id. at ¶ 7.
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R. Evid. 802. Moreover, these statements attempt to usher in factual allegations about which the
declarants have not established personal knowledge, also requiring their inadmissibility. Fed. R.
Evid. 602.
Second, Plaintiffs’ declarations also attempt to undermine the agencies’ explanation for
the need to have an orderly application process and to discourage asylum seekers from making
the dangerous trek across the border.8 Not only do these declarations improperly second-guess
the agencies’ determinations, they go to issues the Ninth Circuit has found not at issue in this case
and thus are irrelevant. Op. at 28 (“And although the Organizations describe significant
hindrances their clients have experienced in applying for asylum at ports of entry, as well as
significant risks their clients may face in towns lining the country’s southern border, neither of
those concerns is at issue in this lawsuit.”)
Third, the declarations describing researchers’, advocates’, and professors’ beliefs and
prognostications as to the behavior of caravans, the knowledge of asylum seekers, and the persons
that make up past and current caravans also seek to challenge the correctness of the agencies’
decisions. For example, several declarations state that members of prior caravans entered at ports
of entry9 and that many asylum seekers are unaware that they may present themselves at ports of
entry, do not understand the concept of a port of entry, or are forced to cross between ports by
criminal elements.10 Some provide information about the members and aims of this and past
caravans.11 At least one discusses the violence facing members of the caravan in their home
8 See ECF No. 35-4 at ¶¶ 5-10 (discussing the backlog for asylum applicants at the border); ECF
No. 35-5 at ¶ 5 (discussing wait times and dangers in Mexico for LGBTQ individuals); ECF No.
71-6 (describing the author’s concerns about the health and well-being of those waiting to enter
the United States); ECF No. 71-7 (describing the author’s observations of the “metering” of
asylum applicants at the border and the conditions they live in while waiting to enter).
9 ECF No. 8-2 at ¶ 10; ECF No. 35-5 at ¶ 9; ECF No. 35-8 at ¶ 23; ECF No. 71-2 at ¶ 23.
10 ECF No. 8-4 at ¶ 26; ECF No. 8-6 at ¶ 14; ECF No. 35-4 at ¶ 12; ECF No. 35-6 at ¶ 4; ECF
No. 71-5 at ¶ 19.
11 ECF No. 35-7; ECF No. 71-9.
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countries.12 Plaintiffs have not established how this is relevant to their claims or how these
declarations and citations thereto meet an exception to the record rule. Also, these statements are
not only inadmissible hearsay upon hearsay without exception, they appear to lack competence
because the declarants do not have personal knowledge of the factual statements made. See Fed.
R. Evid. 602, 802, & 805.
Fourth, Plaintiffs’ attempt to submit a declaration proclaiming the rule inconsistent with
the United States’ international obligations is off-base.13 U.S. Federal Courts determine whether
our laws comply with our international obligations, see INS v. Cardoza-Fonseca, 480 U.S. 421,
429 (1987), not scholars or other non-U.S. entities. And in addition to being improper expert
testimony, these statements are classic legal conclusions, and are therefore inadmissible. United
States v. Scholl, 166 F.3d 964, 973 (9th Cir. 1999).
Fifth, and finally, Plaintiffs, through their extra-record declarations, improperly attempt to
challenge the propriety and wisdom of a safe-third country agreement with Mexico.14 The
opinions of the declarants as to the propriety of a safe-third country agreement with Mexico are
entirely improper. Plaintiffs are not challenging the Administration’s seeking of such an
12 ECF No. 71-7.
13 ECF No. 8-5 (“In my opinion, this new policy is inconsistent with and violates the international
obligations of the United States.”); see also ECF No. 71-9 (discussing the “harmful effects of
attempt to implement hard-line border controls that aim to deter migration”).
14 For example, in the Supp. Isacson Declaration, the author writes that he believes Mexico cannot
be a safe third country. ECF No. 35-4 at ¶ 11. Similarly, the Chavla Declaration at ECF No. 35-
1 discusses the situation facing asylum-seekers in Mexico and is attached to a report entitled “Why
Mexico Does Not Qualify as a Safe Third Country.” The Griffey Declaration at ECF No. 35-3
discusses the author’s impressions as to the dangerous situation in Mexico and includes a report
he wrote about those dangers. See also ECF No. 71-5 (discussing the conditions in Mexico). The
Former Officials’ Declaration at ECF No. 71-4 similarly questions the wisdom of the rule’s stated
goals and the actions the Administration has taken to achieve those goals. Id. at ¶ 5 (“Contrary to
the Administration’s claims, there is no migration emergency at the southern border.”); id. at ¶ 6
(providing examples of what the government could do to “manage the challenge of large volumes
of asylum applications”); id. at ¶ 7 (discussing with approval policies enacted by the last
Administration); id. at ¶ 9 (“In sum, the Administration has launched a series of counter-
productive policy measures that create new humanitarian problems, then mischaracterizes the
predictably calamitous outcome of these failed measures as an “emergency” that justifies further
punitive actions against asylees themselves.”).
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agreement. To the extent they are attempting to submit such evidence to indirectly challenge the
wisdom of the rule or the invocation of the foreign-affairs exception, their evidence does not meet
one of the exceptions. Moreover, the opinions provided by former government officials,
researchers, and scholars acting as armchair quarterbacks is wholly inappropriate. The issue here
is not whether former government officials agree with the policy but whether it is arbitrary and
capricious. See ECF No. 71-4 at ¶ 10 (“In our professional judgment, the failure to move forward
immediately with an emergency rule will not damage our relations with Mexico or Northern
Triangle countries.”). None of these former officials, scholars, or researchers are parties to the
negotiations currently underway, and their speculation as to the potential impact of the rule is not
properly before this Court because it is not based on personal knowledge. Fed. R. Evid. 602, and
if they are to be considered expert witnesses, these statements are also inadmissible legal opinions,
Scholl, 166 F.3d at 973.
A common theme runs throughout these declarations—the authors believe the rule is
unwise or will not achieve its stated goals. However, Plaintiffs and their declarants are not the
decision makers. And their disagreement with the government’s policy—even their disagreement
as to the effect the policy will have—does not exempt their evidence from the record rule.
B.
Declarations from Plaintiffs’ Employees
As stated in Defendants’ motion to strike, Defendants do not object to the inclusion and
citation to the declarations submitted by employees of the Plaintiff organizations to the extent
they support Plaintiffs’ organizational standing and irreparable harm arguments. Mot. 5.
However, the declarations authored by Plaintiffs’ employees cannot be admitted to the extent they
are cited in support of third-party standing arguments, to allege irreparable harm to third parties,
and to support zone-of-interest arguments. See Op. 27-28 (Plaintiffs do not have third-party
standing); Lexmark Int’l, Inc., 572 U.S. at 126, 128 n.4 (zone-of-interests inquiry is not
jurisdictional). It is one of the most foundational rules of evidence in the federal system: only
relevant evidence is admissible. Fed. R. Evid. 401, 402. Accordingly, to the extent these
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declarations are admitted, all of the statements in these declarations that do not have any tendency
to make a fact at issue more or less true should be struck.15 Id.
Moreover, because whether a plaintiff is within the zone of interests is not a jurisdictional
question, Lexmark, 572 U.S. 118, citations to extra-record evidence for this purpose are not
exempt from the record rule.16 See Nw. Envtl. Advocates v. U.S. Dep’t of Commerce, 322 F. Supp.
3d 1093, 1099 n.3 (W.D. Wash. 2018) (“The Court takes judicial notice of extra-record evidence
Plaintiff presents from agency websites to the extent it goes to the issue of jurisdiction.”)
(emphasis added).
In sum, the citations to and information in these extra-record documents relating to any
argument other than Plaintiffs’ assertions of organizational standing and irreparable harm to those
organizations are improper under the record rule and do not meet one of its narrow exceptions. It
follows that these statements are not relevant because that have no bearing on Plaintiffs’ claims—
their alleged organizational harm. Fed. R. Evid. 401, 402. Accordingly, they are also
inadmissible and should be struck.
C.
News Articles and Internet Documents
The Court should also strike two news articles, an online document from the American
Immigration Lawyers Association, and a USCIS document Plaintiffs cite in support of merits
arguments.17 The citations to these articles are clearly an attempt to second-guess the correctness
15 Specifically, citations to the following declarations should be struck to the extent they refer to
third-party standing arguments or to support arguments about harms to third parties: ECF No. 8-
4; ECF No. 35-8; ECF No. 71-2; ECF No. 71-4; ECF No. 71-5; ECF No. 71-6; ECF No. 71-8;
ECF No. 71-1; ECF No. 71-9). Similarly, citations to and statements regarding the alleged
irreparable harms relating to organization employees’ accompanying children in Mexico should
also be struck because, as the Ninth Circuit found, the concerns relating to those actions are not
relevant to this suit: ECF No. 71-2 on pages 9-10 of ECF No. 71; and ECF No. 71-8 on pages 9-
10 of ECF No. 71. Op. 28.
16 The following declarations are cited in support of Plaintiffs’ zone-of-interests arguments, and
those citations should be struck, as set forth in Defendants’ proposed order: ECF No. 8-3; ECF
No. 8-4; ECF No. 8-6; ECF No. 8-7; ECF No. 35-6; ECF No. 35-10.
17 Plaintiffs cite a Washington Post article from November 2, 2018 in their TRO motion and reply
and in the reply in support of their preliminary injunction motion for information about military
estimates of how many members of the caravan would reach the United States. Nick Miroff &
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or wisdom of the agency’s decision, which is not permitted in an APA case. See Jiahao Kuang,
2018 WL 6025611 at *27.18
In addition to these news articles, all the news articles cited in the declarations should be
struck. The declaration statements citing the news articles constitute layers and layers of hearsay,
each being inadmissible. Indeed, if any one link in the hearsay-within-hearsay chain is
inadmissible, all of it is inadmissible. Fed. R. Evid. 805; United States v. Pena-Gutierrez, 222
F.3d 1080, 1087-88 (9th Cir. 2000). Here, the statements in the declarations are each offered for
their truth, as well as the statements made by the writers in the news articles, and the individuals
quoted by the writers. That is at least four layers of hearsay offered for truth in the declarations,
and three in each article, and because there is no exception, they are inadmissible. See United
States v. Mays, 246 F.3d 677, 2000 WL 1860727, at *1 (9th Cir. 2000) (not reported).
Plaintiffs cite two other extra-record documents that should be struck—a comment by the
American Immigration Lawyers Association cited at ECF No. 35 at 4 n.3, and charts produced by
U.S. Citizenship and Immigration Services cited at ECF No. 71 at 19 n.4. Neither are included in
the administrative record, and Plaintiffs have provided no reason to justify their inclusion.
Accordingly, on top of being inadmissible hearsay offered for truth, they are also inadmissible
because they lack relevance to the material issues raised by Plaintiffs’ organizational claims. Fed.
R. Evid. 401, 402, 801, 802.
CONCLUSION
Plaintiffs have not met their “heavy burden” of establishing an exception to the record
rule. Accordingly, the Court should strike the extra-record evidence to the extent it is not
Missy Ryan, “Army assessment of migrant caravans undermines Trump’s rhetoric,” Washington
Post (Nov. 2, 2018), cited at ECF No. 8-1 at 10 n.5; ECF No. 35 at 9; ECF No. 92 at 9 n.11. And
they cite to an NPR article for the proposition that “many of the caravan’s members were already
expected to seek asylum at a port of entry, contrary to the rule’s unsupported claim that they will
seek to enter unlawfully.” ECF No. 35 at 9 n.8 (citing Vanessa Romo, “LGBT Splinter Group
from Migrant Caravan is the 1st to Arrive in Tijuana,” NPR (Nov. 13, 2018)).
18 Additionally, the NPR article post-dates the rule and thus “may not be advanced as a new
rationalization either for sustaining or attacking an agency’s decision.” Ctr. for Biological
Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir.2006) (internal citations and
quotations omitted).
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submitted in support of Plaintiffs’ organizational standing and related irreparable harm claims.
And even if Plaintiffs have met their heavy burden, their evidence is not competent evidence and
the Court should disregard it.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
AUGUST E. FLENTJE
Special Counsel
WILLIAM C. PEACHEY
Director
EREZ REUVENI
Assistant Director
By: /s/ Christina P. Greer
CHRISTINA P. GREER
Trial Attorney
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 598-8770
Email: Christina.P.Greer@usdoj.gov
PATRICK GLEN
Senior Litigation Counsel
JOSEPH DARROW
FRANCESCA GENOVA
KATHRYNE GRAY
BENTON YORK
Trial Attorneys
Dated: December 16, 2018
Attorneys for Defendants
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CERTIFICATE OF SERVICE
I hereby certify that on December 16, 2018, I electronically filed the foregoing document
with the Clerk of the Court for the United States Court of for the Northern District of California
by using the CM/ECF system. Counsel in the case are registered CM/ECF users and service will
be accomplished by the CM/ECF system.
By: /s/ Christina P. Greer
CHRISTINA P. GREER
Trial Attorney
United States Department of Justice
Civil Division
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[PROPOSED] ORDER
East Bay Sanctuary v. Trump,
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JOSEPH H. HUNT
Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
AUGUST E. FLENTJE
Special Counsel
WILLIAM C. PEACHEY
Director
EREZ REUVENI
Assistant Director
CHRISTINA P. GREER
Trial Attorney
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 598-8770
Email: Christina.P.Greer@usdoj.gov
PATRICK GLEN
Senior Litigation Counsel
JOSEPH DARROW
FRANCESCA GENOVA
KATHRYNE GRAY
BENTON YORK
Trial Attorneys
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
)
East Bay Sanctuary Covenant, et al.,
)
)
Plaintiffs,
)
[PROPOSED] ORDER GRANTING
)
MOTION TO STRIKE
)
v.
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Civil Action No. 3:18-cv-06810-JST
)
Donald J. Trump, President of the United )
States, et al.,
)
)
Defendants.
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)
Case 3:18-cv-06810-JST Document 94-1 Filed 12/16/18 Page 1 of 2
[PROPOSED] ORDER
East Bay Sanctuary v. Trump,
Case No. 3:18-cv-06810-JST
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The Court GRANTS Defendants’ Motion to Strike and hereby strikes the following:
(1) Isacson Declaration (ECF No. 8-2), Goodwin-Gill Declaration (ECF No. 8-5), Chavla
Declaration (ECF No. 35-1), Cutlip-Mason Declaration (ECF No. 35-2), Griffey
Declaration (ECF No. 35-3), Supp. Isacson Declaration (ECF No. 35-4), Love Declaration
(ECF No. 35-5), Supp. Manning Declaration (ECF No. 35-6), Penman Declaration (ECF
No. 35-7), Rodriguez Declaration (ECF No. 35-9), Seyler Declaration (ECF No. 35-10),
Former Officials’ Joint Declaration (ECF No. 71-4), Slack Declaration (ECF No. 71-5),
Mitchell-Bennet Declaration (ECF No. 71-6), Brané Declaration (ECF No. 71-7), Supp.
Penman Declaration (ECF No. 71-9), and Corrected Ramos Declaration (ECF 84-1) and
citations thereto in Plaintiffs’ Motion for Temporary Restraining Order (ECF No. 8-1),
Reply in Support of Temporary Restraining Order (ECF No. 35), and Motion for
Preliminary Injunction (ECF No. 71) and all citations therein and thereto;
(2) citations to Sharp Declaration (ECF No. 8-3) at page 14 of ECF No. 71; Pinheiro
Declaration (ECF No. 8-4) on pages 8 and 15 of ECF No. 8-1, pages 10 and 14 (second
citation) of ECF No. 35, pages 12 and 14 of ECF No. 71, and page 10 nn.12-13 of ECF
No. 92; Manning Declaration (ECF No. 8-6) at page 8 of ECF No. 8-1, page 14 of ECF
No. 71, and page 10 n.12 of ECF No. 92; Smith Declaration (ECF No. 8-7) at page 14 of
ECF No. 71; Supp. Pinheiro Declaration (ECF No. 35-8) at pages 7-8 and 14 of ECF No.
35 and page 10 nn.12-13 of ECF No. 92; Corrected Supp. Pinheiro Declaration (ECF No.
71-2) at pages 9-10 and 12-13 of ECF No. 71; and Ramos Declaration (ECF No. 71-8) at
pages 7, 9-10, 12-13, and 17 of ECF No. 71; and
(3) citations to non-record news articles and internet documents at page 10 n.5 of ECF No. 8-
1; pages 4 n.3 and 9 & n.8 of ECF No. 35; page 19 n.4 of ECF No. 71; and page 9 n.11 of
ECF No. 91.
IT IS SO ORDERED.
Issued this _____ day of _____________________, 201__.
____________________________
United States District Judge
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