Oceana, Inc. v. Ross

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OCEANA, INC.,
Plaintiff,
v. Case No. 17-cv-829 (CRC)
WILBUR L. ROSS in his official capacity as
Secretary of Commerce, et al.,
Defendants.
MEMORANDUM OPINION
The National Marine Fisheries Service designs management plans to promote the
sustainability of particular species of ocean fish. Plaintiff Oceana, Inc. brought suit under the
Administrative Procedure Act challenging the Service’s management plan for one such species:
the dusky shark. But before reaching the merits of that challenge, the Court must first resolve
Oceana’s motion to compel the Service to complete or supplement the administrative record with
four categories of documents: (1) studies and other documents cited in the final Environmental
Impact Statement supporting the Service’s dusky shark management plan, (2) catch-related data
from fishing vessel logbooks and third-party observer reports, (3) documents withheld by the
Service under the deliberative process privilege, and (4) certain other extra-record studies and
data. Having considered the parties’ arguments and supporting evidence, the Court will order
that the record be supplemented with a subset of the materials in the first category of Oceana’s
request as detailed further below. The Court will deny Oceana’s motion in all other respects.
I. Background
The National Marine Fisheries Service (“Service”) is a federal agency within the
Department of Commerce’s National Oceanic and Atmospheric Administration (“NOAA”).
Under the Magnuson-Stevens Act, the Service is responsible for preparing management plans for
all “highly migratory” fisheries under its jurisdiction in the Atlantic. See 16 U.S.C.
§ 1854(g)(1).1 These plans contain measures which are “necessary and appropriate for the
conservation and management of the fishery, to prevent overfishing and rebuild overfished
stocks, and to protect, restore, and promote the long-term health and stability of the fishery.” Id.§ 1853(a)(1)(A). In order to protect against overfishing, in its management plans the Service sets
an optimum annual yield for each fishery and species of fish. See 50 C.F.R. § 600.310.
In July 2016, the Service released a draft amendment—Amendment 5b—to its Highly
Migratory Species Fishery Management Plan. A.R. 7080. Amendment 5b specifically addresses
the overfishing and management of dusky sharks in the Atlantic. Id. Following a public
comment period, the Service released a final version of Amendment 5b in February 2017. A.R.
7050. Oceana, Inc., an environmental and conservation organization, thereafter filed suit against
Secretary of Commerce Wilbur Ross, NOAA, and the Service itself.
After receiving the Service’s answer, the Court set a summary judgment briefing
schedule. Oceana then filed a motion to compel the Service to complete and supplement the
administrative record. In light of Oceana’s motion, the Court stayed summary judgment briefing
and held a hearing on February 2, 2018. It will now grant Oceana’s motion in part and deny it in
part, as detailed below.
1
The Act defines a “fishery” as “one or more stocks of fish which can be treated as a unit
for purposes of conservation and management and which are identified on the basis of
geographical, scientific, technical, recreational, and economic characteristics” and “any fishing
for such stocks.” 16 U.S.C. § 1802(13).
2
II. Legal Framework
Under the Administrative Procedure Act (“APA”), the Court is directed to “review the
whole record or those parts of it cited by a party.” 5 U.S.C. § 706. Thus, review of an agency’s
action under the APA “is to be based on the full administrative record that was before [the
agency] at the time [it] made [its] decision.” Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 420 (1971). The administrative record consists of “all documents and materials
that the agency ‘directly or indirectly considered,’” no more and no less. Maritel, Inc. v. Collins,
422 F. Supp. 2d 188, 196 (D.D.C. 2006) (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735,
739 (10th Cir. 1993)). An agency is “entitled to a strong presumption of regularity that it
properly designated the administrative record.” Pac. Shores Subdivision, Cal. Water Dist. v.
U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006).
There are two situations in which a plaintiff may seek to add evidence or documents to
the administrative record. First, a plaintiff may seek to include “extra-judicial evidence that was
not initially before the agency” but that the plaintiff “believes should nonetheless be included in
the administrative record.” Univ. of Colo. Health at Memorial Hosp. v. Burwell, 151 F. Supp. 3d
1, 13 (D.D.C. 2015) (citation omitted); see also The Cape Hatteras Access Pres. Alliance v. U.S.
Dep’t of Interior, 667 F. Supp. 2d 111, 113–14 (D.D.C. 2009). Second, a plaintiff may seek to
“include ‘evidence that should have been properly a part of the administrative record but was
excluded by the agency.’” Univ. of Colo., 151 F. Supp. at 13 (citation omitted); see also Cape
Hatteras, 667 F. Supp. 2d at 114.
With respect to the first situation, a party may supplement the administrative record if she
can “demonstrate unusual circumstances justifying a departure from th[e] general rule” against
considering extra-record evidence. City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir.
3
2010) (quoting Texas Rural Legal Aid v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C. Cir.
1991)); see also American Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)). The
D.C. Circuit has identified three such unusual circumstances: “(1) if the agency ‘deliberately or
negligently excluded documents that may have been adverse to its decision, (2) if background
information [is] needed ‘to determine whether the agency considered all the relevant factors,’ or
(3) if the ‘agency failed to explain administrative review so as to frustrate judicial review.’” City
of Dania Beach, 628 F.3d at 590 (quoting American Wildlands, 530 F.3d at 1002).
The appropriate standard to apply in the second situation—where a party seeks to include
evidence that was allegedly before the agency but nevertheless excluded from the administrative
record—has been the subject of some confusion. See Oceana, Inc. v. Pritzker, 217 F. Supp. 3d
310, 317 n.7 (D.D.C. 2016); Univ. of Colo., 151 F. Supp. at 13; Cape Hatteras, 667 F. Supp. 2d
at 113. This confusion has arisen because the term “supplement” “has been used synonymously
to refer to both a circumstance in which a party argues that the administrative record does not
actually reflect the materials that the agency had before it when it made its decision, and a
circumstance in which a party seeks to add extra-record or extra-judicial information to the
record that was concededly not before the agency.” Univ. of Colo., 151 F. Supp. at 13 (emphasis
in original); see also Oceana, 217 F. Supp. 3d at 317 n.7. The upshot is that it is unclear whether
a plaintiff seeking to add evidence it has demonstrated was before the agency (and thus is
properly part of the administrative record) must also show one of the three “unusual
circumstances” from cases such as City of Dania Beach in order to prevail.2
2
The D.C. Circuit has not clearly resolved this question because the key circuit cases—
City of Dania Beach and American Wildlands—involved extra-record material, not material that
was before the agency. See City of Dania Beach, 628 F.3d at 590 (seeking to add documents
from prior rulemakings); American Wildlands, 530 F.3d at 1002 (seeking to add two letters from
4
The Court agrees with its colleagues who have not required that an “unusual
circumstance” be demonstrated in such cases. After all, the administrative record properly
consists of the materials before the agency and no more nor less. See Walter O. Boswell
Memorial Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1989) (“The Supreme Court’s
formulation in Overton Park cautions against both under- and over-inclusiveness in the
administrative record before a reviewing court.”). If a plaintiff can show that a piece of evidence
was before the agency at the time the decision was made—and thus that that evidence is part of
the administrative record—it makes little sense to require that the plaintiff also show one of the
three unusual circumstances before requiring the agency to add the properly-part-of-the-record
evidence to the record. See, e.g., Univ. of Colo., 151 F. Supp. at 14. To hold otherwise would
result in the Court reviewing agency action without the entire administrative record before it,
contrary to what the APA directs, unless the plaintiff can make the heightened showing of an
unusual circumstance.
Consequently, for a plaintiff to prevail on a motion to complete the record—that is, to
add evidence that is properly part of the record but was excluded—she must only “‘put forth
concrete evidence’ and ‘identity reasonable, non-speculative grounds for [her] belief that the
documents were considered by the agency and not included in the record.’” Charleston Area
scientists whose work the Service considered); see also Univ. of Colo., 151 F. Supp. 3d at 14
(discussing D.C. Circuit case law). Similarly, the case that the Service cites for the proposition
that Oceana must prove the agency record is so inadequate as to frustrate judicial review in order
to prevail on a motion to complete the record, Defs.’ Opp’n Pl.’s Mot. Compel (“Defs.’ Opp’n”)
at 9, involved extra-record documents. See Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 285
(D.C. Cir. 1981) (discussing the need to look to extra-record documents if there is “such a failure
to explain administrative action as to frustrate effective judicial review” (citation omitted)).
5
Med. Ctr. v. Burwell, 216 F. Supp. 3d 18, 23 (D.D.C. 2016) (citation omitted); see also, e.g.,
Univ. of Colo., 151 F. Supp. at 15; Cape Hatteras, 667 F. Supp. at 114.
III. Analysis
Oceana seeks to add four categories of documents to the record: (1) studies and reports
cited in the final agency Environmental Impact Statement for Amendment 5b (the “EIS”); (2)
documents withheld from the record as privileged; (3) catch-related data from fishing vessel
logbooks and third-party observer reports; and (4) extra-record data. The Court will grant
Oceana’s motion as to part of the first category of documents and deny it as to the rest.
A. Studies and reports cited in the EIS
The first set of documents that Oceana seeks to add to the record, listed in Exhibit A of
its motion, consists of studies, memoranda, and assessments that the Service cited in the EIS.
See Mem. Supp. Pl.’s Mot. Compel Completion & Supplementation (“Pl.’s Mot.”) Ex. A. These
documents received one of three treatments in the EIS: (1) some were cited in the body of the
EIS for a substantive proposition; (2) some were cited in the body of the EIS but only as a source
of additional information that readers might wish to consult; and (3) some were cited solely in a
list of references and not in the body of the EIS. Oceana argues that because all of these studies
were cited somewhere in the EIS, they were clearly before the Service at the time it made its
decision and therefore belong in the administrative record. Pl.’s Mot. at 10–11. The Court
agrees in part.
First, there is a subset of documents listed in Oceana’s Exhibit A that were cited
substantively, i.e., to justify a factual statement or assertion made in the EIS.3 If a document was
3
See, e.g., A.R. 7155 (“For example, from 1992-2000, dusky sharks were 8.5 times more
common than a target species, the shortfin mako shark (Isurus oxyrinchus), in the pelagic
6
substantively cited, the Service clearly considered that document. After all, to know what the
document said the Service had to at least read it, and by citing the document to justify a
substantive factual proposition, the Service is purporting to have relied on the document and its
contents. As such, these documents were before the Service and belong in the administrative
record.
The Service’s arguments to the contrary are unpersuasive. It contends, mainly, that the
administrative record “need not include all references cited in an administrative record
document, as a citation alone does not show that the source document was ‘before’ the agency
decisonmaker.” Defs.’ Opp’n at 9. True enough. As the cases that the Service cites recognize,
the mere mention of a document in the agency’s decision or the record does not always mean,
ipso facto, that the agency considered the document. See Franks v. Salazar, 751 F. Supp. 2d 62,
69 (D.D.C. 2010) (“[N]either the materials’ purported relevance nor plaintiffs’ references to
Safari Club during the permitting process constitute concrete evidence that the Service
considered the materials, either directly or indirectly.”); WildEarth Guardians v. Salazar, 670 F.
Supp. 2d 1, 6 (D.D.C. 2009) (“[T]he Court is not persuaded that a singular reference to the 1979
Petition in the background section of the 90-day finding is, by itself, sufficient to support
supplementation of the record. Rather, as set forth above, Plaintiff must provide reasonable,
non-speculative grounds demonstrating that the 1979 Petition itself was considered, either
directly or indirectly, by the Secretary.”).
longline fishery (Beerkircher et al. 2002).”); A.R. 7184 (“The most commonly used hook was the
18.0 circle hook used on 42.4 percent of the hauls (Enzenauer et al., 2016).”); A.R. 7255 (“There
is no evidence that artificial lures or flies frequently cause gut-hooking and associated post-
release mortality (Muoneke and Childress 1994; Brownscombe et al. 2017).”).
7
But not all citations or references to a document in an agency decision are the same. An
agency’s decision to rely on a document to support a factual assertion is different from its mere
mention of a document’s existence. The use of a document to justify an assertion or proposition
indicates that the Service consulted and thought about—and therefore considered—that
document directly when issuing Amendment 5b. Indeed, one of the cases that Oceana relies on
explicitly distinguishes a situation where an agency merely mentions a document from one
where the agency cites a document for a substantive proposition. See WildEarth Guardians, 670
F. Supp. 2d at 7 (denying supplementation of the record with “a document that was mentioned—
but not substantively cited to—on one occasion” in the agency decision (emphasis added)); id. at
6 (“Although citation to a document may . . . indicate consideration of the contents of the
document, the fact that a document is merely mentioned does not lead to the same conclusion.”
(emphasis added)). The former may be insufficient, on its own, to show consideration, but the
latter is not.
The Service next argues that “duplicative documents and references used for background
information need not be included.” Defs.’ Opp’n at 10. But if the Service considered such
documents, then they do need to be included: the administrative record consists of all such
documents and no less. The key question is whether the Service considered the duplicative
documents or background references. With respect to those documents cited substantively, the
Service appears clearly to have consider them and they therefore belong in the administrative
record.
8
Second, there is a subset of documents that are cited in the body of the EIS, but solely as
a source of further information for the reader rather than to justify a factual proposition.4 In
contrast to the first category of documents, the Court concludes that Oceana has not met its
burden to show these belong in the administrative record. The use of a document as a source for
further reference is more akin to the sort of mere mention that is typically insufficient to prove
the document belongs in the administrative record. There is nothing to indicate that the relevant
decisionmakers actually thought about or even had these documents before them in the process
of making a decision—it may well be that a staffer included a citation on her own initiative. In
other words, the decision to cite a document as a further reference does not indicate that the
contents of that document were ever used, discussed, or consulted by decsionmakers when
determining the substance of the agency’s decision. Thus, the Court has not been presented with
concrete evidence that these documents were considered by the agency and will not require their
addition to the record.
Third, there is a subset of documents that are never cited in the body of the EIS, but are
included in the list of references appended to the end of each EIS chapter.5 While this is a closer
call than either of the previous two sets of materials, the Court ultimately concludes that these
documents, too, belong in the administrative record. 6 While these documents are not expressly
4
See, e.g., A.R. 7209 (“For detailed information about HMS tournaments, please see . . .
the 2011 SAFE Report (NMFS 2011a) . . .”); A.R. 7211 (“Community profile information along
with demographic information from the 1990, 2000, and 2010 U.S. Census can be found in the
2011 and 2012 SAFE Reports (NMFS 2011a; NMFS 2012).”).
5
See, e.g., A.R. 7237 (including Cortés & Neer 2002 and Babcock et al. 2003 in the
references list for EIS chapter 3, though neither are cited in the body of chapter 3).
6
Every document that is cited in the body of the EIS also appears in a list of references.
As to those documents that appear in a reference list and are also cited substantively in the text to
9
relied on for a substantive factual proposition, their inclusion in the list of suggests that the
Service consulted their contents in the process of making the EIS. Or, at a minimum, nothing
about their inclusion in a reference list suggests otherwise. And in the absence of any indication
or explanation to the contrary—for instance, the fact that the documents were only cited as a
source of extra information—the Court concludes that the inclusion of the documents in a
reference list is a concrete, non-speculative basis upon which to conclude that the Service
considered them, directly or indirectly, in developing the EIS. These documents, therefore,
belong in the administrative record as well.
B. Fishery observer and logbook data and reports
Oceana next seeks to add data regarding dusky shark mortality and bycatch.7 Pl.’s Mot.
at 11. Its request touches upon two sets of data that the Service maintains: observer reports and
logbook reports. Observer reports are filed by impartial observers aboard fishing vessels who
document the conditions and events during their time there. See Defs.’ Opp’n at 15. In turn,
logbook reports are maintained by the captain of a vessel and include information about the
justify a proposition (thereby falling within the first category), the Court has already held they
need to be added to the record. As to those documents that appear in a reference list and were
cited in the text solely for additional information (thereby falling within the second category), the
Court has already held they were not considered and need not be added to the record. This third
category of documents solely addresses those that appear in a reference list and were not cited in
the text at all.
7
“Under the Magnuson-Stevens Act, ‘bycatch’ has a very specific meaning: ‘fish which
are harvested in a fishery but which are not sold or kept for personal use, and includes economic
discards and regulatory discards. Such term does not include fish released alive under a
recreational catch and release fishery management program.’” A.R. 7214 (quoting 16 U.S.C. §
1802(2)). The Service’s fishery conservation and management measures “shall, to the extent
practicable, minimize bycatch and minimize the mortality of bycatch that cannot be avoided.”
Id. (citing 16 U.S.C. § 1851(a)(9)).
10
vessel and its route, the number and type of fish caught, the type of tackle and gear used, and the
ultimate disposition of the fish caught. Schulze-Haugen Decl. ¶ 18.
In the process of formulating Amendment 5b, the Service consulted databases that
compile the data from these logbook and observer reports. Id. ¶¶ 15, 18. The Service queried
the underlying databases for specific information, such as how many dusky sharks were observed
caught. Id. It then aggregated this data, considered it in developing Amendment 5b, and
reported the aggregate data in the final EIS. Id.; see also, e.g., A.R. 7090, 7091 (data tables).
Counsel for the Service stated at the hearing that the agency put the data it considered into the
tables in the final EIS.
Oceana seeks to add the disaggregated version of the data reflected in the tables in
Amendment 5b to the record.8 In order to prevail, Oceana must provide concrete evidence and a
non-speculative basis for concluding that the requisite decisionmakers considered the
disaggregated data as opposed to the aggregated data. After all, an agency staffer could have
queried the databases, compiled the relevant data, aggregated it, and then presented the
aggregated figures to higher-up agency personnel and decisionmakers to consult or use when
formulating Amendment 5b. Put another way, the fact that the data was at one point
disaggregated does not necessarily mean that that disaggregated data was consulted, thought
about, or even seen by the agency decisionmakers. Thus, the mere fact that the Service used the
raw databases to generate aggregated data to use in the final EIS does not alone provide a
8
To the extent that Oceana seeks access to other data in the databases that was not pulled
from the database and analyzed—for instance, data regarding fish species other than the dusky
shark—it presents no evidence to indicate the Service considered any of this data and thus
supplementation of the record with the entire database would be inappropriate.
11
concrete, non-speculative basis upon which to conclude that it considered the disaggregated
figures or the entire raw dataset.
Oceana further contends that more data needs to be added to the record because the tables
in the EIS do not contain the full spectrum of data available to the Service. For instance, it notes
that some of the tables only reflect observer data and not logbook data. Pl.’s Reply at 8. Other
tables, it says, reflect data from only some fisheries and not others. Id. at 9. But the mere fact
that other data was available to the Service does not mean the Service considered the underlying
data.9 Nor does the fact that the Service considered using the data mean that it considered the
underlying data. Cf. A.R. 7260 (Service explaining why it did not look at data on landings of
designated target species reported in Coastal Fisheries Logbook). The Service can determine
which datasets to consult and utilize in its analysis without consulting or utilizing the underlying
data in that set. And if the Service decisionmakers did not even look at, let alone consult or
utilize the underlying data, then they have not considered it.
In sum, the mere fact that the Service had data available to it does not provide a concrete,
non-speculative basis upon which to conclude that it considered that available data. Nor does the
fact that the Service considered and used the aggregated data that already appears in the EIS
provide a concrete, non-speculative basis upon which to conclude that it considered the
9
The Court will note that in one section of the final EIS, the Service explained that it
used both logbook and observer data in the Predraft to Amendment 5b but used only logbook
data in the final EIS. See A.R. 7259. But since the Predraft is in the record already, any data
that appears there but not in the final EIS is also already in the record.
12
underlying raw or disaggregated data. Oceana has therefore failed to meet its burden to prove
these datasets belong in the record.10
C. Reviews, comments, emails, and drafts
Next, Oceana challenges the Service’s withholding of certain documents from the
administrative record pursuant to the deliberative process privilege. See Pl.’s Mot. at 19–23, id.Ex. C. Courts in this District have long held that materials that fall within the scope of the
deliberative process privilege are not part of the administrative record. See, e.g., Am. Petroleum
Tankers Parent, LLC v. United States, 952 F. Supp. 2d 252, 265 (D.D.C. 2013).
The justification for such a limitation is two-fold. First, “[d]eliberative documents are
excluded from the record because, when a party challenges agency action as arbitrary and
capricious, the reasonableness of the agency’s action ‘is judged in accordance with its stated
reasons.’ ‘[T]he actual subjective motivation of agency decisionmakers is immaterial as a matter
of law—unless there is a showing of bad faith or improper behavior.’” Nat’l Ass’n of Chain
Drug Stores v. U.S. Dep’t of Health & Human Services, 631 F. Supp. 2d 23, 27 (D.D.C. 2009)
(second alteration in original) (quoting In re Subpoena Duces Tecum Served on the Office of
Comptroller of Currency, 156 F.3d 1279, 1279 (D.C. Cir. 1998)). Second, protecting internal,
deliberative materials helps “enhanc[e] the quality of agency decisions by protecting open and
frank discussion among those who make them within the Government.” Oceana, 217 F. Supp.
3d at 319 (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9
10
Oceana contends that even if this data is not record evidence, it should be added to the
record as extra-record evidence. For the reasons discussed more below in the section dealing
with Oceana’s other extra-record evidence, the Court finds that Oceana fails to show any unusual
circumstance requiring supplementation of the record with this data.
13
(2001)). After all, “officials will not communicate candidly among themselves if each remark is
a potential item of discovery and front page news.” Id. (quoting Klamath Water, 532 U.S. at 9).
In determining whether a document falls within the scope of the deliberative process
privilege, courts in this District apply the same test used in Freedom of Information Act
(“FOIA”) or common law privilege cases. See, e.g. Am. Petroleum, 952 F. Supp. 3d at 265. To
fall within the scope of the privilege a document must meet two requirements: (1) “the material
must be predecisional” and (2) “it must be deliberative.” In re Sealed Case, 121 F.3d 729, 737
(D.C. Cir. 1997). A document is predecisional “if it was generated before the adoption of an
agency policy” and it is deliberative “if it reflects the give-and-take of the consultative process.”
Am. Petroleum, 952 F. Supp. 2d at 265 (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151
(D.C. Cir. 2006)).
1. Documents PR25 and PR26 from the Service’s privilege log
The Service prepared a log listing the documents it withheld from the administrative
record on the basis of privilege. It included documents withheld under the deliberative process
privilege on the ground that they “help form an understanding in the agency’s decisionmaking
process and . . . the thought process the agency undertook in developing Amendment 5b.”
Schulze-Haugen Decl. ¶ 24. Oceana first contends that the Service improperly withheld two
documents on the log pursuant to the deliberative process privilege. The first, PR25, is described
in the privilege log as “Southeast Fisheries Science Center review of Amendment 5b Final
Environmental Impact Statement (FEIS), for internal agency discussion.” Pl.’s Mot. Ex. L, at
19. The second document, PR26, is described as “Southeast Fisheries Science Center review of
comments and responses of Amendment 5b . . . for internal agency discussion.” Id.14
At first blush, both of these documents seem to meet the requirements of the deliberative
process privilege. Both are clearly predecisional: they are dated January 2017 and thus precede
the final EIS issued in February 2017. They also appear to be deliberative. The Southeast
Fisheries Science Center is a “‘scientific agency’ within” the Service, and its comments thereby
contain suggestions and feedback from agency staff on a preliminary draft of an agency decision.
Schulze-Haugen Decl. ¶ 21. Such “recommendations, draft documents, proposals, suggestions,
and other subjective documents which reflect the personal opinions of the writer rather than the
policy of the agency” are widely recognized as falling within the scope of the privilege. Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
Oceana nonetheless contends that these documents are not protected because they contain
factual material. Pl.’s Mot. at 18. But the so-called “fact/opinion” dichotomy is not as clearly
delineated as Oceana contends. As the D.C. Circuit has explained in the FOIA context, “the
legitimacy of withholding [under the deliberative process privilege] does not turn on whether the
material is purely factual in nature or whether it is already in the public domain, but rather on
whether the selection or organization of facts is part of an agency’s deliberative process.”
Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011).
Margo Schulze-Haugen, a Service employee, has attested that the two comment documents at
issue “are not limited to purely factual or scientific information, as policy issues are often deeply
intertwined with the scientific issues, particularly given the uncertainty surrounding data and the
various options presented to and available to the agency for consideration.” Schulze-Haugen
Decl. ¶ 21. In determining how to frame and interpret the data available to it, the Service
exercises discretion in the selection and organization of facts. Comments on a draft concerning
these issues—such as those here, according to Schulze-Haugen—fall within the scope of the
15
deliberative process privilege. The Service therefore properly asserted the privilege over these
two documents.
2. Other unspecified documents
Oceana also argues that the agency withheld “an unspecified amount of material,
including drafts, emails, and other internal documents, that it characterizes as ‘deliberative’
which the agency believes are therefore not part of the record in the first instance.” Pl.’s Mot. at
23–24. The Service contends that these documents would be protected under the deliberative
process privilege. Defs.’ Opp’n at 25–26. However, when addressing this category of
documents, Oceana does not contest that some record materials are properly withheld under the
deliberative process privilege. See, e.g., Pl.’s Mot. at 24. Nor does Oceana contest the
applicability of the two-part test from FOIA and common law privilege cases to administrative
record ones. See id. at 17 n.5. Instead, Oceana appears to take issue solely with the wholesale
nature of the Service’s withholding here.
While Oceana may be correct that the Service cannot wholesale withhold a category of
documents based only on their form—e.g., all memos from junior agency personnel to senior
agency personnel—it may do so if the category of documents withheld by definition meets the
requirements of the deliberative process privilege—e.g., all predecisional and deliberative
memos from junior agency personnel to senior agency personnel. And to justify this
withholding, the Service must simply represent that those documents meet the requirements of
the deliberative process privilege. After all, if a document meets the test for the deliberative
process privilege, then the agency has necessarily shown that its release would undermine the
interests the privilege is designed to protect.
16
The Court will thus deny Oceana’s motion with respect to this set of documents for two
reasons. First, Oceana fails to identify any specific documents or provide concrete evidence and
non-speculative grounds for the conclusion that these specific documents were considered by the
agency. In light of the presumption of regularity that is afforded an agency’s certification that it
compiled the complete record, it is not enough for Oceana to simply contend, as it does here, that
the agency must add all the documents it considered. By failing to point to specific documents
and specific grounds on which to conclude those documents were considered, Oceana fails to
meet its burden.
Second, to the extent there are other internal, deliberative (and predecisional) documents
that the agency did consider, those documents would be protected by the deliberative process
privilege and thereby should not be added to the record. As noted earlier, internal and
deliberative emails and drafts of agency decisions are the sort of materials often protected by the
deliberative process privilege. For this reason as well, the Court will deny this aspect of
Oceana’s motion.11
D. Extra-record documents
Finally, Oceana seeks to add a set of data on dusky shark bycatch and mortality from
various fisheries other than the highly migratory fishery (where dusky sharks are presumably
most found). Oceana concedes that this is extra-record data. See Pl.’s Mot. at 27–28 (“Despite
this evidence, the Fisheries Service did not consider mortality data from non-HMS fisheries . . . .
The observer and logbook data that Oceana seeks to add to the administrative record as extra-
11
Nor will the Court require the Service to provide a privilege log specifically listing this
alleged category of records, for the reasons articulated by other judges in this District. See, e.g.,
Stand up for California! v. U.S. Dep’t of Interior, 71 F. Supp. 2d 109, 123–24 (D.D.C. 2014);
Blue Ocean Institute v. Gutierrez, 503 F. Supp. 2d 366, 372 (D.D.C. 2007).
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record evidence are listed in Exhibit D to the Hardy Declaration.” (emphases added)).
Therefore, Oceana must show that one of the three unusual circumstances applies. It argues that
two are present: (1) the agency deliberately or negligently ignored possibly adverse documents
and (2) the reports are background information needed to determine if the agency has considered
all the relevant factors. However, Oceana has not demonstrated that either circumstance is
present here.
With respect to the first alleged unusual circumstance—the agency deliberately or
negligently ignored potentially adverse evidence—the D.C. Circuit has recently explained that a
party must show evidence of bad faith on the part of the agency to carry its burden. See Dist.
Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 54 (D.C. Cir. 2015) (“Meeting this exception
requires a ‘strong showing of [agency] bad faith’. . .” (citation omitted)).12 But Oceana provides
no indication or evidence of bad faith. Nor does it explain how these reports are potentially
adverse. Thus, Oceana does not carry its burden of showing this first unusual circumstance is
present.
This leaves the second circumstance—that the reports are background information the
Court will need in order to determine if the agency considered all the relevant factors. But it is
not at all clear that the Court needs to have this data in front of it to determine whether the
12
Oceana contends that it need not show bad faith to meet this first unusual circumstance,
arguing that the D.C. Circuit “has been inconsistent as to whether bad faith is part of this element
or is a separate circumstance” and that the case on which District Hospital itself relies treated bad
faith as a separate unusual circumstance. See Pl.’s Mot. at 24 n.14. But as Oceana concedes,
District Hospital “described bad faith as a necessary component of the adverse documents
exception.” Id. To the extent that District Hospital is inconsistent with prior D.C. Circuit
decisions, that is a problem to be resolved by the Court of Appeals, not by this Court. In the
meantime, this Court is bound to follow District Hospital, which clearly states that bad faith is a
required element of the first unusual circumstance Oceana asserts.
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Service should have consulted it. After all, the parties can adequately argue about whether the
Service should have considered this data without the Court having the precise figures in the
administrative record. See Midcoast Fishermen’s Ass’n v. Gutierrez, 592 F. Supp. 2d 40, 46
(D.D.C. 2008) (“Supplementing the record with the bycatch data from an earlier period will not
provide any ‘background’ useful to resolving the case. No matter what ‘background’ is
provided, the issue remains the same: did the agency err by only considering the data that it
did?”). Consequently, this data is not necessary for the Court to be able to address Oceana’s
argument on the merits and the second unusual circumstance is not present. Because Oceana has
not demonstrated the presence of an unusual circumstance, the Court will deny its request to
supplement the record with this extra-record information.
IV. Conclusion
For the foregoing reason, the Court will grant in part and deny in part Oceana’s motion.
The Service must complete the record with the documents listed in Oceana’s Exhibit A
excluding the first three documents listed (the 2008, 2011, and 2012 SAFE reports). However,
the Court will not require the Service to add any of the other documents to the record. A
separate Order will accompany this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: February 21, 2018
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