Ctr. for Food Safety v. Vilsack, Case No. 15-cv-01590-HSG (KAW)

• Decision Date: 03 May 2017
• Docket Number: Case No. 15-cv-01590-HSG (KAW)
• Court: U.S. District Court — Northern District of California
• Parties: CENTER FOR FOOD SAFETY, et al., Plaintiffs, v. TOM VILSACK, et al., Defendants.

CENTER FOR FOOD SAFETY, et al., Plaintiffs, v. TOM VILSACK, et al., Defendants.

Case No. 15-cv-01590-HSG (KAW)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

May 3, 2017

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL COMPLETION OF THE ADMINISTRATIVE RECORD, OR IN THE ALTERNATIVE, FOR LEAVE TO CONDUCT LIMITED DISCOVERY

Re: Dkt. No. 71

In this Administrative Procedure Act ("APA") case, Plaintiffs have filed a motion to complete the administrative record or, in the alternative, for leave to conduct limited discovery. (Plfs.' Mot., Dkt. No. 71.) The Court deems the matter suitable for disposition without hearing pursuant to Civil Local Rule 7-1(b). Having considered the papers filed by the parties and the relevant legal authority, the Court GRANTS IN PART and DENIES IN PART the motion to compel completion of the administrative record.

I. BACKGROUND¹

The "Organic Foods Production Act" ("OFPA") was passed to establish national standards for the marketing of organic products, assure consumers that products met consistent standards, and facilitate interstate commerce in organic foods. (FAC ¶ 58.) The OFPA established three baseline standards that a product must satisfy to be sold or labeled as organic. (FAC ¶ 59.) One of these standards requires that organic agricultural products be "'produced and handled without the use of synthetic chemicals, except as otherwise provided in this chapter.'" (Id. (quoting 7 U.S.C. § 6504(1).) The primary exception to this standard is found in the "National List." (FAC ¶60.) If a substance undergoes National Organic Standards Board ("NOSB") review, and is then approved for addition to the National List, it can be used in organic production even though it is inherently not organic. (Id.) The OFPA places a five-year time limit on the exception granted to substances placed on the National List; this provision is subtitled, "Sunset provision." (FAC ¶ 70 (citing 7 U.S.C. § 6517(e).) Thus, after five years, a substance is no longer exempted unless the NOSB reviews the substance and the Secretary of Agriculture renews the substance's placement on the National List. (FAC ¶ 71.)

On September 16, 2013, Defendants published the "National Organic Program--Sunset Process" ("Sunset Notice") in the Federal Register, "impos[ing] new, mandatory standards and Sunset Review procedures." (FAC ¶ 88.) Plaintiffs assert that the Sunset Notice did not provide for a public notice and comment period, thus violating the APA. (FAC ¶¶ 99, 106, 122.) Based on this alleged violation, Plaintiffs brought the instant suit against Secretary of Agriculture Tom Vilsack, Administrator Anne Alonzo, and Deputy Administrator Miles McEvoy, asserting violations of the APA and the OFPA. (FAC ¶¶ 122, 133.)

On December 5, 2016, Defendants lodged the Administrative Record ("AR"). (Dkt. No. 67.) The AR included the following certification:

I, Thomas J. Vilsack, Secretary of the United States Department of Agriculture, do hereby certify that the annexed copy, or each of the specified number of annexed copies, is a true, correct and compared copy of a document in my official custody as hereinafter described[.]

(Dkt. No. 67-1.)

Starting in December 2016, Plaintiffs' counsel contacted Defendants' counsel regarding the completeness of the AR. (Zee Decl., Exh. A, Dkt. No. 74-2.) On January 18, 2017, Plaintiffs' counsel identified seven extra-record documents that they believed should be added to the AR. (Id. at 8.) On January 25, 2017, Defendants' counsel responded that the United States Department of Agriculture ("USDA") was considering the identified documents "as potential supplements to the administrative record," and asked for additional information on the NOSB meeting transcripts that Plaintiffs wanted included. (Id. at 5.) Plaintiffs' counsel responded that the meetings involved substantive discussions on the sunset review process, and that several documents included in therecord were in response to the NOSB meetings that Plaintiffs wanted to add. (Id. at 4.) On January 30, 2017, Defendants' counsel informed Plaintiffs' counsel that the USDA would be adding eleven documents to the AR, which included the seven documents identified by Plaintiffs' counsel and four documents identified by the agency, "on [the] condition that Plaintiffs agree not to litigate the supplementation issue." (Id. at 3-4.) Plaintiffs' counsel responded that they agreed "not to supplement the existing [AR] with any additional documents," with the exception of documents obtained by Plaintiffs if they prevailed on the instant motion. (Id. at 2.) On February 1, 2017, Defendants filed a "Notice of Lodging of Addition to the Administrative Record," adding the eleven documents. (Dkt. No. 70.)

Pursuant to the parties' stipulation, on February 1, 2017, Plaintiffs filed the instant motion to compel completion of the administrative record, or in the alternative, for leave to conduct limited discovery. On February 24, 2017, Defendants filed their opposition. (Defs.' Opp'n, Dkt. No. 74.) On March 10, 2017, Plaintiffs filed their reply. (Plfs.' Reply, Dkt. No. 76.)

II. LEGAL STANDARD

When reviewing agency action under the APA, the court "will reverse the agency action only if the action is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law." Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2004) (citing 5 U.S.C. § 706(2); footnote omitted). "An agency's action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, or if the agency's decision is contrary to the governing law." Id. (citations omitted). "Although [the court's] inquiry must be thorough, the standard of review is highly deferential; the agency's decision is 'entitled to a presumption of regularity,' and [the court] may not substitute [its] judgment for that of the agency." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014).

In considering a challenge, "courts reviewing an agency decision are limited to the administrative record." Lands Council, 395 F.3d at 1029. Courts must, however, "review the whole [administrative] record or those parts . . . cited by a party . . . ." 5 U.S.C. § 706. "Thewhole administrative record, however, is not necessarily those documents that the agency has compiled and submitted as the administrative record. The whole administrative record, therefore, consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position." Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (internal citations and quotations omitted).

"An agency's designation and certification of the administrative record is treated like other established administrative procedures, and thus entitled to a presumption of administrative regularity." McCrary v. Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007) (citations omitted). For this reason, "in the absence of clear evidence to the contrary, courts presume that public officers have properly discharged their official duties." Id. (citations omitted).

In limited circumstances, however, the record may be supplemented, i.e., "(1) if admission is necessary to determine 'whether the agency has considered all relevant factors and has explained its decision,' (2) if 'the agency has relied on documents not in the record,' (3) 'when supplementing the record is necessary to explain technical terms or complex subject matter,' or (4) 'when plaintiffs make a showing of agency bad faith.'" Lands Council, 395 F.3d at 1029 (citation omitted).

"These limited exceptions operate to identify and plug holes in the administrative record," and "are narrowly construed and applied" to ensure "that the exception does not undermine the general rule." Id. (citations omitted). "Were the federal courts routinely or liberally to admit new evidence when reviewing agency decisions, it would be obvious that the federal courts would be proceeding, in effect, de novo rather than with the proper deference to agency processes, expertise, and decision-making." Id.

To meet the clear evidence standard, a plaintiff must (1) "identify reasonable, non-speculative grounds for the belief that the documents were considered by the agency and not included in the record," and (2) "identify the materials allegedly omitted from the record with sufficient specificity, as opposed to merely proffering broad categories of documents and data that are 'likely' to exist as a result of other documents that are included in the administrative record[.]" Winnemem Wintu Tribe v. U.S. Forest Service, No. 2:09-CV-01072-KJM-KJN, 2014 WL3689699, at * 10 (E.D. Cal. July 24, 2014) (citation omitted). "It is insufficient for a plaintiff to 'simply . . . assert [ ] that the documents are relevant, were before . . . [the agency] at the time it made its decision, and were inadequately considered.'" Id. (citation omitted; modifications in original).

III. DISCUSSION

A. Presumption of Completeness

Here, the parties dispute whether the AR consist of all documents and materials directly or indirectly considered by the agency in making its decision. Plaintiffs raise three arguments for why the Court should find that the presumption of completeness is rebutted. First, Plaintiffs point to Defendants' decision to add the eleven documents, arguing that this "makes clear that the original record production was incomplete." (Plfs.' Mot. at 4.) Second, Plaintiffs contend that the certification accompanying the filing of the AR did not indicate that the AR was complete. (Id.) Finally, Plaintiffs argue that Defendants admit that they did not include any internal agency communications or drafts based on an...