United States District Court, District of Columbia
ROYCE C. LAMBERTH, District Judge.
Plaintiffs in this case challenge a decision of the United States Fish and Wildlife Service ("FWS" or "the Service") to suspend imports of African elephant trophies sport-hunted in Zimbabwe. The suspension resulted from FWS's preliminary and final determinations in 2014 that sport-hunting of African elephants intended for import to the United States would not enhance the survival of the species. See 2d Am. Compl. [Dkt. #49] ¶¶ 1-3. These determinations reversed the agency's prior position on the matter, see id., and plaintiffs in this lawsuit claim that the Service violated the Administrative Procedure Act ("APA") and the Endangered Species Act in making the determinations. Id. ¶ 5.
Plaintiffs have filed a motion to compel supplementation of the administrative record, which they argue is incomplete. Pls.' Mot. to Compel Supplementation of Admin. R. & Admit Extra-R. Evidence [Dkt. #64] ("Mot."). Two documents are at issue in this motion. The first is an email dated June 7, 2002 authored by Timothy Van Norman, chief of FWS's Branch of Permits, concerning import permits for trophies of sport-hunted leopards from Zimbabwe. Email from Timoty Van Norman, Chief, FWS Br. of Permits, to Richard McDonal, FWS (June 7, 2002, 3:05 P.M.), Ex. A to Mot. [Dkt. # 64-2] ("Van Norman Email"). Plaintiffs request that the Court order this email to be added to the administrative record because, they assert, it is part of the record but not included in it by the agency, or alternatively, it should be treated as extra-record evidence. Mot. at 13-17, 21.
The second document at issue is an email dated June 14, 2002 authored by Karl Stromayer of FWS, with the subject "Visit to Zimbabwe and some issues concerning sport hunting and rhino in Zimbabwe." Email from Karl Stromayer, FWS, to Kenneth Stansell, et al., FWS (June 14, 2002, 4:24 P.M.), Ex. B to Mot. [Dkt. # 64-3] ("Stromayer Email"). Plaintiffs request that the Stromayer email be admitted as extra-record evidence or added to the administrative record. Mot. at 17-21; Reply in Supp. of Mot. [Dkt. #68] ("Reply") at 8 & n.4.
Defendants oppose the motion, and the issue is fully briefed. See Opp. to Mot. [Dkt. #67] ("Opp."); Reply. Because plaintiffs have not satisfied their burden to show that these emails should be added to the administrative record or considered as extra-record evidence, the Court will deny the motion.
STANDARD OF REVIEW
Judicial review of an agency action under the APA is limited to the administrative record that was before the agency at the time it made its decision. See 5 U.S.C. § 706 (2012); James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam) ("In applying [the abuse of discretion] standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."). "[T]he record must include all documents and materials that the agency directly or indirectly considered" and "neither more nor less." Maritel, Inc. v. Collins, 422 F.Supp.2d 188, 196 (D.D.C. 2006) (citations and internal quotation marks omitted).
Supplementing the administrative record in an APA case means adding material to the volume of documents the agency considered, while admitting extra-record evidence means adding material outside of or in addition to the administrative record that was not necessarily considered by the agency. Pac. Shores Subdiv. Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 5 (D.D.C. 2006).
A. Supplementing the Record
Supplementing administrative records in APA cases is the exception, not the rule. Id. at 5, citing Motor & Equip. Mfrs. Ass'n Inc. v. EPA, 627 F.2d 1095, 1105 (D.C.Cir. 1979), and Fund for Animals v. Williams, 391 F.Supp.2d 191, 197 (D.D.C. 2005). The agency enjoys a presumption that it properly designated the administrative record, and the record will not be supplemented absent clear evidence to the contrary. See Maritel, Inc., 422 F.Supp.2d at 196. "Because administrative records are presumed complete, motions to supplement the record are granted only in limited circumstances." Nat'l Mining Ass'n v. Jackson, 856 F.Supp.2d 150, 155 (D.D.C. 2012), citing Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010); see also Calloway v. Harvey, 590 F.Supp.2d 29, 37 (D.D.C. 2008) ("There is a standard presumption that the [administrative] agency properly designated the Administrative Record.") (alteration in original) (citation and internal quotation marks omitted).
Plaintiffs bear a "heavy burden" in seeking to overcome this presumption in order to supplement the record. WildEarth Guardians v. Salazar, 670 F.Supp.2d 1, 6 (D.D.C. 2009). To carry this burden, "plaintiff[s] must identify reasonable, non-speculative grounds for [their] belief that the documents were considered by the agency and not included in the record.'" Sara Lee Corp. v. Am. Bakers Ass'n, 252 F.R.D. 31, 34 (D.D.C. 2008), quoting Pac. Shores, 448 F.Supp.2d at 6. "Plaintiff[s] cannot merely assert that other relevant documents were before the [agency] but were not adequately considered." Id. They "must do more than imply that the documents at issue were in the [agency's] possession. Rather, plaintiff[s] must prove that the documents were before the actual decisionmakers involved in the determination." Id. (citations omitted).
This burden maintains the "harmonious relationship between agency and court." Pac. Shores, 448 F.Supp.2d at 5, quoting Deukmejian v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1325 (D.C. Cir. 1984), aff'd on reh'g sub nom. San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm'n, 789 F.2d 26 (D.C. Cir. 1986) (en banc). "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." Deukmejian, 751 F.2d at 1325. The principle that judicial review normally should be confined to the administrative record "exerts its maximum force when the substantive soundness of the agency's decision is under scrutiny." Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989).
B. Admitting Extra-Record Evidence
In addition to supplementing administrative records with material that an agency considered but failed to include, courts have in certain circumstances departed from the general rule of limiting judicial review to the administrative record and permitted the introduction of extra-record information. The D.C. Circuit has noted eight circumstances in which other courts have allowed this. Esch v. Yeutter, 876 F.2d at 991 ("(1) when agency action is not adequately explained in the record before the court; (2) when the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence which it failed to include in the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; ...