United States District Court, District of Columbia
CHRISTOPHER R. COOPER United States District Judge
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
National Marine Fisheries Service (“Service”) is
a federal agency within the Department of Commerce's
National Oceanic and Atmospheric Administration
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). 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.
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.
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.
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).
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.
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. 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).
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
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.
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 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
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.
Studies and reports cited in the EIS
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.
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. If a document was
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 ...