UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) DALLAS SAFARI CLUB, et al., ) ) Plaintiffs, ) ) v. ) Case No. 19-cv-03696 (APM) ) DAVID BERNHARDT, et al., ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER

Pending before the court is Plaintiffs’ Motion to Take Limited Discovery and/or for an

Order to the Agency to Supplement the Record, ECF No. 23 [hereinafter Pls.’ Mot.]. Plaintiffs

are the Dallas Safari Club, the Namibian Ministry of the Environment and Tourism, the Namibian

Association of Community Based Natural Resource Management Support Organisations, and a

group of individual elephant sport hunters seeking to import their sport-hunted African elephant

trophies to the United States. They bring this action to challenge Defendant U.S. Fish and Wildlife

Service’s (“FWS”) failure to act on pending elephant trophy import permit applications under the

Administrative Procedure Act (“APA”). Processing of the permit applications is required under

the agency’s rules, see

(c), and by the APA,

(c) (requiring license

applications be processed within a “reasonable time”). Plaintiffs allege that FWS is unlawfully

refusing to process the permit applications because of tweets by President Trump in 2017.

Pls.’ Mot. at 1. They assert two claims challenging FWS’s alleged blanket “hold” on processing

of import permit applications under

(2), see Compl., ECF No. 1 [hereinafter

Compl.], ¶¶ 89–90, and one claim alleging that “FWS is unlawfully withholding processing of

Plaintiffs’ applications” under § 706(1), id. ¶ 91. Plaintiffs initially moved for a preliminary injunction that would have required FWS to

process pending and subsequently filed permit applications. See Pls.’ Mot. for Prelim. Inj., ECF

No. 11. The court denied Plaintiffs’ motion on the ground that they had failed to show irreparable

harm. See Dallas Safari Club v. Bernhardt,

(D.D.C. 2020). 1 Shortly

thereafter, consistent with the court’s March 6, 2020 Scheduling Order, see Order, ECF No. 19,

Defendants submitted to Plaintiffs the administrative record, comprising all documents and

material considered by the agency in making decisions related to the processing of elephant trophy

permits, see Defs.’ Opp’n to Pls.’ Mot., ECF No. 27 [hereinafter Defs.’ Opp’n], at 5–6.

Having reviewed the administrative record, and finding themselves unsatisfied with its

contents, Plaintiffs now ask the court to authorize extra-record discovery. In the first instance,

Plaintiffs seek the depositions of FWS Branch of Permits Chief Dr. Mary Cogliano and former

Acting Assistant Director for International Affairs at FWS, A. Eric Alvarez, see Pls.’ Mot. at 1, to

get a sense of, among other things, “consideration[s]” that informed the “claimed [agency]

‘review’” of elephant trophy imports and the bases for agency decisions,

. In the

alternative, Plaintiffs seek an order compelling production of “internal deliberative materials

concerning the [agency’s] hold on the processing of elephant trophy import permits.”

. 2

1 The factual background of the underlying matter is set forth in detail in the court’s Memorandum Opinion denying Plaintiffs’ Motion for a Preliminary Injunction. See Dallas Safari Club, 453 F. Supp. 3d at 398. 2 Plaintiffs frame their request for internal deliberative materials as a request to “supplement the record,” but it is more accurately framed as a request for extra-record evidence. To “supplement” the record means to “add[] to the volume of the administrative record [] documents the agency considered” in making its decision. Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng’rs,

(D.D.C. 2006). Extra-record evidence, on the other hand, consists of “evidence outside of or in addition to the administrative record that was not necessarily considered by the agency.” Id.; see also Dep’t of Com. v. New York,

, ___,

(2019) (addressing separately a request to supplement the record and a request for discovery outside the record). The deliberative materials Plaintiffs seek in this case are considered extra-record evidence because “predecisional and deliberative documents are not part of the administrative record to begin with.” Oceana, Inc. v. Ross,

(D.C. Cir. 2019) (cleaned up).

2 For the reasons that follow, the court denies Plaintiffs’ motion. “Requiring an agency to

produce [] internal materials and allowing litigants to depose agency officials about [their

subjective motivation] would be warranted only in the rarest of cases.” Checkosky v. SEC,

(D.C. Cir. 1994) (per curiam). This is not such a case.

I.

When reviewing agency action under the APA, “a court is ordinarily limited to evaluating

the agency’s contemporaneous explanation in light of the existing administrative record,” Dep’t of

Com. v. New York,

, ___,

(2019), and “will go beyond the

agency’s record only in exceptional cases,” Marcum v. Salazar,

, 78–79 (D.D.C.

2010) (citing Fla. Power & Light Co. v. Lorion,

, 743–44 (1985)); see also Camp v.

Pitts,

(1973) (“[T]he focal point for judicial review should be the administrative

record already in existence, not some new record made initially in the reviewing court.”). That

principle is based on “the recognition that further judicial inquiry into ‘executive motivation’

represents ‘a substantial intrusion’ into the workings of another branch of Government and should

normally be avoided.” Dep’t of Com.,

(quoting Arlington Heights v. Metro.

Hous. Dev. Corp.,

, 268 n.18 (1977)). It “exerts its maximum force when the

substantive soundness of the agency’s decision is under scrutiny.” Esch v. Yeutter,

(D.C. Cir. 1989).

As a preliminary matter, Plaintiffs argue that because this is a “[§]706(1) challenge to

agency inaction, the court is not limited to the agency’s tendered record.” Mem. in Resp. to Opp’n

3 to Mot. for Limited Disc. and/or for Order to Agency to Suppl. the R., ECF No. 28 [hereinafter

Pls.’ Reply], at 2–5. 3 The court disagrees.

For starters, Plaintiff would have the court apply different standards of review to different

claims, even though they are premised on the same theory of violation. That makes little sense.

Only one of Plaintiffs’ three claims—Count 3—is cast as a failure to act under § 706(1).

See Compl. ¶ 91. Count 3 alleges that, under its own regulations, FWS promises to act on permit

applications “as quickly as possible,”

(c), “strongly implying that the

applications will be processed within 90 days,” Compl. ¶ 91; see also

¶ 77 (citing

(c) 4), and that the agency’s failure to abide by these self-imposed time constraints

constitutes agency action “unlawfully withheld or unreasonably delayed” under § 706(1), id. ¶ 91.

Count 1 rests on a similar premise, but it alleges that FWS’s “[f]ailure to follow” its own rule to

act “as a quickly as possible,”

(c), is “per se arbitrary and capricious” in violation

of

(2)(A).

. Under Plaintiffs’ logic, the court is confined to the

administrative record in determining whether FWS’s failure to act was “per se arbitrary and

capricious” (Count 1),

but is permitted to engage in de novo, extra-record review to assess

whether the processing of their applications was “unreasonably delayed” (Count 3),

. The

court cannot abide such an outcome.

More importantly, Plaintiffs’ position is belied by the statutory text of the APA.

Section 706 provides that a reviewing court may (1) “compel agency action unlawfully withheld

3 Because Plaintiffs raise this argument for the first time in their reply brief, Defendants have moved to strike it, or in the alternative, seek leave to file a sur-reply. See Defs.’ Mot. to Strike or for Leave to File Sur-Reply Mem., ECF No. 29. Ordinarily, arguments raised for the first time in a reply brief are considered waived. See N.Y. Rehab. Care Mgmt., LLC v. NLRB,

(D.C. Cir. 2007). Here, however, Plaintiffs do not oppose Defendants’ filing of a sur-reply. See Opp’n to Mot. to Strike & Resp. to Defs.’ Sur-Reply, ECF No. 30, at 4. For the sake of completeness, the court addresses Plaintiffs’ argument and grants Defendants leave to file the sur-reply appended to their Motion to Strike, ECF No. 29-1, which the court has considered in drafting this Memorandum Opinion. 4

(c) advises applicants for “permits for marine mammals and/or endangered and threatened species” to “postmark[ ] [applications] at least 90 calendar days prior to the requested effective date.”

4 or unreasonably delayed” or (2) “hold unlawful and set aside agency action” for various

enumerated reasons, and that “in making the foregoing determinations, the court shall review the

whole record or those parts of it cited by a party.”

(emphasis added). Nothing in

the statutory text distinguishes the scope of record review based on whether the claim is directed

at agency action or inaction. And nowhere does the text even hint at extra-record review occurring

as a matter of course when agency action is alleged to be “unlawfully withheld or unreasonably

delayed.”

The cases Plaintiffs cite do little to help their cause. See Pls.’ Reply at 3–5. In many of

them, the discussion of extra-record discovery is dicta or the facts of the cases too dissimilar to

this case to be persuasive. See, e.g., W. Watersheds Project v. Pool,

, 100–01

(D.D.C. 2013) (considering the availability of relevant records as a factor supporting a motion to

transfer to another judicial district); Nat’l Law Ctr. on Homelessness & Poverty v. U.S. Dep’t of

Veterans Affairs,

(D.D.C. 2012) (discussing review of an administrative

record as an aside in granting discovery on a non-APA issue); Cobell v. Babbitt,

(D.D.C. 1999) (allowing for testimony to “explain[] the administrative record” given the

“novelty of the issues” in the case, “the complexity of decision to be made, and the late filing of a

voluminous (thirty-four volume) administrative record”). 5 The better reading of the APA is that

5 In a footnote in their reply brief, Plaintiffs cite “another case [in this District] involving FWS’s failure to issue elephant trophy import permits” in which the court allowed “substantial discovery.” Pls.’ Reply at 12 n.9 (citing Safari Club Int’l v. Babbitt, Case No. 91-cv-2523 (D.D.C.)). In support of that statement, Plaintiffs append to their brief a printout of the docket and a cover sheet for a deposition of an agency official taken in Safari Club International. See Pls.’ Reply, Exs. 1 & 2, ECF Nos. 28-1, 28-2. According to the Memorandum Opinion and Order resolving the motion to dismiss in that case, it included a constitutional claim. See Safari Club Int’l v. Babbitt, Case No. 91-cv- 2523 (RCL),

, at *6 (D.D.C. Dec. 15, 1994) (“In Claim VII . . . plaintiff alleges that the use of the Guidelines is a violation of due process and equal protection.”). “[T]here are a handful of cases in which courts have allowed discovery on constitutional claims” that are coupled with APA challenges, Chiayu Chang v. USCIS,

, 162–63 (D.D.C. 2017) (providing cases); see also Rydeen v. Quigg,

(D.D.C. 1990) (allowing for review of additional affidavits “not before the agency upon administrative review” because the case involved constitutional challenges), which might explain why the court allowed for discovery in Safari Club International. Plaintiffs in this case do not raise constitutional claims and have not otherwise shown that extra-record

5 its record review requirement “applies [regardless of] whether a court is reviewing agency action

or inaction.” Biodiversity Legal Found. v. Norton,

(D.D.C. 2001); see also

Raymond Proffitt Found. v. U.S. Army Corps of Eng’rs,

, 768 n.8 (E.D. Pa.

2000) (“Review of claims based on failure to act and on action taken are generally limited to the

administrative record.”); Sierra Club v. U.S. Dep’t of Energy,

(D. Colo.

1998) (“The judicial review provisions of the APA do not distinguish between a claim that an

agency unlawfully failed to act and a claim based on action taken.”); Cross Timbers Concerned

Citizens v. Saginaw,

(N.D. Tex. 1997) (“For either [the §§ 706(1) or 706(2)]

standard, judicial review must be based on the administrative record already in existence.”).

To be sure, there are some failure-to-act cases where, as a practical matter, judicial review

is difficult, if not impossible, absent extra-record evidence. For example, where an agency has

failed to act, there simply may not be a record to review because the agency quite literally has done

nothing. See, e.g., Cmty. for Creative Non-Violence v. Lujan,

, 997–98 (D.C. Cir.

1990) (recognizing an exception to the bar on extra-record discovery in “the rare case in which the

record is so bare as to frustrate effective judicial review”); Sierra Club,

(“Extra record evidence may be allowed in cases where an agency is being sued for failure to act

if the record before the court is insufficient for the court to determine whether the agency

unlawfully withheld compliance with a statutory mandate.”). And because there is no clear

end-point to decision-making when an agency has failed to act, some courts have allowed an

agency to supplement the record with relevant documents generated after the agency produced the

administrative record. See, e.g., S.F. BayKeeper v. Whitman,

, 886 (9th Cir. 2002)

(allowing the agency to supplement the administrative record with a later-created document

discovery is warranted. Therefore, without more information on the Safari Club International court’s rationale for allowing discovery, that case is unpersuasive.

6 because there was “no final agency action that close[d] the administrative record”); Friends of the

Clearwater v. Dombeck,

, 560–61 (9th Cir. 2000) (allowing “supplemental material

submitted by the Forest Service” to be considered as part of the administrative record because

“there [wa]s no final agency action to demarcate the limits of the record”); NIO v. U.S. Dep’t of

Homeland Sec.,

, 242–43 (D.D.C. 2018) (authorizing record supplementation

where the document at issue communicated policies and procedures and was an update to a

document already in the record).

Neither of those circumstances is present in this case. Far from being “so bare as to

frustrate effective judicial review,” Cmty. for Creative Non-Violence,

, the

administrative record in this case contains over 2,600 pages of material considered by FWS

regarding its prioritization of permit applications and its ability to act on pending elephant trophy

import applications. Nor are Plaintiffs seeking to supplement the record with specific material that

was generated after the agency produced the administrative record. Instead, Plaintiffs seek to delve

into the agency’s subjective motivation and internal decision-making process via depositions and

deliberative documents. As Defendants note, even if the court were not limited to review of the

administrative record, Plaintiffs would not be automatically entitled to such evidence. See Defs.’

Mot. to Strike or for Leave to File Sur-Reply Mem., ECF No. 29, Ex. A, ECF No. 29-1, at 7. The

Supreme Court’s bar on “prob[ing] the mental processes of” agency officials predates the passage

of the APA, see United States v. Morgan,

(1941), and for the reasons that follow,

Plaintiffs have not shown that such an intrusion is warranted in this case.

II.

Where, as here, the administrative record “disclose[s] the factors that were considered” and

contains contemporaneous “administrative findings” relevant to the agency’s actions, there must

7 be “a strong showing of bad faith or improper behavior before [inquiry into the mental processes

of agency decision-makers] may be made.” Citizens to Pres. Overton Park, Inc. v. Volpe,

(1971); see also Theodore Roosevelt Conservation P’ship v. Salazar,

(D.C. Cir. 2010) (“The APA limits judicial review to the administrative record except when

there has been a strong showing of bad faith or improper behavior or when the record is so bare

that it prevents effective judicial review.” (cleaned up)). 6 Plaintiffs argue that they have made

such a showing, pointing to a Department of the Interior Memorandum (“DOI Memo”) prepared

the day before the administrative record was produced in this case. See Pls.’ Mot. at 7–8. As

Plaintiffs explain, “[o]n the day before the Administrative Record was due to the Court,” id. at 7,

“DOI Chief of Staff Todd Willens directed a Memorandum to the FWS Director Aurelia Skipwith

directing her to continue not to issue elephant import permits,” id. at 5 (citing AR 240, located in

the Joint Appendix, ECF No. 31 [hereinafter J.A.], at 2615). 7 At the end of the DOI Memo,

Mr. Willens provides an explanation for the continued delay in processing elephant trophy import

permits:

Due to the workload and limited resources and staff, the higher conservation risk associated with elephant trophy imports compared to many of the other backlogged permit applications, the controversial nature of these actions, and ongoing litigation regarding elephant trophy imports creating uncertainty, the Department of the Interior has decided to prioritize the allocation of existing resources to other categories of work and is not altering the

6 Defendants fault Plaintiffs for not “mention[ing] the ‘unusual circumstances’ standard utilized in the D.C. Circuit to evaluate requests for record supplementation,” Defs.’ Opp’n at 10, but that is not the standard when, as here, a movant seeks discovery of the agency’s decision-making process, see Com. Drapery Contractors, Inc. v. United States,

(D.C. Cir. 1998); see also In re Subpoena Duces Tecum Served on Office of Comptroller of Currency,

, 1279–80 (D.C. Cir. 1998) (“Agency deliberations not part of the record are deemed immaterial . . . unless there is a showing of bad faith or improper behavior,” or “no administrative record to review.” (citing Overton Park,

)). 7 Citations to the Joint Appendix are to the page numbers in the administrative record.

8 instruction given to FWS to refrain from issuing final decisions on applications for permits to import elephant trophies at this time.

at 6 (quoting J.A. at 2615).

Characterizing the DOI Memo as a “classic [ ] post hoc rationalization,” id. at 5, Plaintiffs

first contend that its timing alone “justifies the Court to order the record [be] supplemented by

internal decisional materials and limited discovery,” id. at 8. Not so. Because this is an

unreasonable delay case, the timing of the DOI Memo is not, by itself, dispositive of bad faith or

improper behavior. Until the agency takes the action Plaintiffs seek—the processing of the

pending elephant trophy import permit applications—there is no defined end-point to the

administrative record. As discussed, supra Section I, courts allow, and sometimes order, agencies

to supplement the record with relevant materials in such cases. See, e.g., Friends of the

Clearwater, 222 F.3d at 560–61; S.F. BayKeeper, 297 F.3d at 886; see also Clifford v. Pena,

(D.C. Cir. 1996) (affirming district court’s decision allowing an agency decision-

maker to supplement the record with a declaration providing useful background explanation of the

agency’s decision). In this case, the DOI Memo was produced prior to the production of the

administrative record and contains the rationale of a decision-maker with authority to speak on its

contents; it therefore is not necessarily an example of post hoc rationalization. See Menkes v. U.S.

Dep’t of Homeland Sec.,

(D.C. Cir. 2011) (“The ‘post hoc rationalization’ rule

is not a time barrier which freezes an agency’s exercise of its judgment . . . and bars it from further

articulation of its reasoning,” but instead “is a rule . . . forbid[ding] judges to uphold agency action

on the basis of rationales offered by anyone other than proper decisionmakers.” (internal quotation

marks and citation omitted)); cf. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,

, ___

(2020) (rejecting the reasoning of later-issued memorandum of

9 agency official explaining rescission of Deferred Action for Childhood Arrivals program as a post

hoc rationalization because the record contained no contemporaneous support for the rationale). 8

Plaintiffs next contend that “both the timing and the substance” of the DOI Memo,

combined with “the absence of any rationale prior thereto, and the admitted role President Trump’s

November 2017 tweets played in the agency’s initial decision to cease processing the[]

applications . . . strongly suggest the reasons given in the . . . [Memorandum] are pretextual.” Pls.’

Mot. at 10. Therefore, they argue, “an order from this Court requiring the agency to supplement

the Administrative Record to include internal decisional materials [is warranted] so the Court may

pass on the bona fides of the agency’s explanation for its decision.”

at 10–11. That argument

reflects a fundamental misunderstanding of this court’s role in reviewing agency action.

“When a party challenges agency action as arbitrary and capricious, the reasonableness of

the agency’s action is judged in accordance with its stated reasons.” In re Subpoena Duces Tecum

Served on the Office of the Comptroller of the Currency (Subpoena Duces Tecum),

(D.C. Cir. 1998) (citation omitted). The “actual subjective motivation of agency

decisionmakers is immaterial as a matter of law—unless there is a showing of bad faith or improper

behavior.” Id.; see also Norris & Hirshberg, Inc. v. SEC,

(D.C. Cir. 1947)

(holding that materials used as part of the agency’s “internal decisional process [] may not be

probed”). Even “[w]here there is no administrative record to review,” as may be the case in a

failure-to-act challenge, “the party challenging the agency action may inquire into the

decisionmaking process in order to create such a record, but it does not necessarily follow that the

party can also probe subjective motivations.” Subpoena Duces Tecum, 156 F.3d at 1280 (citing

8 To be clear, the court does not conclude—and does not establish as the law of the case—that the DOI Memo’s rationales are not post hoc, only that Plaintiffs have failed to make that showing based solely on when the Memo was issued.

10 Overton Park,

). Thus, absent a showing of “bad faith or improper behavior,”

Subpoena Duces Tecum, 156 F.3d at 1279, this court cannot, as Plaintiffs urge, “pass on the bona

fides of the agency’s explanation” by probing the subjective intent of decision-makers, Pls.’ Mot.

at 11.

Plaintiffs’ attempt to equate this case to the Supreme Court’s decision in Department of

Commerce v. New York is unpersuasive. See id. at 6–7. In that case, the Court considered whether

the trial court had properly found that the Secretary of Commerce’s rationale for including a

citizenship question on the 2020 Census was pretextual. See

. In a March 2018

memorandum, the Secretary announced that he had decided to reinstate a question about

citizenship on the 2020 decennial census questionnaire based on “the request of the Department of

Justice (DOJ), which sought improved citizen voting-age population for purposes of enforcing the

Voting Rights Act” (“VRA”).

. Shortly after the litigation began, however, the

Secretary “filed a supplemental memo that added[] new pertinent information to the administrative

record,” including the fact that “the Secretary had been considering the citizenship question for

some time and that Commerce had inquired whether DOJ would formally request reinstatement of

the question.”

. “That supplemental memo prompted respondents to move for both

completion of the administrative record and extra-record discovery,” both of which the trial court

granted after finding that “the existing evidence supported a prima facie showing that the VRA

rationale was pretextual.”

Although the Supreme Court found the trial court’s order granting

extra-record discovery was premature based on the record at the time, “in light of . . . the extra-

record evidence” that came later, the Court concluded the order had nevertheless been “justified.”

The Court explained,

[t]hat [later-added] evidence showed that the Secretary was determined to reinstate a citizenship question from the time he

11 entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.

“[U]nlike a typical case in which an agency may have both stated and unstated reasons for a

decision,” the Court observed, the Secretary’s “VRA enforcement rationale—the sole stated

reason—seems to have been contrived.”

(emphasis added).

This case differs from Department of Commerce in two important respects. First, far from

being uncovered by late-breaking record evidence, the purported actual reason for delaying permit

processing—President Trump’s tweets—is hidden in plain sight. The DOI Memo on its face

acknowledges the President’s November 2017 tweets. See J.A. at 2614. And after President

Trump first tweeted on the subject, then-Secretary of the Interior Ryan Zinke publicly responded,

announcing a hold on elephant trophy import permit issuance. See J.A. at 446.

Second, unlike Department of Commerce, where the Court found “the sole stated reason”

for the Secretary’s action had been “contrived,”

, here, each of the agency’s

stated reasons finds at least some support in the record. The Memo articulates four reasons for

ordering FWS to continue refraining from processing elephant trophy permit applications: 1) the

agency’s “workload and limited resources and staff,” 2) “the higher conservation risk associated

with elephant trophy imports compared to many of the other backlogged permit applications,”

3) “the controversial nature of these actions,” and 4) “ongoing litigation regarding elephant trophy

imports.” J.A. at 2615. The parties devote enormous time debating whether these explanations

are adequately supported in the record. The court views these arguments as premature. They

sound in merits contentions and thus are more appropriately vented and considered on cross- 12 motions for summary judgment. At this stage, it suffices to say that the court has reviewed the

portions of the record presented and finds that none of the reasons contained in the DOI Memo are

so lacking in credibility or so contradicted by other evidence as to suspect them to be contrived.

In other words, the record excerpts do not demonstrate bad faith or improper conduct by agency

decision-makers.

III.

For the foregoing reasons, Plaintiffs’ Motion to Take Limited Discovery and/or for an

Order to the Agency to Supplement the Record, ECF No. 23, is denied. The parties shall meet and

confer about a summary judgment briefing schedule and appear for a telephonic status conference

at 12:00 p.m. on February 17, 2021.

Dated: February 9, 2021 Amit P. Mehta United States District Court Judge

13