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Organic Trade Association v. United States Department of Agriculture

United States District Court, District of Columbia

August 13, 2019

ORGANIC TRADE ASSOCIATION, Plaintiff,
v.
UNITED STATES DEPARTMENT, OF AGRICULTURE, et al., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE.

         This case involves an Administrative Procedure Act challenge to one agency final rule withdrawing another. Plaintiff Organic Trade Association has moved, inter alia, to supplement the administrative record for the current challenge to the withdrawing rule with comments from the separate record for the rule that was withdrawn. For the reasons stated below, that motion will be denied.

         I. BACKGROUND

         The Court has laid out in detail the background for this case in its last opinion, Organic Trade Ass'n v. U.S. Dep't of Agric., 370 F.Supp.3d 98 (D.D.C. 2019), and so recounts relevant specifics only briefly.

         On January 19, 2017, the last day of the administration of former President Barack Obama, the United States Department of Agriculture (USDA) issued the final Organic Livestock and Poultry Practices Rule (Final OLPP Rule), which made more stringent the regulations that govern the certification of livestock as “organic” by USDA. See 82 Fed. Reg. 7042 (Jan. 19, 2017). On January 20, 2017, the first day of the administration of President Donald Trump, the White House directed executive agencies to delay implementation of all pending regulations that had not yet become effective, which included the Final OLPP Rule. See Mem. for the Heads of Exec. Dep'ts and Agencies, 2017 WL 280678 (Jan. 20, 2017). USDA thereafter issued “Delay Rules” in February, May, and November 2017, each further delaying the effective date of the Final OLPP Rule. See 82 Fed. Reg. 9967, 21, 677, 52, 643. The May 2017 Delay Rule was also accompanied by a separate notice seeking public comment on possible fates of the Final OLPP Rule, which included implementation, indefinite suspension, further delay, and withdrawal. See 82 Fed. Reg. 21, 742 (May 10, 2017) (Options Rule). USDA ultimately concluded both that there was a mathematical error underlying the Final OLPP Rule, and that it did not have the statutory authority to issue the regulations in the Final OLPP Rule. In December 2017 USDA proposed to withdraw the Final OLPP Rule on these bases, see 82 Fed. Reg. 59, 988 (Dec. 18, 2017) (Proposed Withdrawal Rule), and formally did so on March 13, 2018. See 83 Fed. Reg. 10, 755 (Mar. 13, 2018) (Withdrawal Rule).

         The Organic Trade Association (OTA) challenged the delays to the effective date of the Final OLPP Rule in September 2017, and eventually challenged the Withdrawal Rule itself. See Second Am. Compl. (SAC) [Dkt. 34-3]. After denial of the government's motion to dismiss, the parties have been working together to determine the scope of the Administrative Record (Record) in preparation for summary judgment briefing. See Joint Mot. for Scheduling Order Extending Defs.' Deadline to File Answer & Setting Dates for Produc. of Admin. R. [Dkt. 78]. Although the parties have resolved several issues, OTA now asks for a court order to include three additional sets of documents in the Record:

1. The “Office of Inspector General Report” cited in the Final OLPP Rule. See 82 Fed. Reg. at 7044.
2. The “nine separate recommendations” of the National Organic Standards Board (NOSB or Board) cited in the Final OLPP Rule, see id., as well as any written responses by USDA to those recommendations.[1]
3. The 6, 675 comments to the Proposed OLPP Rule.

         OTA also asks the Court to rename an NOSB document already included in the Record, currently titled “Formal Recommendation, ” because OTA believes the title gives a false impression of the document's development. Finally, OTA requests time to confer with the government regarding a privilege log generated during parallel litigation in California. See Ctr. for Envtl. Health v. Perdue, No. 18-CV-1763 (N.D. Cal. Mar. 21, 2018). This matter is ripe for review.[2], [3]

         II. LEGAL STANDARD

         In keeping with the principle that a court sitting to review agency action under the APA does not engage in de novo review of the matter, judicial review is generally limited to the administrative record. Camp v. Pitts, 41 U.S. 138 (1973). To facilitate such review, the law requires that the agency identify and produce the complete administrative record. NRDC v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975). That record “properly consists of the materials before the agency and no more nor less, ” see Oceana, Inc. v. Ross, 290 F.Supp.3d 73, 78 (D.D.C. 2018), which “includes all materials [the agency] directly or indirectly relied on to make all decisions, not just final decisions.” Nat'l Wilderness Inst. v. U.S. Army Corps of Eng'rs, No. 01-0273, 2002 WL 34724414, at *3 (citing Amfac Resorts, LLC v. U.S. Dep't of the Interior, 143 F.Supp.2d 7, 10 (D.D.C. 2001)); see also CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (“It is black-letter administrative law that in an [Administrative Procedure Act] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision.” (citations omitted)). “As part of the record, the Court may consider any document that might have influenced the agency's decision and not merely those documents the agency expressly relied on in reaching its final determination.” Charleston Area Med. Ctr. v. Burwell, 216 F.Supp.3d 18, 23 (D.D.C. 2016) (citing Nat'l Courier Ass'n v. Bd. of Governors of Fed. Reserve Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975) (quotation omitted)). Indeed, to be complete, the record must include “all materials that ‘might have influenced the agency's decision,' and not merely those on which the agency relied in its final decision.” Amfac Resorts, 143 F.Supp.2d at 12 (citations omitted).

         An agency enjoys a presumption of regularity with respect to the administrative record it prepares; as the decisionmaker, it is generally in the best position to identify and compile the record. 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]bsent clear evidence to the contrary, an agency is entitled to a strong presumption of regularity, that it properly designated the administrative record.” (citations omitted)). Therefore, to prevail on a motion to supplement or complete the record, a plaintiff must “put forth concrete evidence and identify reasonable, non-speculative grounds for [its] belief that the documents were considered by the agency and not included in the record.” Oceana, 290 F.Supp.3d at 78-79 (citations omitted). If a court finds that the record produced “clearly do[es] not constitute the ‘whole record' compiled by the agency, ” it will order the agency to complete the record. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971) (quoting 5 U.S.C. § 706), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also Charleston Area Med. Ctr., 216 F.Supp.3d at 23.

         III. ...


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