                             NOT FOR PUBLICATION                             FILED
                      UNITED STATES COURT OF APPEALS                         OCT 25 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 MANE SHAH,                                         No.    15-15232

                   Plaintiff-Appellant,             D.C. No.
                                                    2:14-cv-00624-GMN-NJK
   v.

 DEPARTMENT OF JUSTICE,                             MEMORANDUM*

                   Defendant-Appellee.

                     Appeal from the United States District Court
                              for the District of Nevada
                      Gloria M. Navarro, Chief Judge, Presiding

                      Argued and Submitted December 16, 2016
                              San Francisco, California

Before: Michael Daly Hawkins, Marsha S. Berzon, and Mary H. Murguia, Circuit
Judges.

        In this case, Mane Shah appeals the district court’s denial of his civil suit to

compel the DOJ to provide him certain data to use in his defense in the criminal

proceedings against him. Shah, accused of committing a criminal offense, agreed

to take a polygraph test, which he failed. After Shah received a one-page report on


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the polygraph results, Shah’s lawyers requested from the FBI the charts, graphs,

and raw data associated with the examination. The U.S. Attorney for the District

of Nevada Daniel Bogden (“USA Bogden”) rejected Shah’s request.

 I.   APA Challenge

      Shah argues that DOJ violated the Administrative Procedure Act (“APA”), 5

U.S.C. § 701 et seq., by arbitrarily and capriciously withholding the polygraph data

and asserting the law enforcement privilege.1 We review de novo the district

court’s grant of summary judgment in favor of DOJ. Gardner v. U.S. Bureau of

Land Mgmt., 638 F.3d 1217, 1220 (9th Cir. 2011).


      1
        We note that Shah does not challenge the existence of a law enforcement
privilege that covers law enforcement techniques and procedures. Though several
other circuits have adopted such a privilege—see, e.g., Commonwealth of Puerto
Rico v. United States, 490 F.3d 50, 64 (1st Cir. 2007), cert denied 552 U.S. 1295
(2008) (recognizing a qualified privilege for law enforcement techniques and
procedures); In re Dep’t of Investigation of the City of N.Y., 856 F.2d 481, 483–84
(2d Cir. 1988); and Black v. Sheraton Corp. of America, 564 F.2d 531, 541–42,
546–47 (D.C. Cir. 1977)—the U.S. Supreme Court and the Ninth Circuit have yet
to recognize or reject a “law enforcement privilege.” Given that Shah does not
argue that DOJ’s assertion of the law enforcement privilege was “not in
accordance with law,” 5 U.S.C. § 706(2)(A), we assume without deciding that the
privilege exists and covers raw polygraph data. We therefore confine our opinion
to analyzing Shah’s argument that DOJ arbitrarily and capriciously asserted the
law enforcement privilege. See In re Mercury Interactive Corp. Sec. Litig., 618
F.3d 988, 992 (9th Cir. 2010) (stating that “an issue will generally be deemed
waived on appeal if the argument was not raised sufficiently for the trial court to
rule on it” (citation and internal quotation marks omitted)).


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      In the official decision letter denying Shah’s request, USA Bogden points to

the specific materials he relied on in making his determination, including a

consultation with the FBI and factors outlined in DOJ’s Touhy regulations.2 USA

Bogden concluded that releasing the requested information was inappropriate

because it would have strong negative implications for FBI’s law enforcement

practices and the materials are “privileged law enforcement records which cannot

be disclosed without waiving the law enforcement privilege.” We cannot say that

DOJ’s denial is arbitrary and capricious where it provided a plausible reason for its

viewpoint based on agency expertise. See Arizona ex rel. Darwin v. U.S. E.P.A.,

815 F.3d 519, 530 (9th Cir. 2016) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc.

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); see also Ranchers

Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric.,

499 F.3d 1108, 1115 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)).

      Despite Shah’s offer to review the materials confidentially, DOJ’s concern

regarding waiver of the law enforcement privilege is not unfounded given that our

      2
        Touhy regulations are promulgated by DOJ pursuant to 5 U.S.C. § 301.
Among other things, Touhy regulations set forth the procedures by which DOJ
responds to discovery requests in litigation to which the United States is not a
party. In re Boeh, 25 F.3d 761, 763–64 (9th Cir. 1994); see also United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951).

                                          3
court has held that voluntary disclosure in the context of some privileges can

constitute waiver. See In re Pac. Pictures Corp., 679 F.3d 1121, 1126–27 (9th Cir.

2012) (concluding that in the attorney-client privilege context “voluntarily

disclosing privileged documents to third parties will generally destroy the

privilege”).3 In short, DOJ provided a “satisfactory explanation for its action

including a rational connection between the facts found and the choice made.” J &

G Sales Ltd. v. Truscott, 473 F.3d 1043, 1051 (9th Cir. 2007) (quoting Motor

Vehicle Mfrs., 463 U.S. at 43). Accordingly, DOJ’s denial of Shah’s request for

the underlying polygraph data did not violate the APA.

II.   Expansion of the Record

      A district court’s decision regarding whether to supplement an

administrative record is reviewed for abuse of discretion. Midwater Trawlers

Coop. v. Dep’t of Commerce, 393 F.3d 994, 1002 (9th Cir. 2004). Here, the

district court declined to expand the administrative record because it found Shah

provided no evidence demonstrating DOJ’s bad faith. See Animal Def. Council v.

Hodel, 840 F.2d 1432, 1437 (9th Cir. 1988), amended, 867 F.2d 1244 (9th Cir.

      3
        Shah has not argued here that the third-party disclosure doctrine does not
apply or applies differently to the law enforcement privilege than to the attorney-
client or other relational privileges.

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1989) (“Courts may inquire outside the agency record when plaintiffs make a

showing of agency bad faith.”). We find there was no valid ground to expand the

administrative record, and the district court did not abuse its discretion in denying

Shah’s request to expand the record. See Midwater Trawlers, 393 F.3d at 1002.

III.   Brady Challenge

       Shah also argues that the district court erred by holding that DOJ was not

required to release the polygraph materials under Brady v. Maryland, 373 U.S. 83

(1963), and Nevada state evidentiary rules. Even assuming that Brady applies in a

civil context and that DOJ has Brady obligations in this case, the requested

materials do not qualify as exculpatory materials that must be released to Shah.

See United States v. Price, 566 F.3d 900, 907 (9th Cir. 2009). The materials would

not be favorable or exculpatory to Shah because he failed the polygraph

examination. See id. Moreover, because under Nevada state law the polygraph

results cannot be admitted at trial without Shah’s consent, they are not material to

his case and not prejudicial. See Smith v. Baldwin, 510 F.3d 1127, 1148 (9th Cir.

2007) (en banc) (“Prejudice ensues if the evidence that is withheld is considered

‘material.’”); Jackson v. State, 997 P.2d 121, 122 (Nev. 2000). Accordingly,

DOJ’s failure to release the materials did not constitute a Brady violation. Shah

                                          5
did receive a report of the polygraph examination, which is all that is required

under Nevada evidentiary rules. See Nev. Rev. Stat. § 174.235(1)(a)–(b).

      We therefore conclude that DOJ did not violate the APA, the district court

did not abuse its discretion in refusing to expand the administrative record, and the

requested polygraph data were not Brady materials. We note that our conclusion

should have no bearing whatsoever on the state court criminal proceedings.

      AFFIRMED.




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