COLLEEN KOLLAR-KOTELLY, United States District Judge.
Despite the breadth of the parties' briefing, there is a narrow question before the
The Administrative Procedure Act directs the Court to "review the whole record or those parts of it cited by a party." 5 U.S.C. § 706. This requires the Court to review "the full administrative record that was before the Secretary at the time he made his decision." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Courts in this Circuit have "interpreted the `whole record' to include all documents and materials that the agency directly or indirectly considered... [and nothing] more nor less." Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 4 (D.D.C.2006) (citation omitted). "In other words, the administrative record `should not include materials that were not considered by agency decisionmakers.'" Id. (citation omitted). "[A]bsent clear evidence, an agency is entitled to a strong presumption of regularity, that it properly designated the administrative record." Id. at 5.
"Supplementation of the administrative record is the exception, not the rule." Pac. Shores, 448 F.Supp.2d at 5 (quoting Motor & Equip. Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095, 1105 (D.C.Cir. 1979)); Franks v. Salazar, 751 F.Supp.2d 62, 67 (D.D.C.2010) ("A court that orders an administrative agency to supplement the record of its decision is a rare bird."). This is because "an agency is entitled to a strong presumption of regularity, that it properly designated the administrative record." Pac. Shores, 448 F.Supp.2d at 5. "The rationale for this rule derives from a commonsense understanding of the court's functional role in the administrative state[:] `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.'" Amfac Resorts, L.L.C. v. Dep't of Interior, 143 F.Supp.2d 7, 11 (D.D.C.2001) (quoting San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1325-26 (D.C.Cir.1984)). However, an agency "may not skew the record by excluding unfavorable information but must produce the full record that was before the agency at the time the decision was made." Blue Ocean Inst. v. Gutierrez, 503 F.Supp.2d 366,
The administrative record may be "supplemented" in one of two ways, "either by (1) including evidence that should have been properly a part of the administrative record but was excluded by the agency, or (2) adding extrajudicial evidence that was not initially before the agency but the party believes should nonetheless be included in the administrative record." WildEarth Guardians v. Salazar, 670 F.Supp.2d 1, 5 n.4 (D.D.C.2009). Plaintiffs rely on the first type of supplementation — documents that they argue were wrongly excluded from the administrative record.
In seeking to force Defendants to supplement the administrative record with documents that were purportedly before the agency, Plaintiffs cannot merely assert that the documents "are relevant, were possessed by the entire agency at or before the time the agency action was taken, and were inadequately considered." Banner Health v. Sebelius, 945 F.Supp.2d at 17. Rather, Plaintiffs must articulate "when the documents were presented to the agency, to whom, and under what context." Pac. Shores, 448 F.Supp.2d at 7 ("Although Plaintiffs imply that the Corps possessed some of the documents because Plaintiffs obtained them through a Freedom of Information Act request, there is no evidence that the Corps' decisionmaker(s) were actually aware of the fourteen documents Plaintiffs seek to include."). Furthermore, Plaintiffs must offer "reasonable, non-speculative" grounds for their belief that the documents were directly or indirectly considered by the agency. Banner Health, 945 F.Supp.2d at 17. If Plaintiffs "can present such proof showing that [the agency] did not include materials that were part of its record, whether by design or accident, then supplementation is appropriate."
Plaintiffs seek to compel the Defendants to product the "whole record" that was before the agency at the time of each of its decisions to renew the license of the Cricket Hollow Zoo. Specifically, they seek all of the license applications, licenses, inspection reports, official warnings, enforcement actions, and communications and correspondence to or from the agency regarding the zoo. See Pls.' Mot, Ex. H (Lutz Letter) at 2.
As an initial matter, the Court must consider which decision(s) form the basis for the administrative record in this case. Plaintiffs purport to challenge both the 2014 licensing decisions and a "pattern and practice of licensing" decisions. The parties have not addressed the scope of this challenge other than in pair of dueling footnotes. Compare Defs.' Opp'n at 3 n.2 ("The only renewal decision that is properly before the Court is the recent renewal in or about May 2014.") with Pls.' Reply at 3 n.1 ("Plaintiffs alleged a `pattern and practice' claim that is very much alive"). Because the 2014 licensing decision is the only discrete agency action challenged in the complaint to which it appears that a challenge is not moot, the Court presumes, for the sake of resolving this motion, that the relevant decision forming the basis of the administrative record is the 2014 licensing decision.
Plaintiffs' argument for supplementing the record founders on the requirement they offer "reasonable, non-speculative" grounds that the documents were directly or indirectly considered by the agency. Defendants have repeatedly stated that they did not consider, for the purposes of renewing the license in this case, the documents that Plaintiffs seek to have included in administrative record. See, e.g., Defs.' Opp'n at 4. Instead, they state that they only considered the limited materials in the application in order to determine whether the applicant has complied with the requirements of renewing a license, which they have construed to be effectively ministerial.
For all the reasons stated above, it is
It is further