Ga. Aquarium, Inc. v. Pritzker
| Decision Date | 16 December 2014 |
| Docket Number | Civil Action No. 1:13–CV–3241–AT. |
| Citation | 134 F.Supp.3d 1374 |
| Parties | GEORGIA AQUARIUM, INC., Plaintiff, v. Penny PRITZKER, in her Official Capacity as Secretary of Commerce, National Oceanic and Atmospheric Administration, and National Marine Fisheries Service, Defendants, Animal Welfare Institute, Whale And Dolphin Conservation, Whale And Dolphin Conservation, Inc. (North America), Cetacean Society International, and Earth Island Institute, Intervenor–Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
George John Mannina, Jr., Ashley J. Remillard, Nossaman, LLP; Daniel Francis Diffley (argued), Meaghan Goodwin Boyd, Alston & Bird, LLP, for Plaintiff.
Ethan Carson Eddy (argued), Clifford Eugene Stevens, Jr., U.S. Department of Justice; Lisa D. Cooper, Lori M. Beranek, U.S. Attorney's Office, Northern District of Georgia, for Defendants.
Tyler Joseph Sniff (argued), Donald D.J. Stack, Stack & Associates, P.C., for Intervenor–Defendants Animal Welfare Institute, Whale and Dolphin Conservation, Whale and Dolphin Conservation, Inc. (North America), Earth Island Institute, Inc., and Cetacean Society International, Inc.
AMY TOTENBERG
, District Judge.
This administrative appeal filed by Georgia Aquarium, Inc. ("Georgia Aquarium") seeking judicial review of the denial of a marine mammal import permit pursuant to the Administrative Procedures Act ("APA"), is before the Court on Georgia Aquarium's Motion to Supplement the Administrative Record [Doc. 29]. For the reasons set forth below, the Court DENIES Georgia Aquarium's Motion.
On June 15, 2012 Georgia Aquarium submitted an application to the National Marine Fisheries Service ("NMFS") under the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq.,
for a permit to import 18 beluga whales from Russia for public display. After an extensive review and comment period, NMFS denied Georgia Aquarium's permit application on August 5, 2013. On September 30, 2013, Georgia Aquarium filed this administrative appeal, asserting that NMFS's permit denial was arbitrary, capricious, and not in accordance with the law.
Georgia Aquarium seeks to add two categories of documents to the administrative record for consideration on its appeal: (1) certain documents withheld by NMFS under the deliberative process privilege and (2) three Russian studies of beluga whale population estimates that are referenced in other documents contained in the record and that were issued in 1986, 1987 and 1988. An administrative record may be "supplemented" in one of two ways, "either by (1) including evidence that should have been properly a part of the administrative record but was excluded by the agency, or (2) adding extrajudicial evidence that was not initially before the agency but the party believes should nonetheless be included in the administrative record." Am. Petroleum Tankers Parent, LLC v. United States, 952 F.Supp.2d 252, 261 (D.D.C.2013)
; WildEarth Guardians v. Salazar, 670 F.Supp.2d 1, 5 n. 4 (D.D.C.2009).
As the Supreme Court stated in Camp v. Pitts, "the focal point for judicial review of an administrative agency's action should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)
; see also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (); Pres. Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Engineers ("PEACH"), 87 F.3d 1242, 1246 (11th Cir.1996). The reviewing court's task under the APA "is to apply the appropriate ... standard of review ... to the agency decision based on the record the agency presents to the reviewing court." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743–44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) ; PEACH, 87 F.3d at 1246. As "[t]he reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry," the district court decides, on the basis of the record the agency provides, whether the action passes muster under the APA. PEACH, 87 F.3d at 1246 (quoting Lorion, 470 U.S. at 744, 105 S.Ct. 1598 ).
"[A]bsent clear evidence, an agency is entitled to a strong presumption of regularity, that it properly designated the administrative record." Am. Petroleum, 952 F.Supp.2d at 260–61
(quoting Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 5 (D.D.C.2006) ). "[W]hile certain circumstances may justify going beyond the administrative record, a court conducting a judicial review is not ‘generally empowered’ to do so." PEACH, 87 F.3d at 1246
(). "Supplementation of the administrative record is the exception, not the rule." Pac. Shores, 448 F.Supp.2d at 5 (quoting Motor & Equip. Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095, 1105 (D.C.Cir.1979) ). An agency, however, "may not skew the record by excluding unfavorable information but must produce the full record that was before the agency at the time the decision was made." Blue Ocean Inst. v. Gutierrez, 503 F.Supp.2d 366, 369 (D.D.C.2007).1
While the Eleventh Circuit has yet to specify what circumstances may justify going beyond the record, it has noted exceptions recognized by other circuits. See PEACH, 87 F.3d at 1246, n. 1
(citing Animal Defense Council v. Hodel, 840 F.2d 1432, 1436–37 (9th Cir.1988) ). The D.C. Circuit recognizes at least four "accepted exceptions," permitting supplementation on a showing that the agency: (1) acted in bad faith in reaching its decision, i.e. an illegal motive; (2) engaged in improper behavior in reaching its decision; (3) failed to examine all relevant factors; or (4) failed to adequately explain its grounds for decision. IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C.Cir.1997).
Georgia Aquarium asserts that NMFS improperly invoked the deliberative process privilege over certain documents in the record for two principal reasons. First, Georgia Aquarium contends that NMFS cannot rely on the deliberative process privilege when a challenge to the agency's decision making is the central issue in the litigation. Second, Georgia Aquarium asserts that the need for accurate fact-finding outweighs NMFS's interest in non-disclosure of deliberative process communications.2
"Judicial review of agency action should be based on an agency's stated justifications, not the predecisional process that led up to the final, articulated decision." Ad Hoc Metals Coal. v. Whitman, 227 F.Supp.2d 134, 143 (D.D.C.2002)
(). The deliberative process privilege protects the internal deliberations of an agency in order to "safeguard the quality of agency decisions." Nadler v. U.S. Dep't of Justice, 955 F.2d 1479, 1490 (11th Cir.1992), abrogated on other grounds by U.S. Dep't of Justice v. Landano, 508 U.S. 165, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)
As Judge Friedman in the district court for the District of Columbia aptly explained:
To require the inclusion in an agency record of documents reflecting internal agency deliberations could hinder candid and creative exchanges regarding proposed decisions and alternatives, which might, because of the chilling effect on open discussion within agencies, lead to an overall decrease in the quality of decisions. See San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1326 (D.C.Cir.1984)
; cf. Jordan v. United States Dept. of Justice, 591 F.2d 753, 772 (D.C.Cir.1978) (). Inclusion of such internal discussion also might cause confusion in the public sphere if everyone had access to internal discussions before agency issues were settled. See Jordan v. United States Dept. of Justice, 591 F.2d at 772. By maintaining the confidentiality of pre-decisional internal opinions and discussions, the policy of non-disclosure "protect[s] the integrity of the decisionmaking process" and ensures that agency actions are judged based on what was decided, not on what was considered. Id.
.
Two requirements must be met before the government may properly withhold a document from disclosure pursuant to the deliberative process privilege: (1) the document must be prepared prior to a final decision "in order to assist an agency decisionmaker in arriving at his decision;" and (2) the document must be "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." Id. at 1490–91 (citing Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975)
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