United States District Court, District of Columbia
SEGAL HUVELLE United States District Judge
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. 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.
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,
for the reasons that follow, the Court agrees with
defendants. Oceana's motion will therefore be denied.
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. §
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.)
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
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)).)
connection with this lawsuit, the NMFS filed the
administrative record for its 2015 SBRM omnibus amendment
rulemaking. (Admin. Rec., Nov. 24, 2015, ECF No.
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.) Oceana then filed this motion to compel.
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.)
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
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 (1971), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99, 97 (1977); see
IMS, 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.”). 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
(1985) (citation omitted).
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, ...