1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 TREEZ, INC., et al., 10 Case No. 22-cv-07027-RS Plaintiffs, 11 v. ORDER OVERRULING OBJECTION 12 TO DETERMINATION OF THE

UNITED STATES DEPARTMENT OF MAGISTRATE JUDGE

13 HOMELAND SECURITY, et al.,

14 Defendants.

15 16 Plaintiffs Treez, Inc., and its employee, Ameya Pethe, bring this suit under the 17 Administrative Procedures Act (“APA”), alleging defendants wrongfully denied Pethe’s H1-B 18 visa petition. Treez is an enterprise cloud commerce platform that provides software solutions for 19 use by its customers, including state-legal cannabis brands and retailers. In 2021, Treez petitioned 20 USCIS for H-1B status for Pethe, a software developer from India, to work as its Director of 21 Development Operations while residing in the state of Missouri. Although defendants approved 22 Treez’s petition in January of 2022, they later denied an amended petition to change the location 23 of Pethe’s employment because “the services to be provided by the beneficiary will aid or abet 24 activities related to the manufacture, cultivation, distribution, or possession of marijuana” and 25 according to defendants therefore constitute illegal employment. 26 As required in actions under the APA, defendants have produced a certified 27 “Administrative Record,” that purportedly consists of “all documents and materials directly or 1 agency’s position.” Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989); see also 2 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (courts must review 3 “the full administrative record that was before the [agency] at the time [it] made [the] decision”). 4 Plaintiffs, however, challenged the completeness of the materials produced. See Ctr. for Envtl. 5 Health v. Perdue, 2019 WL 3852493, at *2 (N.D. Cal. May 6, 2019) (“Motions to complete the 6 Administrative Record may be granted where the agency fails to submit the ‘whole record.’”). 7 Defendants now object to the order of the assigned magistrate judge requiring them to 8 “search for and produce as part of the Administrative Record (1) internal deliberative documents 9 concerning the petitions and rule change at issue, or a detailed privilege log identifying any 10 withholdings, and (2) materials concerning past adjudications of similarly situated petitions and 11 any departure from those decisions or their past policy.” A district court may modify a magistrate 12 judge’s ruling on a non-dispositive matter only if the order is “clearly erroneous” or “contrary to 13 law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Bahn v. NME Hospitals, Inc., 929 F.2d 1404, 14 1414 (9th Cir.1991). Defendants have made no such showing here, and their objection must be 15 overruled. 16 (1) To the extent defendants argue the magistrate judge erred in ordering them to produce 17 “extra-record documents,” they misconstrue the order and its rationale. The term “supplementing” 18 arguably is vague, as it might suggest either providing additional documents that always should 19 have been part of the certified record, or providing additional documents that may be considered 20 during APA review under one or more of the “exceptions” set out in Lands Council v. Powell, 395 21 F.3d 1019, 1030, (9th Cir. 2005). Here, however, the order makes clear defendants must search for 22 and produce documents “as part of the Administrative Record,” not that they are being asked to 23 produce in discovery “extra-record documents,” because of any potential relevance under a Lands 24 Council exception. Accordingly, defendants’ arguments that plaintiffs failed to establish a Lands 25 Council exception are not germane. 26 (2) Defendants contend the magistrate judge failed to apply “the recognized presumption 27 of regularity and completeness that attaches to certified administrative record.” To the contrary, 1 the magistrate judge’s order specifically acknowledged that presumption, Order at 4:4-13 (Dkt. 2 No. 45), and provided a well-reasoned explanation of how plaintiffs had rebutted it. See Order at 3 4:20-24 (“Defendants do not deny they have not provided materials related to internal 4 deliberations, but they argue ‘deliberative material is not part of the administrative record . . . .’ 5 However, the broad definition of the administrative record places all materials ‘directly or 6 indirectly considered’ into the record in the first instance.”); see also Order at 5:22-6:24 and cases 7 cited therein for the proposition that defendants’ acknowledged withholding of documents 8 allegedly reflecting deliberations, absent production of privilege log, rebuts presumption of 9 completeness; see also Order at 7:18-8:26 explaining why, with respect to documents related to 10 other petitions, “The Court finds Plaintiffs have identified reasonable, non-speculative grounds for 11 their belief that documents were considered by the agency and not included in the record.” 12 Defendants also rely on California v. DHS, 612 F. Supp. 3d 875, 891 (N.D. Cal. 2020) and 13 People of State of Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., 2006 WL 708914, at *2 (N.D. Cal. 14 Mar. 16, 2006), for the proposition that even where a plaintiff succeeds in rebutting the 15 presumption of completeness, it must still show that the information it seeks falls within one of the 16 “narrow exceptions” of Lands Council. That simply is a misstatement of law—the Lands Council 17 exceptions relate to material outside the administrative record that may nonetheless be considered 18 in an APA action, under appropriate circumstances. What is properly part of the complete 19 administrative record is an entirely separate question. Although California v. DHS addressed both 20 issues, nothing in its discussion or holding suggests that production of materials omitted from the 21 administrative record may only be compelled if they also would be appropriate for consideration 22 as extra-record evidence under a Lands Council exception. Ex rel. Lockyer addressed only a 23 challenge to completeness of the record, and imposed no requirement to establish a Lands Council 24 exception for documents that are properly part of the “full administrative record.” 25 (3) Defendants contend they cannot be compelled to submit documents relating to “past 26 adjudications of similarly situated petitions and any departure from those decisions or their past 27 policy” because there is no “clear evidence” they considered such materials when deciding the 1 petition here. The magistrate judge’s explanation as to why any such materials are appropriately 2 || considered as part of the administrative record is compelling and neither clearly erroneous nor 3 || contrary to law. See Order at 6:16-8:26. Again, defendants’ additional argument that plaintiffs 4 || must also establish an applicable Lands Council exception is without merit. 5 (4) Finally, defendants object to producing internal deliberative documents or a privilege 6 || log for such materials. To the extent defendants argue such documents are not properly part of the 7 administrative record, the magistrate judge set out the case law in this district that rejects that 8 || view. Defendants’ repeated assertion that a Land Council exception is required again fails. 9 10 || ITISSO ORDERED. 11 a 12 Dated: July 28, 2023

RICHARD SEEBORG

5 14 Chief United States District Judge 15 16

= 17

Z 18

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