MEMORANDUM OPINION AND ORDER
JAMES
E. BOASBERG United States District Judge
Just a
few lines into this litigation's opening scene,
Defendants have asked for an intermission. After Plaintiff
Conservation Law Foundation filed a motion for summary
judgment, Defendants - one federal agency and two officials -
moved to remand the case to Defendant National Marine
Fisheries Service for 30 days. During this period, they
propose allowing the Agency to provide further explanation
for one of its decisions challenged here. Finding that
equitable factors ultimately favor permitting this brief
interlude, the Court will exercise its discretion to grant
Defendants the limited remand they seek.
I.
Background
Given
the early stage of the proceedings, the Court offers only the
background details necessary to tee up the narrow dispute at
issue, saving a more robust rehearsal for a future date.
This
case revolves around the Service's promulgation of the
Habitat Amendment, an omnibus amendment to several
fishery-management plans that govern fishing activity in the
waters seaward of New England. The process that led to this
Amendment was not all above board, says Plaintiff. A central
tenet of CLF's case asserts that the Service came up
short of its obligation under the Endangered Species Act to
account for the effects of its decision on North American
right whales. See ECF No. 32 (Pl. Opp.) at 3. Under
the ESA, an agency must “insure that” its actions
are “not likely to jeopardize the continued existence
of any endangered . . . or threatened species or” harm
such species' “critical” habitat.
See 16 U.S.C. § 1536(a)(2). This process,
generally speaking, entails two steps. The implementing
regulations task the agency with first determining whether
its proposed action “may affect listed species or
critical habitat.” 50 C.F.R. § 402.14(a). If the
agency answers in the affirmative for any species or habitat,
that determination triggers the ESA's “formal
consultation” requirement, provided that one of two
exceptions does not apply. Id. If the agency
determines, conversely, that its action would not have such
an affect, the ESA does not impose a further consultation
obligation.
The
administrative record, CLF contends, reveals that the Habitat
Amendment would affect right whales. It thus faults the
Agency for not engaging in formal consultation. See
Pl. Opp. at 3. The Service tells a different version of
events. It counters that it did consider the effect of its
action on right whales but concluded that further
consultation was not required. The existing record, the
Agency says, supports this determination. See ECF
No. 29 (Def. Mot.) at 1- 2, 8-10; ECF No. 34 (Def. Reply) at
2. It confesses, however, that it “did not clearly
document its decisionmaking process, ” Def. Reply at 2,
or follow the procedures “that it customarily would
under these circumstances.” Def. Mot. at 10. It is this
documentation that the Agency proposes to provide on remand.
“[B]ased on a checklist of relevant factors, ”
the Service says, it “will consider whether the Habitat
Amendment requires it to reinitiate consultation.” Def.
Reply at 3. Providing a clear explanation of the Agency's
decision now, it says, will promote judicial economy by
preventing a situation in which the Court would demand such
an explanation in a remand following a subsequent
summary-judgment ruling. See Def. Mot. at 10-11.
Plaintiff opposes the Government's Motion and would
prefer moving forward on the existing record.
II.
Legal Standard
The
Court has “broad discretion to grant or deny an
agency's motion to remand.” Util. Solid
Waste Activities Grp. v. EPA, 901 F.3d 414, 436 (D.C. Cir.
2018); see also Code v. McHugh, 139 F.Supp.3d 465,
468 (D.D.C. 2015) (“The decision whether to grant an
agency's request to remand is left to the discretion of
the court.”). That said, courts will “generally
grant an agency's motion . . . so long as ‘the
agency intends to take further action with respect to the
original agency decision on review.'” Util.
Solid Waste Activities Grp., 901 F.3d at 436 (quoting
Limnia, Inc. v. U.S. Dep't of Energy, 857 F.3d
379, 386 (D.C. Cir. 2017)). The rationale for this approach
is clear: courts “prefer[] to allow agencies to cure
their own mistakes rather than wast[e] the courts' and
the parties' resources reviewing a record that both sides
acknowledge to be incorrect or incomplete.” Ethyl
Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993);
accord FBME Bank Ltd. v Lew, 142 F.Supp.3d 70, 73 (D.D.C.
2015). For this reason, “[voluntary remand is typically
appropriate (i) when new evidence becomes available after an
agency's original decision was rendered, or (ii) where
intervening events outside of the agency's control may
affect the validity of an agency's actions.”
FBME Bank Ltd., 142 F.Supp.3d at 73 (internal
citations and quotation marks omitted).
These
are not the only circumstances, however, in which a voluntary
remand is appropriate. “Even in the absence of new
evidence or an intervening event, . . . courts retain the
discretion to remand an agency decision when an agency has
raised ‘substantial and legitimate' concerns in
support of remand.” Id. (quoting Carpenters
Indus. Council v. Salazar, 734 F.Supp.2d 126, 132 (D.D.C.
2010)). Two factors constrain this discretion. First, the
Court will not grant an agency request that “appears to
be frivolous or made in bad faith.” Util. Solid
Waste Activities Grp., 901 F.3d at 436. Second, courts
should “consider whether remand would unduly prejudice
the non-moving party.” Id; see also FBME Bank Ltd., 142
F.Supp.3d at 73 (similar).
III.
Analysis
Because
there is no argument here that new evidence or intervening
events cast doubt on the Agency's decision, this Motion
falls into the final bucket identified above: the Court's
broad discretion to grant requests that raise
“substantial and legitimate” concerns. See FBME
Bank Ltd, 142 F.Supp.3d at 73. The Court believes
that the Agency satisfies this threshold inquiry.
The
Government's request for a voluntary remand rests on its
tacit admission that the administrative record is, in at
least one respect, incomplete. As Defendants tell it, the
Service concluded that its action - i. e., the
Habitat Amendment - did not trigger the ES A's formal
consultation requirements. See Def. Reply at 2
(noting Service's “determination that it was not
required to consult”). The administrative record, they
further state, contains the factual underpinnings necessary
to support this conclusion. See Def. Mot. at 10
(stating that existing record “supports a finding that
the Habitat Amendment did not trigger a duty . . . to
reinitiate consultation”). What appears lacking,
however, is clear documentation of the Agency's line of
reasoning that connects these facts to its ultimate
conclusion. See Motor Vehicle Mfrs. Ass'n of U.S.,
Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
(1983) (requiring agency to “articulate a satisfactory
explanation for its action including a rational connection
between the facts found and choice made”) (internal
quotation marks omitted); see also Def. Reply at 2
(“NFMS did not clearly document its decisionmaking
process.”); Def. Mot. at 10 (“[T]he Court could
also conclude that the record is not sufficiently
clear.”); Def. Reply at 3 (proposing on remand
“to provide a supplemental explanation . . . that
clearly sets forth the agency's rationale”).
Whether
a voluntary remand serves the goal of judicial efficiency
hinges on how a court might proceed in response to this
potential deficiency in the record. On one hand, such
deficiency does not mandate that a reviewing court
necessarily find the Agency's action unlawful. A decision
that is not fully explained may nevertheless be upheld
“if the agency's path may be reasonably
discerned.” Bowman Transp., Inc. v. Ark.-Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974). For this
reason, presumably, Defendants do not confess error outright,
but contend that the Court could continue on the normal
course of judicial review. See Def. Mot. at 10
(citing Bowman Transp., Inc., 419 U.S. at 285-86).
On the other hand, however, a reviewing court's more
likely path would be to send the case back to the source in
such a circumstance. See Alpharma, Inc. v. Leavitt, 460 F.3d
1, 6 (D.C. Cir. 2006) (noting that Supreme Court
“approved the procedure of remanding so that an agency
can provide an explanation for an inadequately articulated
decision”). That is to say, if the existing record does
not provide an adequate line of reasoning that permits a
reviewing court to “evaluate the challenged agency
action, ” then “the proper course, except in rare
instances, is to remand to the agency for additional
investigation or explanation.” Delta Air Lines, Inc. v.
Export-Import Bank of U.S., 85 F.Supp.3d 436, 448 (D.D.C.
2015) (quoting Fla. Power & Light Co. v. Lorion,
470 U.S. 729, 744 (1985)); see also Id. at 449
(noting that in prior remand agency “only was ordered
to provide further explanation on remand in an
effort to justify the authorizations that it already had
made, not to revisit and reissue those decisions
anew”); AFL-CIO v. McLaughlin, 702 F.Supp.
307, 310 (D.D.C. 1988) (stressing “that this case was
not remanded to the Department so it might reexamine its . .
. policy”; rather, “the Department was simply
required to furnish a rational explanation for its
actions”), case dismissed sub nom. AFL-CIO v.
Dole, 1989 WL 105583 (D.C. Cir. Aug. 9, 1989). Such an
explanation is, of course, what the Service has offered to
provide voluntarily here. Proceeding in this manner could
thus spare the full round of summary-judgment briefing and
the Court's subsequent opinion, accelerating the
litigation by several months.
Plaintiff
offers two primary retorts to the propriety of a remand here.
First, it dismisses any Agency action on remand as
constituting mere post hoc rationalizations unworthy
of judicial attention. See Pl. Opp. at 6-12. As the
D.C. Circuit has repeatedly pointed out, however, the
documents that the Service would generate on remand do not
fit this moniker. The circuit's language ...