Animal Legal Defense Fund v. Vilsack , 110 F. Supp. 3d 157 ( 2015 )


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  •                         UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ANIMAL LEGAL DEFENSE FUND, et
    al.,
    Plaintiffs
    Civil Action No. 14-1462 (CKK)
    v.
    THOMAS J. VILSACK, et al.,
    Defendants
    MEMORANDUM OPINION and ORDER
    (June 23, 2015)
    Despite the breadth of the parties’ briefing, there is a narrow question before the
    Court: whether Plaintiffs have demonstrated that Defendants have not produced the
    complete administrative record regarding the renewal of the license of the Cricket Hollow
    Zoo by the U.S. Department of Agriculture. Even though the parties’ briefing revisits the
    question whether the administrative record is required in the first instance, the Court
    already answered that request in the affirmative in a Minute Order issued January 22,
    2015. In addition, the parties have each included arguments pertaining to the merits of
    this case, as well filed additional notices that address merits issues. But those questions
    are not before the Court today. Instead, before the Court is Plaintiffs’ [26] Motion to
    Compel the Complete Administrative Record. In that motion, Plaintiffs seek to add
    numerous documents to the record compiled by the agency, arguing that those documents
    were before the agency when it made the licensing decisions at issue in this case. For the
    reasons stated below, the Court DENIES Plaintiff’s [26] Motion to Compel the Complete
    Administrative Record. The Court concludes that the documents at issue were not directly
    or indirectly considered by the agency in the licensing renewal process and, therefore, are
    not properly part of the administrative record in this case.
    I. Legal Standard
    The Administrative Procedure Act directs the Court to “review the whole record or
    those parts of it cited by a party.” 
    5 U.S.C. § 706
    . This requires the Court to review “the
    full administrative record that was before the Secretary at the time he made his decision.”
    Citizens to Preserve Overton Park v. Volpe, 
    401 U.S. 402
    , 420 (1971), abrogated on other
    grounds by Califano v. Sanders, 
    430 U.S. 99
     (1977). Courts in this Circuit have
    “interpreted the ‘whole record’ to include all documents and materials that the agency
    directly or indirectly considered ... [and nothing] more nor less.” Pac. Shores Subdivision,
    Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 
    448 F. Supp. 2d 1
    , 4 (D.D.C. 2006)
    (citation omitted). “In other words, the administrative record ‘should not include
    materials that were not considered by agency decisionmakers.’” 
    Id.
     (citation omitted).
    1
    “[A]bsent clear evidence, an agency is entitled to a strong presumption of regularity, that
    it properly designated the administrative record.” 
    Id. at 5
    .
    “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)); Franks v. Salazar, 
    751 F. Supp. 2d 62
    , 67 (D.D.C. 2010)
    (“A court that orders an administrative agency to supplement the record of its decision is
    a rare bird.”). This is because “an agency is entitled to a strong presumption of regularity,
    that it properly designated the administrative record.” Pac. Shores, 
    448 F. Supp. 2d at 5
    .
    “The rationale for this rule derives from a commonsense understanding of the court’s
    functional role in the administrative state[:] ‘Were courts cavalierly to supplement the
    record, they would be tempted to second-guess agency decisions in the belief that they
    were better informed than the administrators empowered by Congress and appointed by
    the President.’ ” Amfac Resorts, L.L.C. v. Dep’t of Interior, 
    143 F. Supp. 2d 7
    , 11 (D.D.C.
    2001) (quoting San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 
    751 F.2d 1287
    , 1325-26 (D.C. Cir. 1984)). However, an agency “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). The agency may not exclude information from the record simply
    because it did not “rely” on the excluded information in its final decision. Maritel, Inc. v.
    Collins, 
    422 F. Supp. 2d 188
    , 196 (D.D.C. 2006). Rather, “a complete administrative
    record should include all materials that might have influenced the agency’s decision[.]”
    Amfac Resorts, 
    143 F. Supp. 2d at 12
     (citations omitted). “[W]hile it is true that data and
    analysis compiled by subordinates may be properly part of the administrative record
    despite not having actually passed before the eyes of the Secretary,” to be included in the
    Administrative Record, “the data or analysis must be sufficiently integral to the final
    analysis that was considered by the [agency], and the [agency’s] reliance thereon
    sufficiently heavy, so as to suggest that the decisionmaker constructively considered it.”
    Banner Health v. Sebelius, 
    945 F. Supp. 2d 1
    , 28 (D.D.C. 2013).
    II. Discussion
    The 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.” WildEarth Guardians v. Salazar, 
    670 F. Supp. 2d 1
    , 5 n.4 (D.D.C.
    2009). Plaintiffs rely on the first type of supplementation—documents that they argue
    were wrongly excluded from the administrative record. 1
    1
    With respect to the second type of supplementation, the D.C. Circuit Court of Appeals
    has “recognized a small class of cases where district courts may consult extra-record
    evidence when ‘the procedural validity of the [agency]’s action ... remains in serious
    2
    In seeking to force Defendants to supplement the administrative record with
    documents that were purportedly before the agency, Plaintiffs cannot merely assert that
    the documents “are relevant, were possessed by the entire agency at or before the time the
    agency action was taken, and were inadequately considered.” Banner Health v. Sebelius,
    945 F. Supp. 2d at 17. Rather, Plaintiffs must articulate “when the documents were
    presented to the agency, to whom, and under what context.” Pac. Shores, 
    448 F. Supp. 2d at 7
     (“Although Plaintiffs imply that the Corps possessed some of the documents because
    Plaintiffs obtained them through a Freedom of Information Act request, there is no
    evidence that the Corps’ decisionmaker(s) were actually aware of the fourteen documents
    Plaintiffs seek to include.”). Furthermore, Plaintiffs must offer “reasonable, non-
    speculative” grounds for their belief that the documents were directly or indirectly
    considered by the agency. Banner Health, 945 F. Supp. 2d at 17. If Plaintiffs “can present
    such proof showing that [the agency] did not include materials that were part of its
    record, whether by design or accident, then supplementation is appropriate.” Nat’l Mining
    Ass’n v. Jackson, 
    856 F. Supp. 2d 150
    , 156 (D.D.C. 2012) (citation omitted).
    Plaintiffs seek to compel the Defendants to product the “whole record” that was
    before the agency at the time of each of its decisions to renew the license of the Cricket
    Hollow Zoo. Specifically, they seek all of the license applications, licenses, inspection
    reports, official warnings, enforcement actions, and communications and correspondence
    to or from the agency regarding the zoo. See Pls.’ Mot, Ex. H (Lutz Letter) at 2.
    As an initial matter, the Court must consider which decision(s) form the basis for the
    administrative record in this case. Plaintiffs purport to challenge both the 2014 licensing
    decisions and a “pattern and practice of licensing” decisions. The parties have not
    addressed the scope of this challenge other than in pair of dueling footnotes. Compare
    Defs.’ Opp’n at 3 n.2 (“The only renewal decision that is properly before the Court is the
    recent renewal in or about May 2014.”) with Pls.’ Reply at 3 n.1 (“Plaintiffs alleged a
    ‘pattern and practice’ claim that is very much alive”). Because the 2014 licensing
    decision is the only discrete agency action challenged in the complaint to which it
    appears that a challenge is not moot, the Court presumes, for the sake of resolving this
    question.’” Hill Dermaceuticals, Inc. v. Food & Drug Admin., 
    709 F.3d 44
    , 47 (D.C. Cir.
    2013) (quoting Esch v. Yeutter, 
    876 F.2d 976
    , 991 (D.C. Cir. 1989)). The Court of
    Appeals has describe this prong as a “narrow set of exceptions.” 
    Id.
     Indeed, “Esch has
    been given a limited interpretation since it was decided, and at most it may be invoked to
    challenge gross procedural deficiencies—such as where the administrative record itself is
    so deficient as to preclude effective review.” 
    Id.
     (citing Theodore Roosevelt Conservation
    P’ship v. Salazar, 
    616 F.3d 497
    , 514 (D.C. Cir. 2010)). Plaintiffs have not argued that the
    documents they want this Court to consider fall within this “narrow set of exceptions,”
    much less demonstrated to this Court’s satisfaction that it is applicable here—such that
    expanding the administrative record would be appropriate in order to resolve the
    currently pending motion to dismiss.
    3
    motion, that the relevant decision forming the basis of the administrative record is the
    2014 licensing decision. 2 Cf. Del Monte Fresh Produce N.A., Inc. v. United States, 
    706 F. Supp. 2d 116
    , 119 (D.D.C. 2010) (holding that claim challenging “pattern and practice”
    of unreasonable delay is not justiciable under the APA).
    Plaintiffs’ argument for supplementing the record founders on the requirement they
    offer “reasonable, non-speculative” grounds that the documents were directly or
    indirectly considered by the agency. Defendants have repeatedly stated that they did not
    consider, for the purposes of renewing the license in this case, the documents that
    Plaintiffs seek to have included in administrative record. See, e.g., Defs.’ Opp’n at 4.
    Instead, they state that they only considered the limited materials in the application in
    order to determine whether the applicant has complied with the requirements of renewing
    a license, which they have construed to be effectively ministerial. 3 Indeed, the gravamen
    of Plaintiffs’ claims in this action is that the agency should have but did not consider
    information about the performance of the Cricket Hollow Zoo in renewing its license.
    Accordingly, Plaintiffs’ attempt to argue that additional materials that were in the
    agency’s possession—such as documentation regarding alleged complaints about the zoo
    or agency enforcement activities—falls short. As thin as the administrative record in this
    case may be, the Court concludes that Plaintiffs have failed to show that the agency has
    improperly excluded items from the record. 4
    III. Conclusion
    For all the reasons stated above, it is ORDERED that Plaintiffs’ [26] Motion to
    Compel the Complete Administrative Record is DENIED.
    It is further ORDERED that Plaintiffs shall file an opposition to the pending Motion
    to Dismiss by no later than July 23, 2015, and that Defendants shall file a Reply in
    support of that motion by no later than August 21, 2015.
    SO ORDERED.
    Dated: June 23, 2015
    /s/
    COLLEEN KOLLAR-KOTELLY
    United States District Judge
    2
    The Court notes that, because of the conclusion that additional documents are not
    properly part of the administrative record, this presumption is of modest import with
    respect to the currently pending motion.
    3
    Whether those requirements comport with the statutory scheme and are otherwise
    lawful is a question to be resolved another day.
    4
    Although it should go without saying, the Court notes that the denial of the pending
    motion to compel today does not in any way suggest a resolution of Defendant’s Motion
    to Dismiss. The Court will address the merits of that motion when it is fully briefed.
    4