Oceana, Inc. v. Pritzker

• Decision Date: 04 November 2016
• Docket Number: Civil Action No. 15–1220 (ESH)
• Citation: 217 F.Supp.3d 310
• Parties: OCEANA, INC., Plaintiff, v. Penny PRITZKER, in her official capacity as Secretary of the United States Department of Commerce, et al., Defendant.
• Court: U.S. District Court — District of Columbia

217 F.Supp.3d 310

OCEANA, INC., Plaintiff,

v.Penny PRITZKER, in her official capacity as Secretary of the United States Department of Commerce, et al., Defendant.

Civil Action No. 15–1220 (ESH)

United States District Court, District of Columbia.

Signed November 4, 2016

Kristine L. Sendek–Smith, Charles L. Franklin, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, for Plaintiff.

Hao–Chin Hubert Yang, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

The motion before the Court presents a challenging legal issue about the composition of the administrative record in an arbitrary-and-capricious challenge to agency action: whether deliberative-process documents are part of the "whole record" for purposes of judicial review. In the underlying action, plaintiff Oceana, Inc. ("Oceana"), a nonprofit advocacy organization, challenges a final rule promulgated by the National Marine Fisheries Service ("NMFS") in order to carry out the agency's statutory mandate related to bycatch reporting.¹ Oceana now moves to compel defendants to complete the administrative record by preparing a privilege log that includes all documents withheld on the grounds of the deliberative-process privilege.

It is undisputed that the NMFS did not include in the record numerous documents that defendants claim are protected from disclosure by the deliberative-process privilege, and it is undisputed that the NMFS did not document the omissions in a privilege log. Oceana reasons that the administrative record is incomplete without those documents, or, at a minimum, without a privilege log detailing the omissions. Defendants respond that the record is already complete, arguing that deliberative-process documents are not part of the administrative record and consequently need not be logged as privileged. Upon consideration of the parties' briefs,² and for the reasons that follow, the Court agrees with defendants. Oceana's motion will therefore be denied.

BACKGROUND

This case arises under the Magnuson–Stevens Fishery Conservation and Management Act, 16 U.S.C §§ 1801 –1884. The Magnuson–Stevens Act sets forth the legal framework to "conserve and manage the fishery resources" of the United States. See id. § 1801(b)(1). The Magnuson–Stevens Act was amended in 1996 to require regional fishery councils or the Secretary of the NMFS to create fishery management plans that "establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery and include conservation and management measures that ... minimize bycatch [ ] and ... the mortality of bycatch." Pub. L. No. 104–297, 110 Stat. 3559 (1996) (codified as amended at 16 U.S.C. § 1853(a)(11) ).

Pursuant to this amendment, on June 30, 2015, the NMFS promulgated as a final rule an "omnibus amendment" for a standardized bycatch reporting methodology ("SBRM") for all thirteen of the federal fisheries in the Northeast region. 80 Fed. Reg. 37,182 (June 30, 2015). Oceana thereafter filed this lawsuit, alleging that the 2015 SBRM omnibus amendment "fails to address ... fundamental legal flaws" of the prior SBRM omnibus amendment, perpetuates the NMFS's "practice of underfunding and marginalizing its bycatch monitoring systems," and therefore "undermine[s] rather than advance[s] the goals established by Congress." (Compl. ¶¶ 4, 6, ECF No. 1.)

This is not the first time that Oceana has brought a legal challenge to the NMFS's attempts to comply with the Magnuson–Stevens Act's SBRM mandate. In 2008, Oceana filed a similar lawsuit challenging the NMFS's 2008 SBRM omnibus amendment for the same thirteen federal fisheries. Oceana v. Locke et al. , 725 F.Supp.2d 46 (D.D.C. 2010) (" Oceana I "), rev'd , 670 F.3d 1238, 1239 (D.C. Cir. 2011) (" Oceana II "); see 73 Fed. Reg. 4736, 4737 (Jan. 28, 2008). In the prior action, this Court granted summary judgment in favor of defendants and dismissed the case with prejudice. Oceana I , 725 F.Supp.2d at 70.³ On appeal, the D.C. Circuit reversed the grant of summary judgment and remanded to this Court, with orders to "vacat[e] the Amendment and remand [ ]" the matter to NMFS "for further proceedings."

Oceana II , 670 F.3d at 1243. Following this Court's remand to NMFS, the agency promulgated as a final rule the new SBRM omnibus amendment at issue in this case. See 80 Fed. Reg. 37,182 (June 30, 2015). Oceana has again challenged the agency action as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (Compl. ¶ 21 (quoting 5 U.S.C. § 706(2)(A) ).)

In connection with this lawsuit, the NMFS filed the administrative record for its 2015 SBRM omnibus amendment rulemaking. (Admin. Rec., Nov. 24, 2015, ECF No. 7.)⁴ After the parties met and conferred about the scope and contents of the record, the agency filed a superseding, supplemented administrative record. (Suppl. Admin. Rec., Apr. 15, 2016, ECF No. 12.) The supplemented administrative record added "certain documents for which the parties were able to reach agreement." (Defs.' Opp. at 4.) That supplemented record also contained a modified privilege log that omitted the entries for 21 documents that had been listed as withheld on the original privilege log as deliberative-process documents. (Pl.'s Mot. at 13 n.49.)⁵ Oceana then filed this motion to compel.

In this discovery dispute, Oceana asks the Court to order defendants to (1) "conduct a complete review of its agency files, including email correspondence involving key policymakers and stakeholder[s] involved with the development of the SBRM process"; (2) "produce the complete [ ] Administrative Record by including all such responsive documents from that search"; and (3) "in the case of any relevant document withheld based on deliberative process claims (or any other asserted privilege or protection), to list each document on a privilege log with detail sufficient to allow Oceana and the Court to evaluate the claim." (Pl.'s Mot. at 3.)

Given the nature of Oceana's requests, and given the undisputed fact that there are deliberative-process documents that have not been included in the record or logged as privileged, the disposition of the motion depends on whether deliberative materials should be included in the administrative record for judicial review, and if so, whether defendants must file a privilege log documenting the materials withheld pursuant to that privilege.

ANALYSIS

I. LEGAL STANDARD

As this case arises under the Magnuson–Stevens Act, the Court's review is cabined by the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"). See 16 U.S.C. § 1855(f)(1). The APA directs courts to "review the whole record or those parts of it cited by a party." 5 U.S.C. § 706. The Supreme Court has explained that the "whole record" refers to "the full administrative record that was before the [agency] at the time [it] made [its] decision." Citizens to Pres. Overton Park, Inc. 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) ; seeIMS, P.C. v. Alvarez , 129 F.3d 618, 623 (D.C. Cir. 1997) ("It is a widely accepted principle of administrative law that the courts base their review of an agency's actions on the materials that were before the agency at the time its decision was made."); Walter O. Boswell Mem'l Hosp. v. Heckler , 749 F.2d 788, 792 (D.C. Cir. 1984) ("If a court is to review an agency's action fairly, it should have before it neither more nor less information than did the agency when it made its decision.").⁶ As a general matter, "[t]he task of the reviewing court is to apply the appropriate APA 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) (citation omitted).

The agency whose action is challenged "is entitled to a strong presumption of regularity that it properly designated the administrative record." Dist. Hosp. Partners, L.P. v. Sebelius , 971 F.Supp.2d 15, 20 (D.D.C. 2013) (" Dist. Hosp. I "), affirmed sub nom. Dist. Hosp. Partners, L.P. v. Burwell , 786 F.3d 46 (D.C. Cir. 2015) (" Dist. Hosp. II ") (quoting Pac. Shores Subdiv., Cal. Water Dist. v. U.S. Army Corps of Eng'rs , 448 F.Supp.2d 1, 5 (D.D.C. 2006) ). Because of this presumption, "[s]upplementation of the administrative record is the exception, not the rule." Id. (quoting Pac. Shores , 448 F.Supp.2d at 5 )).

There are two grounds on which a party may seek "supplementation" of the administrative record. First, a party may request the disclosure of "evidence that should have been properly a part of the administrative record but was excluded by the agency." Id . (quoting WildEarth Guardians v. Salazar , 670 F.Supp.2d 1, 5 n.4 (D.D.C. 2009) ). For clarity, the Court will refer to compelling discovery on the first ground as completion of the administrative record. Second, a party may request disclosure of "extrajudicial evidence that was not initially before the agency but the party believes should nonetheless be included in the administrative record." Id . (quoting WildEarth Guardians , 670 F.Supp.2d at 5 n.4 ). The Court will refer to compelling discovery on the second ground as supplementation of the administrative record. Oceana fashions its motion as one for completion , arguing that the agency omitted from the record materials that it directly or indirectly considered in making its decision. (See Pl.'s Mot. at 3 ("The Administrative Record ... fails to meet minimum standards of completeness").)

Courts may not compel an agency to complete the administrative record unless the moving party can overcome the presumption of regularity. Dist. Hosp. I , 971 F.Supp.2d at 20. In order to do so, the party seeking completion must present "non-speculative, concrete evidence to support their belief that the specific...