Donjon-SMIT, LLC v. Schultz, 2:20-CV-011

• Decision Date: 03 April 2020
• Docket Number: No. 2:20-CV-011,2:20-CV-011
• Parties: DONJON-SMIT, LLC, Plaintiff, v. ADMIRAL KARL L. SCHULTZ, CAPTAIN JOHN W. REED, COMMANDER MATTHEW J. BAER, and COMMANDER NORM C. WITT, in their individual capacity, and in their official capacity as Officers of the UNITED STATES COAST GUARD, Defendants.
• Court: U.S. District Court — Southern District of Georgia

DONJON-SMIT, LLC, Plaintiff, v. ADMIRAL KARL L. SCHULTZ, CAPTAIN JOHN W. REED, COMMANDER MATTHEW J. BAER,and COMMANDER NORM C. WITT, in their individual capacity, and in their official capacity asOfficers of the UNITED STATES COAST GUARD, Defendants.

No. 2:20-CV-011

United States District Court for the Southern District of Georgia Brunswick Division

April 3, 2020

ORDER

Before the Court is Donjon-SMIT, LLC's ("DJ-S") Motion to Compel. Dkt. No. 57. This motion has been fully briefed and is ripe for review. Dkt. Nos. 69, 70, 81. After considering the parties' respective briefs, reviewing the documents filed by the parties, and for the reasons provided below, DJ-S' Motion to Compel is DENIED.

BACKGROUND

This matter arises from the capsizing of the M/V GOLDEN RAY in the St. Simons Sound. Admin. R. at 716. It is the largest cargo shipwreck in United States coastal waters since Exxon Valdez. Dkt. No. 56 ¶ 10. Because the M/V GOLDEN RAY carried an estimated 380,000 gallons of oil and approximately 4,200 automobiles-each with their own pollution risk-the United States Coast Guard determined that "there may be an imminent and substantial threat to the public health or welfare or the environment because of an actual or substantial discharge/release of oil or designated hazardous substance from the vessel." Admin. R. at 94. As such, the incident triggered the statutory and regulatory requirements of the Oil Pollution Act of 1990 ("OPA 90"). 33 U.S.C. § 2701-2762; see Admin. R. at 94.

To comply with the requirements of OPA 90 and the Coast Guard regulations promulgated under it, each owner of a non-tank vessel carrying oil, like the M/V GOLDEN RAY, must have a Non-Tank Vessel Response Plan ("NTVRP") in place in the event of a "worst case discharge or substantial threat of discharge," so that responders can react to discharges and threats of discharge quickly and "without the need for contract negotiations during an actual emergency." 33 C.F.R. § 155.5010; 33 U.S.C. § 1321(j)(5)(D) (providing for response plan requirements); Salvage and Marine Firefighting Requirements; Vessel Response Plans for Oil, 73 FR 80618-01, 80635 (Dec. 31, 2008).

Once the Coast Guard determines OPA 90 and its regulations apply to an incident, the non-tank vessel owner must act in accordance with the federally regulated National Contingency Plan, Area Contingency Plan, and the NTVRP. An owner cannot deviate fromthese plans unless the President of the United States or the Federal On-Scene Coordinator ("FOSC") "determines that deviation from the response plan would provide for a more expeditious or effective response to the spill or mitigation of its environmental effects." 33 U.S.C. § 1321(c)(3)(B). Both parties agree that the approval of a deviation request by the FOSC constitutes a final agency action by the Coast Guard.

On September 20, 2017 DJ-S and G-Marine Services, Co., Ltd. ("G-Marine") entered into a contract agreeing that DJ-S would provide Salvage and Maritime Firefighting ("SMFF") services for G-Marine's vessels while in U.S. waters, including the M/V GOLDEN RAY, should an event involving the vessel trigger OPA 90's statutory and regulatory requirements. Dkt. No. 22-5 ("NTVRP Contract").¹ On December 19, 2019, the Owner requested a deviation from the NTVRP for the purpose of adding T&T Salvage, LLC ("T&T") as a SMFF service provider. Admin. R. at 86-93. On December 21, 2019, Commander Witt, the FOSC for the M/V GOLDEN RAY response, approved the Owner's deviation request (the "deviation decision") and wrote a contemporaneous "Decision Memo" explaining the decision. Id. at 85, 126-32.

In its Amended Complaint, dkt. no. 56, DJ-S alleges, inter alia, that Commander Witt's decision was "arbitrar[y] and capricious[], in [violation] of Donjon-SMIT's due process rights under the Fifth Amendment, in excess of their statutory authority, and without observance of procedure required by law." Id. ¶ 38. Such allegations trigger judicial review of the Commander's deviation decision under the Administrative Procedure Act ("APA"). 5 U.S.C. § 706(2)(A)-(D). In its review of Commander Witt's decision, the Court is limited to the administrative record.

On February 27, 2020, this Court ordered the Coast Guard to produce the whole administrative record by March 3, 2020. Dkt. No. 33. The Court expedited production of the administrative record due to the time sensitive nature of the injunctive relief requested by DJ-S. The Coast Guard timely produced the administrative record. Dkt. No. 46. The Coast Guard further completed the administrative record it originally filed by including omitted documents on March 6, 2020, dkt. no. 52, and on March 13, 2020, dkt. no. 69.

DJ-S alleges in its Motion to Compel that the Coast Guard "failed to properly designate the record," and moves this Court to compel the Coast Guard to produce the "whole record," or otherwise produce privilege logs for the allegedly withheld documents. Dkt. No. 57 at 1-2.

STANDARD OF REVIEW

DJ-S presents its motion as a motion to compel; however, DJ-S alleges that the Coast Guard "withheld critical documents from their production of the Administrative Record." Dkt. No. 57 at 1 (internal punctuation omitted). Moreover, DJ-S requests that this Court "order the Coast Guard to produce . . . undisclosed documents or assert a clear claim of privilege as to each document withheld." Id. at 2. DJ-S further requests that the Court "order the Coast Guard to provide a privilege log" for each document it argues is not part of the administrative record. Id. Accordingly, the Court will treat DJ-S' motion as a motion to complete and supplement the administrative record and apply the standard of review appropriate for such motions.²

Since OPA 90 does not specify a standard of review for deviation decisions, the standards provided in the APA apply. 5 U.S.C. § 706; Gerber v. Norton, 294 F.3d 173, 178 (D.C. Cir. 2002). Under the APA, a court's review of a final agency action is "generally confined to the administrative record that was before the [decision maker] when it made its decision." Franks v. Salazar, 751 F. Supp. 2d 62, 66 (D.C.C. 2010) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)). Once produced, the agency is entitled to a "strong presumption ofregularity that it properly designated the administrative record." Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corp of Eng'rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006). The presumption exists because an agency's certification of its administrative record "serves as formal representation by the agency that it duly evaluated all predecisional documents before excluding them from the record." Oceana v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019) (quotations, citations, and alterations omitted). To overcome this presumption, the movant must "(1) identify reasonable, non-speculative grounds for the belief that the documents were considered by the [decision maker] 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." Ctr. for Food Safety v. Vilsack, No. 15CV0159, 2017 WL 1709318, at *3 (N.D. Cal. May 3, 2017) (punctuation and citations omitted). In so doing, the moving party must make a "clear showing" of "strong" or "substantial" evidence that the administrative record is incomplete to overcome the presumption of the record's regularity and completeness. Tafas v. Dudas, 530 F. Supp. 2d 786, 795 (E.D. Va. 2008).

If the movant can do this, then the administrative record may be amended in one of two ways. First, it may be completed by"including evidence that should have been properly a part of the administrative record but was excluded by the agency." WildEarth Guardians v. Salazar, 670 F. Supp. 2d 1, 5 n.4 (D.D.C. 2009). Second, it may be supplemented by "adding extrajudicial evidence that was not initially before the agency but the [moving] party believes should nonetheless be included in the administrative record." Id.

If a party seeks to complete the record, it need not show that the agency engaged in bad faith or an otherwise improper purpose. See Overton Park, 401 U.S. at 420. However, if a party seeks to supplement the record, a process that necessarily involves discovery, then a strong or concrete showing of bad faith or improper purpose is necessary (in addition to a strong showing that the record is incomplete). Ohio Valley Envtl. Coal. v. Whitman, 3:02-cv-0059, 2003 WL 43377, at *2 (S.D.W. Va. Jan. 6, 2003) (citing Overton Park, 401 U.S. at 420).

ANALYSIS

In its Motion to Compel and Brief in Support, dkt. no. 57, DJ-S alleges the Coast Guard omitted five groups of documents from the administrative record: (1) documents pertaining to T&T's Salvage Plan ("T&T's Plan)³ and funding agreement with the Owner, (2) DJ-S' December 8, 2019 Plan ("DJ-S' ITT Plan"),⁴ (3) the U.S.Navy Supervisor of Salvage and Diving's ("SUPSALV") technical analysis of T&T's Plan and DJ-S' November 5, 2019 Plan ("DJ-S' LOI Plan"),⁵ (4) weekly operational summaries, and (5) documents the Coast Guard otherwise filed with the Court. Id. at 1.⁶ DJ-S claims that doing so will complete the administrative record. See Id. at 7. DJ-S further adds that the Coast Guard's disciplinary records, even though they are extra-record evidence, should be produced to supplement the record.⁷ Id. The Court addresses each category as follows:

I. Documents Pertaining to T&T's Plan

DJ-S alleges that Commander Witt "admitted" to considering documents pertaining to T&T's Plan that "demonstrate the lack of funding agreement with the Owner." Dkt. No. 57 at 1. The record shows otherwise. During Commander Witt's deposition, DJ-S' counsel asked Commander Witt if on the date of his deviation decision he had "any basis" to conclude that "there...