Dall. Safari Club v. Bernhardt

• Citation: 518 F.Supp.3d 535
• Decision Date: 09 February 2021
• Docket Number: Case No. 19-cv-03696 (APM)
• Court: U.S. District Court — District of Columbia
• Parties: DALLAS SAFARI CLUB, et al., Plaintiffs, v. David BERNHARDT, et al., Defendants.

518 F.Supp.3d 535

DALLAS SAFARI CLUB, et al., Plaintiffs,

v.David BERNHARDT, et al., Defendants.

Case No. 19-cv-03696 (APM)

United States District Court, District of Columbia.

Signed February 9, 2021

George L. Lyon, Jr., Bergstrom Attorneys, Washington, DC, for Plaintiffs.

Devon Lea Flanagan, Robert Mark Norway, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

Pending before the court is Plaintiffs’ Motion to Take Limited Discovery and/or for an Order to the Agency to Supplement the Record, ECF No. 23 [hereinafter Pls.’ Mot.]. Plaintiffs are the Dallas Safari Club, the Namibian Ministry of the Environment and Tourism, the Namibian Association of Community Based Natural Resource Management Support Organisations, and a group of individual elephant sport hunters seeking to import their sport-hunted African elephant trophies to the United States. They bring this action to challenge Defendant U.S. Fish and Wildlife Service's ("FWS") failure to act on pending elephant trophy import permit applications under the Administrative Procedure Act ("APA"). Processing of the permit applications is required under the agency's rules, see 50 C.F.R. § 13.11(c), and by the APA, 5 U.S.C. § 558(c) (requiring license applications be processed within a "reasonable time"). Plaintiffs allege that FWS is unlawfully refusing to process the permit applications because of tweets by President Trump in 2017. Pls.’ Mot. at 1. They assert two claims challenging FWS's alleged blanket "hold" on processing of import permit applications under 5 U.S.C. § 706(2), see Compl., ECF No. 1 [hereinafter Compl.], ¶¶ 89–90, and one claim alleging that "FWS is unlawfully withholding processing of Plaintiffs’ applications" under § 706(1), id. ¶ 91.

Plaintiffs initially moved for a preliminary injunction that would have required FWS to process pending and subsequently filed permit applications. See Pls.’ Mot. for Prelim. Inj., ECF No. 11. The court denied Plaintiffs’ motion on the ground that they had failed to show irreparable harm. See Dallas Safari Club v. Bernhardt , 453 F. Supp. 3d 391 (D.D.C. 2020).¹ Shortly thereafter, consistent with the court's March 6, 2020 Scheduling Order, see Order, ECF No. 19, Defendants submitted to Plaintiffs the administrative record, comprising all documents and material considered by the agency in making decisions related to the processing of elephant trophy permits, see Defs.’ Opp'n to Pls.’ Mot., ECF No. 27 [hereinafter Defs.’ Opp'n], at 5–6.

Having reviewed the administrative record, and finding themselves unsatisfied with its contents, Plaintiffs now ask the court to authorize extra-record discovery. In the first instance, Plaintiffs seek the depositions of FWS Branch of Permits Chief Dr. Mary Cogliano and former Acting Assistant Director for International Affairs at FWS, A. Eric Alvarez, see Pls.’ Mot. at 1, to get a sense of, among other things, "consideration[s]" that informed the "claimed [agency] ‘review’ " of elephant trophy imports and the bases for agency decisions, id. at 11. In the alternative, Plaintiffs seek an order compelling production of "internal deliberative materials concerning the [agency's] hold on the processing of elephant trophy import permits." Id. at 1.²

For the reasons that follow, the court denies Plaintiffs’ motion. "Requiring an agency to produce [ ] internal materials and allowing litigants to depose agency officials about [their subjective motivation] would be warranted only in the rarest of cases." Checkosky v. SEC , 23 F.3d 452, 489 (D.C. Cir. 1994) (per curiam). This is not such a case.

I.

When reviewing agency action under the APA, "a court is ordinarily limited to evaluating the agency's contemporaneous explanation in light of the existing administrative record," Dep't of Com. v. New York , 588 U.S. ––––, ––––, 139 S. Ct. 2551, 2573, 204 L.Ed.2d 978 (2019), and "will go beyond the agency's record only in exceptional cases," Marcum v. Salazar , 751 F. Supp. 2d 74, 78–79 (D.D.C. 2010) (citing Fla. Power & Light Co. v. Lorion , 470 U.S. 729, 743–44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) ); see also Camp v. Pitts , 411 U.S. 138, 143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ("[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."). That principle is based on "the recognition that further judicial inquiry into ‘executive motivation’ represents ‘a substantial intrusion’ into the workings of another branch of Government and should normally be avoided." Dep't of Com. , 139 S. Ct. at 2573 (quoting Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 268 n.18, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ). It "exerts its maximum force when the substantive soundness of the agency's decision is under scrutiny." Esch v. Yeutter , 876 F.2d 976, 991 (D.C. Cir. 1989).

As a preliminary matter, Plaintiffs argue that because this is a "[§]706(1) challenge to agency inaction, the court is not limited to the agency's tendered record." Mem. in Resp. to Opp'n to Mot. for Limited Disc. and/or for Order to Agency to Suppl. the R., ECF No. 28 [hereinafter Pls.’ Reply], at 2–5.³ The court disagrees.

For starters, Plaintiff would have the court apply different standards of review to different claims, even though they are premised on the same theory of violation. That makes little sense. Only one of Plaintiffs’ three claims—Count 3—is cast as a failure to act under § 706(1). See Compl. ¶ 91. Count 3 alleges that, under its own regulations, FWS promises to act on permit applications "as quickly as possible," 50 C.F.R. § 13.11(c), "strongly implying that the applications will be processed within 90 days," Compl. ¶ 91; see also id. ¶ 77 (citing 50 C.F.R. § 13.11(c)⁴ ), and that the agency's failure to abide by these self-imposed time constraints constitutes agency action "unlawfully withheld or unreasonably delayed" under § 706(1), id. ¶ 91. Count 1 rests on a similar premise, but it alleges that FWS's "[f]ailure to follow" its own rule to act "as a quickly as possible," 50 C.F.R. § 13.11(c), is "per se arbitrary and capricious" in violation of 5 U.S.C. § 706(2)(A). Id. ¶ 89. Under Plaintiffs’ logic, the court is confined to the administrative record in determining whether FWS's failure to act was "per se arbitrary and capricious" (Count 1), id. , but is permitted to engage in de novo , extra-record review to assess whether the processing of their applications was "unreasonably delayed" (Count 3), id. ¶ 91. The court cannot abide such an outcome.

More importantly, Plaintiffs’ position is belied by the statutory text of the APA. Section 706 provides that a reviewing court may (1) "compel agency action unlawfully withheld or unreasonably delayed" or (2) "hold unlawful and set aside agency action" for various enumerated reasons, and that "in making the foregoing determinations , the court shall review the whole record or those parts of it cited by a party." 5 U.S.C. § 706 (emphasis added). Nothing in the statutory text distinguishes the scope of record review based on whether the claim is directed at agency action or inaction. And nowhere does the text even hint at extra-record review occurring as a matter of course when agency action is alleged to be "unlawfully withheld or unreasonably delayed."

The cases Plaintiffs cite do little to help their cause. See Pls.’ Reply at 3–5. In many of them, the discussion of extra-record discovery is dicta or the facts of the cases too dissimilar to this case to be persuasive. See, e.g. , W. Watersheds Project v. Pool , 942 F. Supp. 2d 93, 100–01 (D.D.C. 2013) (considering the availability of relevant records as a factor supporting a motion to transfer to another judicial district); Nat'l Law Ctr. on Homelessness & Poverty v. U.S. Dep't of Veterans Affairs , 842 F. Supp. 2d 127, 131 (D.D.C. 2012) (discussing review of an administrative record as an aside in granting discovery on a non-APA issue); Cobell v. Babbitt , 91 F. Supp. 2d 1, 37 (D.D.C. 1999) (allowing for testimony to "explain[ ] the administrative record" given the "novelty of the issues" in the case, "the complexity of decision to be made, and the late filing of a voluminous (thirty-four volume) administrative record").⁵ The better reading of the APA is that its record review requirement "applies [regardless of] whether a court is reviewing agency action or inaction." Biodiversity Legal Found. v. Norton , 180 F. Supp. 2d 7, 10 (D.D.C. 2001) ; see also Raymond Proffitt Found. v. U.S. Army Corps of Eng'rs , 128 F. Supp. 2d 762, 768 n.8 (E.D. Pa. 2000) ("Review of claims based on failure to act and on action taken are generally limited to the administrative record."); Sierra Club v. U.S. Dep't of Energy , 26 F. Supp. 2d 1268, 1271 (D. Colo. 1998) ("The judicial review provisions of the APA do not distinguish between a claim that an agency unlawfully failed to act and a claim based on action taken."); Cross Timbers Concerned Citizens v. Saginaw , 991 F. Supp. 563, 570 (N.D. Tex. 1997) ("For either [the §§ 706(1) or 706(2) ] standard, judicial review must be based on the administrative record already in existence.").

To be sure, there are some failure-to-act cases where, as a practical matter, judicial review is difficult, if not impossible, absent extra-record evidence. For example, where an agency has failed to act, there simply may not be a record to review because the agency quite literally has done nothing. See, e.g. , Cmty. for Creative Non-Violence v. Lujan , 908 F.2d 992, 997–98 (D.C. Cir. 1990) (recognizing an exception to the bar on extra-record discovery in "the rare case in which the record is so bare as to frustrate effective judicial review"); Sierra Club , 26 F. Supp. 2d at 1271 ("Extra record evidence may be allowed in cases where an agency is being sued for failure to act if the record before the court is insufficient for the...