Excluding FRE 702 Expert Opinion But Including FRE 706 Expert Opinion

In an Administrative Procedures Act review of whether an agency's actions had been arbitrary and capricious, the Ninth Circuit concludes that the district court should not have expanded the agency record to include affidavits submitted by the parties' experts regarding the agency's Biological Opinion (“BiOp”) concerning the preservation of the endangered delta smelt species by reducing the diversion of water from north to south California, in San Luis & Delta-Mendota Water Authority v. Jewell, __ F.3d __ (9th Cir. March 13, 2014) (Nos. 11-16623, 11-16662, 11-15871, 11-16617, 11-16624, 11-16621, 11-16660)

The Ninth Circuit considered a case that presents a curious twist on a court's use of expert witnesses. In assessing what it described as the trial court having "overstepped its bounds," the circuit stressed the significance of the agency's record as the basis for review. The circuit concluded that the trial court should not have added certain party-proffered expert opinion evidence (apparently consistent with FRE 702) as part of its record. On the other hand, the circuit considered contributions by the FRE 706 court-appointed experts as appropriate to the record, reasoning that these witnesses aided the court's understanding of the case record. What accounts for this different treatment? Does this case present a new view of the role to be played by party-experts as distinguished from court-appointed experts? A more likely explanation for the differing treatment was that it was a result of the circumscribed nature of federal court review of agency actions under the Administrative Procedures Act; it is unlikely the case presents a new approach to the use of court-appointed or party-designated experts in the administrative review process.

Significance Of The Agency Record

The case, an Administrative Procedures Act suit, involved whether a federal agency's recommendations had been arbitrary and capricious. The Ninth Circuit found that the district court should not have overturned the agency's Biological Opinion (“BiOp”), which recommended that the state reduce diversion of water from northern to southern California. According to the agency's assessment, this step would ameliorate the threat of decreasing delta smelt populations, a species protected by the Endangered Species Act.

The circuit's consideration of whether the trial court was correct that the agency had acted in an arbitrary and capricious manner was a limited one. The circuit explained that it, as well as the trial court, was restricted to looking at "'the administrative record already in existence." The courts should not be acting upon "'some new record made initially in the reviewing court.'" (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) ("...if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course ... is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry....")) San Luis & Delta-Mendota Water Authority, __ F.3d at __.

The key was that, except for some narrowly defined exceptions, a reviewing court should confine its assessment to the administrative record in existence at the time of the agency's action. The court's task was to assess whether there was "substantial evidence in th[at] record." It should not attempt to "'compensate for the agency's dereliction by undertaking its own inquiry into the merits.'" San Luis & Delta-Mendota Water Authority, __ F.3d at __ (quoting Asarco Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980)). Should the agency record be insufficient for this, the court "should remand to the agency for further proceedings.'" (quoting INS v. Ventura, 537 U.S. 12, 16 (2002))

Did FRE 702 Experts Improperly Expand The Record When FRE 706 Experts Did Not?

The circuit concluded that the trial court "failed to observe these rules" which limited the review by the courts. The example of this discussed by the circuit was the trial court's supplementation of the record by allowing the parties to provide supplemental views on factors in the agency's report. The circuit concluded that these supplemental expert opinions, offered after the agency's inquiry, should not be part of the record on review. However, on the other hand, opinions offered by the court-appointed experts received different treatment:

First, the district court appointed four experts to aid it in understanding the technical and scientific aspects of the BiOp. These experts were appointed consistent with Federal Rule of Evidence 706. Having read the BiOp, we are sympathetic to the district court's need for a scientific interpreter. No party has objected on appeal to the district court's appointments, and we can see no reasonable objection to the use of experts to explain the highly technical material in the BiOp.

San Luis & Delta-Mendota Water, __ F.3d at __ (citing FRE 706) (footnote excluded))

From the information provided by the circuit, it was unclear the procedure used by the court in designating experts. For example, did the court act with the agreement of the parties in appointment of court experts or did the court act on its own accord, as FRE 706 would allow. While under FRE 706 the court could receive recommendations from the parties as to specific individuals to serve as court-appointed experts, it was not clear whether the experts ultimately selected were based on any recommendations made by the parties. Although the court apparently made more use of the parties' experts in the case, presumptively these witnesses had previously been subject to Daubert gatekeeping. In addition to its own experts under FRE 706 , the court "permitted substantial declarations from experts selected (but not agreed to) by the parties. In its written decision, the district court relied extensively on opinions and evidence submitted by its own experts and by the parties' experts. " San Luis & Delta-Mendota Water, __ F.3d at __

Use Of Parties' Experts

The circuit noted a number of errors in the court's use of the parties' experts. Because the court "relied extensively on the declarations of the parties' experts-as-advocates as the basis for rejecting the BiOp," Part of the difficulty was redundant information:

Over the vigorous objection of the appellants, the court admitted multiple declarations from multiple experts hired by the appellees, even though the party-appointed experts addressed many of the same issues being addressed by the court-appointed experts. By the government's count—which we have not sought to verify, although we have examined the declarations in the record—the district court admitted more than forty expert declarations from the appellees; once the court denied the appellant's motion to exclude the declarations, the appellants submitted their own experts' declarations. Yet, we cannot see what the parties' experts added that the court-appointed experts could not have reasonably provided to the district court.

San Luis & Delta-Mendota Water, __ F.3d at __ (emphasis added) (citing Animal Def. Council v. Hodel, 840 F.2d 1432, 1437 (9th Cir. 1988) (plaintiff failed to show why the district court needed to go outside the administrative record)).

Once the trial court took the step of allowing more party expert witness evidence in its review of the agency record, the result was problematic because:

  • Battle Of Experts: This "create[d] a battle of the experts. Moreover, it gave the proceedings in the district court the appearance that the administrative record was open and that the proceedings were a forum for debating the merits of the BiOp. San Luis & Delta-Mendota Water, __ F.3d at __ (citing Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1245 (9th Cir. 2001) (“Considering evidence outside the record would render the extraordinarily complex consultation process ... meaningless.”)).
  • Post-Hoc Rationalizations: The process also skirted the rule that the reviewing court would "not allow the agency to supply post-hoc rationalizations for its actions" which were under review. In this case, this seemed to happen in the form of “post-decision information" that the trial court considered. As with limits on the agency, the trial court can not decide the case with "a new rationalization either for sustaining or attacking an agency's decision.” San Luis & Delta-Mendota Water, __ F.3d at __ (citing Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996))

Different Reception Of FRE 702 And FRE 706 Expert Opinion

The circuit noted reasons for treating the testimony by the parties' experts different from the court-appointed experts:

  • Parties' Experts: The trial court "relied extensively on the declarations of the parties' experts-as-advocates as the basis for rejecting the BiOp." In assessing the agency record this posed a difficulty in the review because as a practical matter "the district court pits the experts against each other and resolves their contrary positions as a matter of scientific fact. In effect, the district court opened the BiOp [finding by the agency] to a post-hoc notice-and-comment proceeding involving the parties' experts, and then judged the BiOp against the comments received." San Luis & Delta-Mendota Water, __ F.3d at __ (citations omitted). In terms of what was properly under review by the court the circuit "cannot see what the parties' experts added that the court-appointed experts could not have reasonably provided to the district court." San Luis & Delta-Mendota Water, __ F.3d at __ .
  • Court-Appointed Experts: The role of these experts was to "advise the court on the complex technical and scientific matters" involved in reviewing the agency record. It was a need that the circuit was "sympathetic to" because the "need for a scientific interpreter" of the record was manifest. In terms of using this expert evidence as part of the record on review, but not that provided by the parties in their supplementary submissions to the district court, the circuit concluded there were few problems as "[n]o party ... objected on appeal to the district court's appointments, and we can see no reasonable objection to the use of experts to explain the highly technical material in the BiOp." San Luis & Delta-Mendota Water, __ F.3d at __ .

Conclusion

San Luis & Delta-Mendota Water Authority v. Jewell presents a factual situation that may not often occur. The circuit's differential treatment of evidence submitted by the parties' experts from the court-appointed experts was a result of the peculiar form of appellate review of the trial court's decision. This was a "de novo" review in which the circuit "can confine our own scope of review to the administrative record, plus that evidence that satisfies" the criterion of being inherent in that record. As a result, the court reviewed the case considering the "BiOp and any other evidence in the record submitted by the parties that the FWS considered in making its decision. We will also consider the testimony of the four experts the district court appointed pursuant to Rule 706, as to whom there is no objection." San Luis & Delta-Mendota Water, __ F.3d at __ (citing Dow AgroSciences v. Nat'l Marine Fisheries Serv., 707 F.3d 462, 469 (4th Cir. 2013) (confining review to the administrative record and disregarding an affidavit submitted to the district court)). At first glance, San Luis & Delta-Mendota Water Authority v. Jewell appears to stand as proof of the fear of many trial attorneys that court appointment of its own expert diminishes the parties' ability to present their case. The expert, who is neither one's own nor one's opponent, can be like a wild card. What the case demonstrates is that it is a wild card that is not often encountered.

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