United States of America v. City of San Diego

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
CITY OF SAN DIEGO, et al.,
Defendants.
__________________________________
AND RELATED CROSS-ACTION.
Case No.: 23cv0541-LL-VET
ORDER GRANTING MOTION TO
LIMIT JUDICIAL REVIEW TO THE
ADMINISTRATIVE RECORD
[ECF No. 156]
Before the Court is Plaintiff United States of America’s (“United States”) Motion to
Limit Judicial Review to the Administrative Record. ECF No. 156-1 (“Mot.”). Defendant
City of San Diego (“City”) filed a response in opposition. ECF No. 167 (“Opp”). For the
reasons below, the Court GRANTS the United States’ Motion.
I. 	DISCUSSION
Under the Comprehensive Environmental Response, Compensation, and Liability
Act (“CERCLA”), judicial review is generally limited to the administrative record as it
existed at the time of the agency action. See 42 U.S.C. § 9613(j)(1) (“judicial review of
any issues concerning the adequacy of any response action taken or ordered by the
President shall be limited to the administrative record.”) Accordingly, “as a general rule,
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information created or discovered after an agency has made a decision will not be
considered.” United States v. Iron Mountain Mines, Inc., 987 F. Supp. 1250, 1260 (E.D.
Cal. 1997). “This includes documents, deposition testimony, and expert opinions generated
during the course of litigation.” Iron Mountain, 987 F. Supp. at 1260; see also Tri-Valley
CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1131 (9th Cir. 2012) (affirming district
court’s denial of motion to supplement the administrative record with a report that was
completed over two years after the commencement of the litigation); United States v. Wash.
Dept. of Transp., 450 F. Supp. 2d 1207, 1213–14 (W.D. Wash. 2006) (limiting review of
EPA’s selection of response actions to the administrative record and granting a protective
order prohibiting discovery of any issues that go beyond the administrative record).
However, courts may consider supplemental materials outside of the administrative
record under CERCLA when (1) the agency has failed to explain its actions, making
judicial review of whether the agency has considered all relevant factors impossible; (2)
the agency has 	relied on documents or materials 	not 	included in 	the record; (3)
supplementation is necessary to explain technical terms or complex subject matter involved
in the agency action; or (4) a strong showing of agency bad faith is made. 42 U.S.C. §
9613(j)(1); see Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir.
2010). 	“The 	party 	challenging 	the 	adequacy 	of 	the administrative record or 	the
administrative process has the burden of showing that supplementation is warranted.” Iron
Mountain, 987 F. Supp. at 1260. Indeed, “an agency’s statement of what is in the record is
subject to a presumption of regularity.” Goffney v. Becerra, 995 F.3d 737, 748 (9th Cir.
2021) 	Thus, 	courts 	must 	“presume 	that 	an 	‘agency 	properly 	designated
the [a]dministrative [r]ecord absent clear evidence to the contrary.’” Id. (citation omitted).
The United States seeks to limit judicial review to the administrative record “(1) for
any issues concerning the adequacy of the remediation, and (2) for any review of the
Navy’s final agency action of selecting a remedy.” Mot. at 2. The United States also seeks
to exclude City’s expert witnesses, Dr. Michael Trapp and Mr. Stephen Johnson because
their purported testimonies concern the adequacy of Navy’s remediation and the Navy’s
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selection of a remedy. Mot. at 3.
The City claims that the limitation of review to the administrative record does not
apply here because “this is a case that sounds in contract, not statute.” Opp. at 6.
Specifically, the City claims that its “objections and opposition derive from the United
States’ failure to satisfy contractual conditions precedent to conveyances and the Navy’s
failure to perform its work consistent with the National Contingency Plan.” Id. The Court
is not persuaded.
First, there can be no doubt that § 9613(j)(1) applies to the parties’ causes of action
arising directly under CERCLA as both the United States and the City assert causes of
action under CERCLA (see ECF Nos. 25, 1101). Second, “any review of the Navy’s final
agency action of selecting a remedy” is not only covered by § 9613(j)(1) as it directly
concerns “the adequacy of any response action taken” but is also covered by the
Administrative Procedure Act (“APA”) as it involves a “final agency action” (5 U.S.C. §
704). See San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 992 (9th Cir.
2014) (“In general, a court reviewing agency action under the APA must limit its review
to the administrative record.”).
Thus, it all comes down to whether 42 U.S.C. § 9613(j) applies to the only non-
CERCLA claim in this action: the United States’ claim for breach of contract under the
parties’ Memorandum of Agreement (“MOA”).2 As discussed in the Court’s Order
1 The United States seeks two claims under CERCLA: (1) cost recovery under § 107 of
CERCLA and (2) declaratory judgment under § 113(g)(2). ECF No. 25. After this Court’s
Order dismissing the City’s counterclaims for recoupment and declaratory and injunctive
relief for lack of subject matter jurisdiction (ECF No.180), the City’s remaining claims are:
(1) contribution under § 113(f)(1) of CERCLA; and (2) declaratory relief under §
113(g)(2). ECF No. 110.
2 The City seems to think that it has an active cause of action for breach of contract: “both
the City and the United States have active causes of action for breach of contract” Opp. at
5. However, the City omitted the breach-of-contract cause of action when it amended its
counterclaim on November 21, 2024. See ECF No. 109. Thus, its breach-of-contract claim
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overruling City’s objections to Magistrate Judge’s Order (ECF No. 219), this Court is not
persuaded by the City’s claim that it is not challenging the adequacy of the remediation. Its
claimed “central issue” that the “United States’ fail[ed] to satisfy contractual conditions
precedent” to the parties’ MOA (Opp. at 5) directly goes to the “adequacy of any response
action taken” by the Navy. The Court is equally unpersuaded by the City’s argument about
the perfluorinated compounds (“PFAS”). The City claims that PFAS is “a CERCLA
hazardous substance” that should have been included in the clean-up. Opp. at 9–10.
Whether PFAS should or should not have been included in the clean-up directly goes to
the review of the Navy’s final agency action of selecting a remedy. Lastly, the City fails to
identify any of the four narrowly construed circumstances outlined above that would justify
looking outside the administrative record.
As for the City’s experts, the City does not dispute that Dr. Michael Trapp and Mr.
Stephen Johnson will testify as to the adequacy of Navy’s remediation and the Navy’s
selection of a remedy. However, “‘[t]echnical testimony . . . elicited for the purpose of
determining the scientific merit of the [agency’s] decision,’ is not generally admissible.”
Kunaknana v. Clark, 742 F.2d 1145, 1152 (9th Cir. 1984) (affirming district court’s
exclusion of expert witness affidavits that were “prepared for the purpose of contesting the
scientific merit of the agency’s analysis”) (citation and internal quotations omitted);
Asarco, Inc. v. U.S. Env’t Prot. Agency, 616 F.2d 1153, 1160–61 (9th Cir. 1980) (finding
error in district court’s admission of expert testimony to determine the scientific merit of
EPA’s decision). Therefore, Dr. Trapp and Mr. Johnson’s testimonies shall be excluded as
they constitute post-decisional material outside the administrative record.
is waived. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (“a plaintiff
waives all claims alleged in a dismissed complaint which are not realleged in an amended
complaint”); Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“As a general rule,
when a plaintiff files an amended complaint, ‘[t]he amended complaint super[s]edes the
original, the latter being treated thereafter as non-existent.’” (citation omitted)).
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Therefore, this Court grants the United States’ Motion to limit judicial review to the
administrative record (1) for any issues concerning the adequacy of the remediation, and
(2) for any review of the Navy’s final agency action of selecting a remedy.
IT IS SO ORDERED.
Dated: March 13, 2026
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