Nassr Mohamed, Et al. v. United States Department of Agriculture Food and Nutrition, No. 1:2005cv00657 - Document 115 (E.D. Cal. 2009)
Court Description: ORDER GRANTING IN PART and DENYING IN PART 111 Defendant's Motion to Limit Discovery; ORDER DIRECTING Meet and Confer and Filing of Amended Joint Statement Regarding Discovery Issues and Scheduling- Filing Deadline: 10/5/2009; ORDER SETTING Telephonic Discovery and Scheduling Conference for 10/15/2009 at 10:30 AM before Judge Snyder; Signed by Magistrate Judge Sandra M. Snyder on 9/15/2009. (Arellano, S.)
Download PDF
<![CDATA[
Nassr Mohamed, Et al. v. United States Department of Agriculture Food and Nutrition Doc. 115 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 NASSR MOHAMED, as owner of Family Food Market and co-owner of Parkview Market, et al., 1:05-cv-00657-SMS ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO LIMIT DISCOVERY (Doc. 111) 13 Plaintiffs, 14 vs. ORDER DIRECTING MEET AND CONFER AND FILING OF AMENDED JOINT STATEMENT REGARDING DISCOVERY ISSUES AND SCHEDULING (Doc. 107) Deadline: 10/5/09 15 16 UNITED STATES DEPARTMENT OF AGRICULTURE FOOD AND NUTRITION, 17 Defendant. 18 ORDER SETTING TELEPHONIC DISCOVERY AND SCHEDULING CONFERENCE Date: 10/15/09 Time: 10:30 a.m. / 19 20 21 Plaintiffs are proceeding with a civil action in this Court. 22 Pursuant to the parties’ consent, the action has been assigned to 23 the Magistrate Judge for all proceedings, including the entry of 24 final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 25 73(b), and Local Rule 73-301 (Doc. 17). 26 The motion of Defendant to limit discovery in this case to 27 the issue of trafficking came on regularly for hearing on 28 September 4, 2009, at 9:30 a.m. in Courtroom 7 before the 1 Dockets.Justia.com 1 Honorable Sandra M. Snyder, United States Magistrate Judge. 2 Bruce D. Leichty appeared on behalf of Plaintiffs. 3 United States Attorney Alyson A. Berg appeared on behalf of 4 Defendant. 5 Court. Assistant After argument, the matter was submitted to the 6 The Defendant’s motion, points and authorities, declaration 7 of Teresa Toups and exhibits thereto were filed on July 20, 2009 8 (Doc. 111). 9 112). 10 Plaintiffs filed opposition on August 10, 2009 (Doc. Defendant filed a reply, including a declaration of Alyson A. Berg, on August 24, 2009 (Doc. 113). 11 I. Defendant’s Prayer 12 Defendant seeks an order limiting discovery to the witnesses 13 and documents necessary to adjudicate the validity of Food and 14 Nutrition Services’ (FNS’s) finding of trafficking of food stamps 15 by employees of Plaintiffs’ retail stores Parkview Market and 16 Family Food Market. 17 II. Legal Standards 18 In this action, Plaintiffs seek to strike and set aside 19 Defendant’s administrative order that permanently disqualified 20 Parkview Market and Family Food Market from further participation 21 in the Food Stamp/EBT program, including imposing a civil money 22 penalty; bar Defendants from imposing on Plaintiffs, the owners, 23 a civil money penalty to the extent that Plaintiffs sell or 24 otherwise transfer the markets or any assets thereof to a new 25 owner; and, costs and reasonable attorney’s fees. 26 The action proceeds pursuant to 7 U.S.C. § 2023(a), which 27 provides in pertinent part: 28 // 2 1 2 3 4 5 6 (13) If the store, concern, or State agency feels aggrieved by such final determination, it may obtain judicial review thereof by filing a complaint against the United States in the United States court for the district in which it resides or is engaged in business, or, in the case of a retail food store or wholesale food concern, in any court of record of the State having competent jurisdiction, within thirty days after the date of delivery or service of the final notice of determination upon it, requesting the court to set aside such determination. .... 7 8 9 10 15) The suit in the United States district court or State court shall be a trial de novo by the court in which the court shall determine the validity of the questioned administrative action in issue, except that judicial review of determinations regarding claims made pursuant to section 2025(c) of this title shall be a review on the administrative record. 11 12 13 14 (16) If the court determines that such administrative action is invalid, it shall enter such judgment or order as it determines is in accordance with the law and the evidence. 7 U.S.C. § 2023(a).1 15 Plaintiffs argue that the words of the statute permit a 16 trial de novo with respect to both the findings of violations and 17 the penalty. 18 standard of review, that is, the type of review undertaken by a 19 district court, and the scope of review, that is, the extent of 20 the evidence that will be before a district court in addition to 21 the administrative record. 22 has been interpreted to require a bifurcated standard of review, 23 meaning that in determining the validity of the agency action, 24 that is, the finding that there were violations of the Act, there 25 is a trial de novo; however, if the facts establish violations, 26 then review of the sanction imposed by the FNS is under an However, in this circuit, cases set forth both the In the Ninth Circuit, § 2023(a)(15) 27 28 1 Section 2025 is not applicable. 3 1 arbitrary and capricious standard such that the sanction will be 2 overturned if it is found that the sanction was arbitrary and 3 capricious, that is, if, in light of the administrative record, 4 the agency did not properly apply the regulation, or the sanction 5 was unwarranted in law or without justification in fact. 6 United States, 859 F.2d 129, 131-32 (9th Cir. 1988) (citing 7 7 U.S.C. § 2023(a) and Congressional intent); see, Butz v. Glover 8 Livestock Commission Co., 411 US. 182, 185-86 (1973). 9 Wong v. The standard has been described as meaning that once a 10 district court finds that violations were committed, it may not 11 overturn the sanction unless it finds that the sanction was 12 arbitrary and capricious. 13 determination regarding whether the sanction’s severity was 14 arbitrary and capricious is made in light of the administrative 15 record. 16 Wong, 859 F.2d at 132. Further, this Wong, 859 F.2d 129, 132.2 With respect to the findings of violations of the Food Stamp 17 Act subject to de novo review, Plaintiff bears the burden of 18 demonstrating the violations of the Act did not occur. 19 United States, 962 F.Supp.2d 1225, 1228 (N.D.Cal. 1997). 20 Lopez v. However, the application of this standard does not prevent 21 de novo review of facts just because the facts are primarily 22 relevant to the imposition of sanctions. 23 court reviewed the administrative findings de novo, took new In Wong, the district 24 2 25 26 27 28 With respect to the scope of the record to be considered, a trial de novo is a trial not limited to the administrative record, in which a plaintiff may offer any relevant evidence available to support his case, whether or not it has previously been submitted to the agency. Kim v. United States, 121 F.3d 1269, 1272 (9th Cir. 1997). The burden is placed on the store owner to prove by a preponderance of evidence that the violations did not occur. Id. Once a violation is found by the reviewing court, then the review of the severity of the sanction imposed is made in light of the administrative record. Wong, 859 F.2d at 132. 4 1 evidence, and found by a preponderance of evidence that the 2 grocery clerks had violated the Food Stamp Act by selling non- 3 eligible items for food stamps, it was not the grocery’s policy 4 or practice to sell non-eligible items for food stamps, and 5 clerical personnel committed the violations through carelessness. 6 859 F.2d at 132. 7 court incorrectly reviewed de novo whether or not the store had a 8 practice of violations because the issue of store practice was 9 relevant only to the determination of sanctions and was defined The United States contended that the district 10 under the FNS guidelines for sanctions. 11 responded: Id. The court 12 We disagree. 13 Under the arbitrary and capricious standard, the court examines “the sanction imposed by the FNS in light of the administrative record to judge whether the agency properly applied the regulations [and] to determine whether the sanction is ‘unwarranted in law ... or without justification in fact’ (citation omitted).” Plaid Pantry, 799 F.2d at 563. Firm practice is essentially a question of fact that must be determined before a finding can be made as to whether the sanction imposed was without justification. As such, it is subject to de novo determination by the district court. 14 15 16 17 18 19 859 F.2d at 132. 20 21 Thus, application of the arbitrary and capricious standard 22 to penalty determinations is not necessarily inconsistent with 23 the de novo determination of factual issues so long as the facts, 24 once found, are then appropriately considered in the course of an 25 analysis of whether a penalty determination based on such facts 26 is arbitrary and capricious. 27 Inc., 799 F.2d 560, 565 (9th Cir. 1986) (where the parties agreed 28 upon a stipulated record for the trial), the Court considered the Again, in Plaid Pantry Stores, 5 1 sufficiency of the evidence and the administrative application of 2 the penalty regulations, and determined that the agency failed to 3 consider the plaintiff’s intent as regulations required and made 4 insufficient findings; thus, the sanction violated the service’s 5 own regulation and was unwarranted in law. 6 arbitrary and capricious. 7 F.2d 1358, 1363 (9th Cir. 1987), the court reviewed for clear 8 error the district court’s factual findings concerning whether 9 the sanction was the first one for the store and whether there Therefore, it was Finally, in Banh v. United States, 814 10 was a warning (items relating to sanctions), and it also reviewed 11 whether it was the market’s practice to accept stamps for 12 ineligible items, noting the path of analysis as including 13 whether the factual findings concerning practice were correct and 14 whether sanctions based thereon were arbitrary and capricious. 15 814 F.2d at 1362. 16 Plaintiffs contend that Kim v. United States, 121 F.3d 1269 17 (9th Cir. 1997), modified the standard set forth in Wong and 18 Plaid Pantry. 19 of provisions of the Act added in 1988 that gave the 20 administrators the discretion to choose between permanent 21 disqualification and a civil monetary penalty for trafficking, 22 but which permitted permanent disqualification of innocent owners 23 (i.e., owners who did not know that trafficking was occurring) if 24 they did not have an effective anti-trafficking policy in place 25 at the pertinent time. 26 analysis, the court referred to the standard of review: 27 // 28 / In Kim, the court determined the constitutionality In the course of the constitutional 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Any grocery store fined or disqualified under the Food Stamp Act may bring an action for judicial review challenging the penalty by filing a complaint against the United States in federal district court. 7 U.S.C. § 2023(13). The court will determine the validity of the penalty in a “trial de novo.” Id. § 2023(15); Wong v. United States, 859 F.2d 129, 132 (9th Cir.1988). A trial de novo is a trial which is not limited to the administrative record-the plaintiff “may offer any relevant evidence available to support his case, whether or not it has been previously submitted to the agency.” Redmond v. United States, 507 F.2d 1007, 1011-12 (5th Cir.1975). See also Sims v. United States Dep't of Agriculture Food & Nutrition Serv., 860 F.2d 858, 862 (8th Cir.1988) (“district court ‘must reach its own factual and legal conclusions ... and should not limit its consideration to matters previously appraised in the administrative proceedings' ”) (internal quotation marks omitted) (quoting Ibrahim v. United States, 834 F.2d 52, 53-54 (2d Cir.1987)). The burden is placed upon the store owner to prove by a preponderance of the evidence that the violations did not occur. Plaid Pantry Stores, Inc. v. United States, 799 F.2d 560, 563 (9th Cir.1986). See also Warren v. United States, 932 F.2d 582, 586 (6th Cir.1991) (citing Goodman v. United States, 518 F.2d 505, 507 (5th Cir.1975)). 15 Kim, 121 F.3d at 1271-72. 16 the owner’s contention that his procedural due process rights 17 were infringed in the course of the administrative proceeding, 18 the court returned to these authorities: 19 20 21 22 23 24 25 26 27 28 Later, in the context of considering Nor were Kim's procedural due process rights infringed. A trial de novo, in which the existence of a violation is examined afresh, and the parties are not limited in their arguments to the contents of the administrative record, satisfies the strictures of procedural due process. See TRM, 52 F.3d at 944 (“the provision of a de novo hearing in the district court adequately protects an aggrieved store owner's procedural due process rights”); Haskell v. United States Dep't of Agriculture, 930 F.2d 816, 820 (10th Cir.1991) (the lack of an evidentiary hearing at the administrative level is not a denial of due process where there is de novo review in the district court); Ibrahim, 834 F.2d at 54 (“trial de novo provision clearly afforded full procedural due process”); Broad Street Food Market, Inc. v. United States, 720 F.2d 217, 221 (1st Cir.1983) (due process satisfied by trial de novo on the finding of a violation); Redmond, 507 F.2d at 1011-12 (“By providing the aggrieved food store 7 1 2 3 with a new trial where the store may introduce evidence outside the administrative record, the statute also protects the rights and interests of the store against final adverse action without the opportunity for an adversary hearing.”). 4 Kim, 121 F.3d at 1274-75. 5 considered in combination with the court’s citation to Wong, 6 reflect that although the court may have used imprecise or overly 7 broad language in the first section, its reference to a de novo 8 consideration of penalty did not reflect any change in the 9 standard or scope of review that had been set forth in Wong. 10 Further, the authorities cited by the court in Kim concerning 11 standard of review were generally consistent with or approved a 12 bifurcated standard. 13 1007, 1011-12 (5th Cir. 1975) (proof discussed with respect to de 14 novo trial concerned whether or not the owner had allowed food 15 stamps to be used to pay for credit sales and to purchase 16 ineligible items); Sims v. U.S. Dept. of Agriculture Food & 17 Nutrition Service 860 F.2d 858 (8th Cir. 1988) (review of 18 disqualification for a practice of accepting food stamps for non- 19 food items pursuant to 7 C.F.R. § 278.6(d) and (e) was undertaken 20 using the arbitrary and capricious standard with consideration of 21 whether the agency proceeded correctly in calculating the ratio 22 of ineligible-to-eligible items (at 860-62), but the factual 23 issue of whether or not there was sufficient evidence to 24 demonstrate a practice of violating the Act was tried de novo and 25 reviewed for clear error (at 862-63); Ibrahim v. United States 26 through Dept. of Agriculture, 834 F.2d 52, 853 (2nd Cir. 1987) 27 (standard of review established by § 2023 was held to be de novo 28 and not substantial evidence, and the evidence considered related These portions of text, when See, Redmond v. United States, 507 F.2d 8 1 to whether the store had bought food stamps from a government 2 witness for cash); Warren v. United States, 932 F.2d 582, 586 3 (6th Cir. 1991) (de novo review concerned whether there was 4 evidence of an attempt to circumvent a period of disqualification 5 which, in turn, related to factual issues concerning whether the 6 applicant’s husband was a nominal owner and the intent in filing 7 the application); Goodman v. United States 518 F.2d 505 (5th Cir. 8 1975) (recognizing that judicial review encompassed de novo 9 review of both the findings of the violations (to be upheld 10 unless the store owner could prove, by a preponderance of the 11 evidence, that the agency’s determination is factually 12 incorrect), as well as the period of the sanction, a product of 13 discretionary judgment, which was to be reviewed to see if it was 14 arbitrary and capricious/unwarranted in law or without 15 justification in fact). 16 Plaintiffs argue that the amendment of 7 U.S.C. 17 § 2023(a)(15) in 19883 changed the standard of review. 18 Plaintiffs contend that by specifying that one type of review was 19 on the administrative record, Congress meant to assert that other 20 review should be completely de novo. 21 States, 962 F.Supp. 1225, 1228 (N.D.Cal. 1997), the court 22 considered, in connection with a Rule 56(f) motion concerning a 23 summary judgment proceeding, the plaintiff’s contention that he 24 should be allowed discovery into entrapment of employees; it was 25 disallowed because there was no showing of any facts suggesting 26 entrapment, not because there was any discussion or suggestion However, in Lopez v. United 27 3 28 In Public Law 100-435, § 603, (1988) the phrase “except that judicial review of determinations regarding claims made pursuant to section 16(c) shall be a review on the administrative record” was added to § 2023(a). 9 1 that it was improper to consider facts outside the administrative 2 record in connection with such an issue. 3 to the standard of review of the penalty, the court rejected an 4 argument that anything less than de novo review of the penalty 5 would itself be arbitrary and capricious, and stated the 6 following: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Further, with respect This court disagrees. The Food and Consumer Service's implementation of the Congressional directive does not rise to the level of being “arbitrary and capricious” as defined by the United States Supreme Court in the case on which the Ghattas court relied: The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962). In reviewing that explanation, we must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., [419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974) ]; Citizens to Preserve Overton Park v. Volpe, [401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971) ]. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). 23 24 25 26 27 28 The regulations here give store owners ten days to document already existing policies and mail the documentation. While it might be convenient for an owner busy running a store to have more than ten days, there is nothing in the nature of drafting or copying such documents that makes a ten day limit inherently unreasonable, nor therefore the imposition of that limit “a clear error of judgment.” If the regulation allowed only one day, presuming that all the required documentation would be extant and available for 10 1 immediate mailing, then one could conclude that the agency had “entirely failed to consider an important aspect of the problem.” As it is, the regulatory scheme is not arbitrary and capricious. The Ninth Circuit cases Wong and Banh are the appropriate precedent rather than Ghattas; this court reviews the sanction imposed by the agency under the arbitrary-andcapricious standard. See also Ali v. United States, 904 F.Supp. 915 (E.D.Wis.1995) (reviewing fact of the violation de novo but reviewing penalty under arbitrary-and-capricious standard); Kim v. United States, 903 F.Supp. 118 (D.D.C.1995); Commonwealth of Mass. v. United States, 788 F.Supp. 1267 (D.Mass.1992), aff'd, 984 F.2d 514 (1st Cir.), cert. denied, 510 U.S. 822, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993). 2 3 4 5 6 7 8 9 Lopez v. United States, 962 F.Supp. 1225, 1231 (N.D.Cal. 1997). 10 Although Lopez was decided before Kim, it appears accurately 11 to reflect the status of the law. 12 that the court intended to overrule or depart from the Wong 13 standard. 14 been applied. 15 1155 (9th Cir. 2000), although the main issues concerned the 16 validity of the underlying regulations and constitutional issues, 17 the court undertook review of the sanction of civil monetary 18 penalties imposed for trafficking in food stamps, and determined 19 that they were not arbitrary and capricious in the circumstances 20 of the case because each penalty was based on the store’s own 21 food stamps profits and, as applied, did not approach the 22 statutory maximum. 23 been employed after the amendment in question. 24 There is no indication in Kim Further, the Wong standard has relatively recently In Vasudeva v. United States of America, 214 F.3d 214 F.3d at 1160. Thus, the standard has In summary, it should be concluded that the cases set forth 25 a binding interpretation of the scope and standard of review. 26 /// 27 // 28 / 11 1 2 III. Scope of Discovery A. Trafficking and Validity of Penalty 3 Reference to the second amended complaint reveals that the 4 first two claims are based on Plaintiffs’ denial of trafficking 5 in food stamps within the meaning and intent of 7 C.F.R. § 271.2 6 because no criminal violation was proved or could be proved and, 7 alternatively, because any trafficking was provoked, instigated, 8 permitted, and caused by law enforcement officers who aided and 9 abetted the violations. 10 Because of the scope and standard of review, the relief 11 Defendant seeks is too broad. 12 trafficking will require discovery of matter pertinent to the 13 trafficking allegations. 14 administrator’s discretionary judgment concerning the severity of 15 the penalty imposed, which will proceed pursuant to the arbitrary 16 and capricious standard, may well necessitate de novo review of 17 some facts that underlie the penalty, just as in Wong, there was 18 a need to review and determine facts before it could be decided 19 whether or not the sanction imposed was without justification. 20 Review of the findings of However, even review of the The Court is mindful that the scope of any de novo 21 proceeding should not be allowed to swallow the established 22 standard for the review of the administrator’s discretionary 23 judgment concerning penalty. 24 that would necessitate discovery of additional evidence in the 25 course of reviewing penalty determinations under the arbitrary 26 and capricious standard, it is unclear exactly what the factual 27 issues of this sort are within the framework of the pleadings in 28 this particular case. With respect to the factual issues It would depend on the pertinent 12 1 regulations and the evidence. 2 and determined. 3 the issue of trafficking would be legally incorrect. 4 permitting Plaintiffs to have unrestricted discovery into all 5 matter relating to penalty would be incorrect. 6 7 This has yet to be fully explored However, it is clear that limiting discovery to Likewise, B. Other Issues The Court notes that the statute providing for review 8 indicates that the trial de novo pertains to the court’s 9 determination of the validity of the questioned administrative 10 11 action in issue. 7 U.S.C. § 2023(a)(15). The second amended complaint contains other claims or issues 12 relating to the validity of the administrative action besides 13 those issues related to findings of trafficking and penalties. 14 It is logical to anticipate that Plaintiffs will want to conduct 15 some discovery in connection with these claims. 16 In the third claim, Plaintiffs argue that, based on a 17 stipulated consent judgment in an earlier proceeding described as 18 an enforcement proceeding, the United States is estopped or, 19 alternatively, precluded by principles of res judicata, from 20 either permanent disqualification or imposition of a prospective 21 transfer penalty upon the sale of transfer of either business; 22 alternatively, Plaintiffs assert that the same estoppel arises 23 from agents of the United States (apparently through the person 24 of former Assistant United States Attorney Kristi Kapetan, 25 allegedly then working in the forfeiture division) colluding with 26 Plaintiff’s then-counsel (Peter Kapetan, husband of Kristi 27 Kapetan) to lull Plaintiffs into a false belief that they had 28 settled all further liability to the United States in connection 13 1 with any enforcement action arising out of the allegedly unlawful 2 redemption of food stamps at their businesses. 3 Although these issues do not relate solely to trafficking, 4 they are within the scope of the pleadings before the Court, and 5 do not implicate the discretion of the agency concerning penalty, 6 but rather go to legal or equitable considerations regarding the 7 fairness and validity of the administrative action. 8 has not established that review of these issues is limited to the 9 administrative record such that discovery should be foreclosed. Defendant 10 Further, in the fourth and fifth claims, Plaintiffs 11 challenge 7 C.F.R. § 278.6 and, specifically, § 278.6(i), the 12 regulation which provides for the transfer penalty, as ultra 13 vires, and contend that 7 U.S.C. § 2021(e)(1), the provision 14 providing for the penalty, is unconstitutional as a taking of 15 property without just compensation in violation of the Fifth 16 Amendment of the Constitution, a denial of substantive due 17 process and procedural due process under the Fifth Amendment, and 18 an excessive fine within the meaning of the Eighth Amendment. 19 (SAC ¶¶ 73-77.) 20 procedure of having an administrative hearing without the 21 opportunity for affected business owners to testify orally or for 22 cross-examination of Defendant’s agents or employees making 23 statements about the existence of trafficking violations, a 24 process that is authorized by 7 C.F.R. § 279, is, as to 25 Plaintiffs, who have not had an opportunity to testify directly 26 in the underlying administrative proceeding, a denial of 27 procedural due process under the Fifth Amendment. 28 78-79.) In the sixth claim, it is alleged that the 14 (SAC ¶¶ 46, 1 These constitutional issues are within the scope of the 2 pleadings. 3 these issues is limited to the administrative record such that 4 discovery should be foreclosed. 5 suggestion that the scope of review in this action may bear some 6 relationship to the requirements of procedural due process. Defendant has not established that consideration of Further, the Court notes the 7 IV. Disposition 8 Defendant has established that Plaintiffs are not entitled 9 to unlimited discovery with respect to the administrative penalty 10 imposed, although some discovery is granted with respect to some 11 facts upon which the penalty was based in connection with review 12 of the penalty determination under the arbitrary and capricious 13 standard. 14 for de novo review should be limited solely to the finding of 15 trafficking. 16 17 However, Defendant has not established that discovery Accordingly, Defendant’s motion to limit discovery to the issue of the finding of trafficking is DENIED. 18 V. Directions to the Parties concerning Discovery 19 In the briefing and at argument on the motion, the parties 20 referred to discovery having been sought and having been the 21 subject of agreement in this action, but the parties agreed that 22 the propriety of any particular discovery request or proceeding 23 was not before the Court on this motion; rather, the only issue 24 before the Court was whether or not the scope of discovery should 25 be limited as sought by Defendant. 26 Therefore, no decision is made with respect to the ripeness 27 or justicability of any claim in the present pleadings concerning 28 a transfer penalty, or the propriety of any particular 15 1 deposition. 2 tenable for Defendant to continue to attempt to limit depositions 3 to persons who have personal knowledge of trafficking. However, in view of the present ruling, it is not 4 Further, the Court desires the swift progress of the case 5 through the discovery phase so that the hearing of Plaintiff’s 6 previously filed motion for summary adjudication may be 7 completed, other dispositive motions may be considered in due 8 course but without necessary delay, and all necessary proceedings 9 on the merits may be completed. 10 To that end, counsel are DIRECTED to meet and confer 11 concerning a proposed amended discovery schedule, whether 12 discovery should occur in phases, and the scheduling of the case, 13 including whether the previously suggested date of April 15, 14 2010, for filing dispositive motions (Jt. Stmt. re: Discovery 15 Issues & Sched., filed July 1, 2009, Doc. 107, p. 5) remains 16 tenable, and file an Amended Joint Statement Regarding Discovery 17 Issues And Scheduling ( see Doc. 107) by October 5, 2009. 18 Counsel are DIRECTED to participate in a scheduling 19 conference on October 15, 2009 at 10:30 a.m. before Judge Snyder. 20 21 22 IT IS SO ORDERED. 23 Dated: icido3 September 15, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 16
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
