Great American Insurance Company et al v. United States of America

Filing 25

MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 8/23/2013: Plaintiffs' Motion to Compel Completion of Administrative Record 15 is denied. Mailed notice. (is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GREAT AMERICAN INSURANCE
COMPANY, as Subrogee and Assignee
of EGAN MARINE CORPORATION, and
GULF COAST MARINE, LLC, AS
AGENT FOR NORTHERN ASSURANCE
COMPANY OF AMERICA AND MARKEL
AMERICA INSURANCE COMPANY, as
Subrogee and Assignee of EGAN
MARINE CORPORATION,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

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No. 12 C 9718
Judge Robert M. Dow, Jr.
Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER
Plaintiffs Great American Insurance Company (“GAIC”), Gulf Coast Marine, LLC,
as Agent for Northern Assurance Company of America and Markel America Insurance
Company (“Gulf Coast”), as Subrogees and Assignees of Egan Marine Corporation,
filed this action seeking judicial review of the decision by the National Pollution Funds
Center (“NPFC”) to deny their claims under the Oil Pollution Act of 1990 (“OPA”), 33
U.S.C. § 2701 et seq., for reimbursement of oil removal costs following a barge
explosion on January 19, 2005.

Currently before the Court is Plaintiffs’ motion to

compel completion of the administrative record. For the reasons set forth here, the
motion is denied.

BACKGROUND
Dennis H. Egan serves as president and sole shareholder of Egan Marine
Corporation (“EMC”), which at all relevant times owned and operated the tank barge
EMC 423 and the Motor Vessel (“M/V”) LISA E. (Cmplt. ¶¶ 4, 13). On January 19,
2005, the M/V LISA E was towing the EMC 423 as it was transporting clarified slurry oil
on the Chicago Sanitary and Ship Canal. (Id. ¶¶ 9, 10, 13, 20). At approximately 4:30
p.m., there was an explosion aboard the EMC 423 that caused a fire on the barge and
ultimately resulted in the discharge of oil into the Canal. (Id. ¶¶ 20, 21). The United
States Coast Guard coordinated clean-up and removal operations at the explosion site,
with Service Welding and Shipbuilding, LLC (“SWS”), a limited liability company owned
by Mr. Egan, serving as the primary removal contractor. (Id. ¶¶ 7, 26, 27). As insurers
of EMC, Plaintiffs GAIC and Gulf Coast paid more than $8.6 million in costs associated
with the removal effort. (Id. ¶¶ 5, 6, 26, 34). The United States of America, directly and
as subrogee to claimants to the OPA’s Oil Spill Liability Trust Fund (“the Fund”), also
incurred removal costs as a result of this incident. As discussed in more detail below,
EMC, SWS and Plaintiffs sought to recover their removal costs from the Fund through
administrative claims to the NPFC initiated in January 2008, while the United States
attempted to recover its removal costs from EMC in an affirmative lawsuit filed in June
2008.
1.

Claim for Reimbursement and Initial Denial (February 2008)

On January 11, 2008, Plaintiffs submitted claims to the NPFC seeking
reimbursement of removal costs incurred on behalf of EMC and SWS.1 In support of
1

As noted, EMC and SWS were also claimants, but for simplicity, the Court refers only to
Plaintiffs. (Cmplt. ¶¶ 35, 38).

2

these claims, Plaintiffs argued that EMC was entitled to full exoneration from liability and
recovery of all clean-up and removal costs under 33 U.S.C. § 2703 because the incident
was solely caused by acts or omissions of third parties. Alternatively, they argued that
EMC was entitled to limited liability of $2,000,000, and hence recovery of removal costs
over this amount, under 33 U.S.C. § 2704(a)(1)(B). (Id. ¶¶ 35, 36, 38). This limitation of
liability applies unless an incident was proximately caused by the gross negligence or
willful misconduct of, or a violation of an applicable federal safety, construction or
operating regulation by, the responsible party or its agent. 33 U.S.C. § 2704(a)(1).
Plaintiffs also maintained that SWS’s expenses should be reimbursed because the
company was not a “responsible party” under the Act. (Id. ¶ 42).
The NPFC denied the claims on February 20, 2008, finding (in part) that EMC
was guilty of gross negligence because one of its employees had caused the explosion
by using a propane torch near an open standpipe. (Id. ¶¶ 43, 45). This decision,
however, was based on a non-final draft of the Coast Guard’s Report of Investigation,
prepared by Lt. Mark Hamilton. (Id. ¶ 44). When the NPFC discovered that it had
considered a draft report, it rescinded the decision, (id. ¶ 46), and “ordered a de novo
adjudication.” (Doc. 21, at 3).
2.

The United States’ Attempt to Recover Removal Costs (2008-2011)

On June 2, 2008, the United States filed suit against EMC in the Northern District
of Illinois seeking to recover removal costs it incurred as a result of the oil spill. (Cmplt.
¶ 47). Specifically, the United States argued that EMC was not entitled to limited liability
and was instead fully liable for all costs because the explosion resulted from the
company’s negligence, gross negligence and/or violations of applicable federal safety

3

regulations (i.e., an EMC employee’s alleged use of a propane torch near an open
standpipe). (Id. ¶¶ 48, 49). While this case was pending, the NPFC held Plaintiffs’
claims in abeyance, “contending that the decision on the issue of limitation of liability
was central to the litigation, and would be decided by the court.” (Id. ¶ 53).
After a bench trial, Judge Leinenweber issued a decision on October 13, 2011,
finding that the United States had failed to prove that EMC was guilty of gross
negligence, willful misconduct or violation of any regulation that caused or contributed to
the explosion on the EMC 423 and the resulting oil spill. (Id. ¶ 51). The court explained
that “[b]ecause the Government has proved neither that a propane torch was being
used nor the standpipe was open this Court cannot accept the Government’s theory of
the cause of the explosion.” United States v. Egan Marine Corp., No. 08 C 3160, 2011
WL 8144393, at *3 (N.D. Ill. Oct. 13, 2011). As a result, “the limitation of liability does
apply in this case, and the Government is not entitled to recover additional funds from
EMC.” Id. at *4 (emphasis in original).
3.

Second Claim Denial (June 2012)

On June 11, 2012 (about eight months after Judge Leinenweber’s ruling), the
NPFC denied Plaintiffs’ claims for reimbursement of removal costs incurred on behalf of
EMC and SWS. (Cmplt. ¶ 55). The NPFC stated that Plaintiffs and their insureds failed
to meet their burden of proving by a preponderance of the evidence the actual cause of
the explosion, including the source of ignition. As a result, the NPFC said it could not
“determine that the claimant has demonstrated entitlement to a limit of liability where
exceptions may apply that are dependent on the circumstances of the incident that bear
on proximate causation.” (Doc. 15-5, at 5-6; Cmplt. ¶ 57). With respect to SWS, the

4

NPFC found that given Mr. Egan’s ownership of both EMC and SWS, SWS “ha[d] not
established its third party claimant status because there [wa]s evidence that Service
Welding may have been an owner or operator at the time of the incident and therefore a
responsible party.” (Doc. 15-5, at 7; Cmplt. ¶ 61).
Attached to the NPFC’s claim denial was an “Appendix A” of “Documentation and
Evidence Reviewed and Considered” in reaching the decision. (Doc. 15-5, at 9-19).
This appendix included a list of unrelated violations committed by several EMC barges
from 1994 through 2004, only one of which pertained to the EMC 423. (Id. at 18-19).
The appendix also cited to testimony from Lt. Cmdr. Dean Firing of the Coast Guard
that EMC did not have a “positive” reputation.

(Id. at 15).

Finally, Appendix A

summarized testimony from nearly every deponent in the lawsuit filed by the United
States (No. 08 C 3160), but omitted any reference to eyewitness Bobby Griffin, who saw
the explosion from the Cicero Avenue Bridge.

(Id. at 12-17; Doc. 15 ¶ 21).

The

appendix did cursorily acknowledge the presence of a second eyewitness, William
Arrington, but said nothing about his testimony that prior to the explosion, he did not see
anyone on the barge, or anyone using a propane torch. (Doc. 15-5, at 14; Doc. 15 ¶
22).
4.

Reconsideration and Final Decision by NPFC (September 2012)

Plaintiffs submitted a timely Request for Reconsideration, and on September 21,
2012, the NPFC issued a new decision agreeing with Plaintiffs’ objections to the use of
Appendix A. (Cmplt. ¶¶ 65, 66; Doc. 15-8, at 6). Specifically, the NPFC stated:
[T]o the extent the appendix includes conjecture as to what violations may
have occurred if the cause of the explosion had been established, it is
irrelevant to the determination. In hindsight, it is an unnecessary appendix
and to the extent it has created confusion, it was ill-advised. As Claimants
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rightly state, the appendix failed to include a list of all evidence available
for review, including the deposition testimony of an eyewitness. In
reconsidering the first determination, the NPFC reviewed again all
evidence in the record.
(Doc. 15-8, at 6). Nevertheless, after “perform[ing] a de novo review of the complete
claim submission and the entire record,” (id. at 4), the NPFC affirmed that Plaintiffs were
not entitled to limited liability under the OPA because “the cause of the explosion
remains unknown” and “it is fundamental that the cause of an incident must be
explained in order to demonstrate entitlement to a limitation of liability.” (Id. at 5). The
NPFC rejected the argument that collateral estoppel required a finding of limited liability
based on Judge Leinenweber’s ruling given the “differing evidentiary standards, burden
of proof, identity of the parties and nature of the relief sought….” (Doc. 21-2, at 5). The
agency instead found that the Court had not decided whether Plaintiffs had
“demonstrated an entitlement to a limitation of liability” – only that “the Government had
failed to prove its theory of the cause of the incident by a preponderance of the
evidence, and therefore could not recover costs from [EMC].” (Id.).
With respect to SWS, the NPFC reversed its earlier decision denying the claim
and granted the company’s request for reimbursement. (Cmplt. ¶ 67). The NPFC
explained that “new documentation provided by the Claimant establishes that Service
Welding, as an entity distinct from Egan Marine, was not an owner or operator of the
barge . . . at the time of the incident and is not a responsible party.” (Doc. 15-8, at 9).
5.

Plaintiffs’ Lawsuit and Motion to Compel

Plaintiffs filed this lawsuit on December 6, 2012 seeking judicial review of the
NPFC’s decision pursuant to the Administrative Procedures Act (“APA”), 5 U.S.C. § 701
et seq.

They have now filed a motion to compel arguing that they are entitled to
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discovery of several categories of documents because: (1) the administrative record in
this case is incomplete; and/or (2) the United States has acted in bad faith in
adjudicating their claims. (Doc. 15 ¶¶ 30, 37, 38).2 Plaintiffs also ask that the United
States produce a privilege log listing any documents it has withheld from the
administrative record on privilege grounds. (Id. ¶¶ 42, 43).
DISCUSSION
In cases seeking judicial review of an administrative decision, “the focal point . . .
should be the administrative record already in existence.” Camp v. Pitts, 411 U.S. 138,
142 (1973).

This record should contain “all documents and materials directly or

indirectly considered by the agency” in making the challenged decision. Miami Nation
of Indians of Indiana v. Babbitt, 979 F. Supp. 771, 777 (N.D. Ind. 1996). Notably, “the
agency determines what constitutes the ‘whole’ administrative record because [i]t is the
agency that did the considering, and that therefore is in a position to indicate initially
which of the materials were before it – namely, were directly or indirectly considered.”
Pacific Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp.
2d 1, 5 (D.D.C. 2006) (internal quotations omitted). Indeed, “absent clear evidence to
the contrary, an agency is entitled to a strong presumption of regularity, that it properly
designated the administrative record.” Id.

2

The requested documents include: (1) internal communications among NPFC personnel;
(2) communications between the NPFC and other agencies, including divisions of the Coast
Guard; (3) memoranda, notes or summaries contained within the agency file in this matter; (4)
drafts of the Coast Guard Investigation Reports and decisions issued in this matter, including
comments on such drafts; (5) documents concerning meetings held by the NPFC or other
agencies relating to this matter; (6) internal guidelines or policies for adjudicating claims; and (7)
any other documents or materials relied upon by the NPFC in any way to reach its decision.
(Doc. 15, at 15).

7

Even though “[d]iscovery is rarely proper in the judicial review of administrative
action,” exceptions do exist, as “summarized in Animal Defense Council v. Hodel, 840
F.2d 1432, 1436 (9th Cir. 1988), amended, 867 F.2d 1244 (1989).” USA Group Loan
Servs., Inc. v. Riley, 82 F.3d 708, 715 (7th Cir. 1996). These include: (1) “the agency
has relied on documents or materials not included in the record,” Animal Defense, 867
F.2d at 1244; and (2) “plaintiffs make a showing of agency bad faith.” Animal Defense,
840 F.2d at 1437. To overcome the strong presumption of regularity accorded to an
agency, there must be a similarly “strong” or “substantial” showing that one of these
exceptions applies. Amfac Resorts, L.L.C. v. U.S. Dept. of the Interior, 143 F. Supp. 2d
7, 12 (D.D.C. 2001).
A.

Scope of Administrative Record

Plaintiffs claim that discovery is appropriate in this case because the NPFC relied
on information not contained in the administrative record.

(Doc. 15 ¶ 39).

This

argument is based on Plaintiffs’ belief that the NPFC withheld from the record
“communicat[ions] with other divisions of the Coast Guard regarding the investigation
and cause of the explosion.” (Id.). Plaintiffs do not have specific evidence of such
communications, but instead speculate that someone from the NPFC must have spoken
with the Coast Guard’s Lt. Hamilton because the agency somehow managed to “obtain[]
a draft copy of [his] Report of Investigation . . . before the report was even made final.”
(Id.). Plaintiffs also posit that the NPFC communicated with Lt. Cmdr. Firing since the
agency’s June 11, 2012 decision cited to his deposition testimony regarding EMC’s
negative reputation. (Id.).

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The Court is not persuaded that Plaintiffs have made a sufficient showing that the
administrative record is missing material considered by the NPFC.

As reflected in

communications during the meet-and-confer process, the United States explained that
the NPFC obtained the draft investigation report not by communicating with Lt.
Hamilton, but “as the result of a document-management error within the Coast Guard.”
(Doc. 21, at 8). The Coast Guard operates a Marine Information and Law Enforcement
database from which the NPFC “may draw information regarding a casualty
investigation.” (Id.). A member of the Coast Guard mistakenly uploaded Lt. Hamilton’s
draft report without final approval from the Commandant, and “[t]he first NPFC
adjudicator, believing this draft to be final because it was in the database, used it in his
adjudication of the claim.” (Id.).
Thereafter, Lt. Hamilton was deposed concerning communications with the
NPFC. He indicated that he did speak with someone, possibly from the NPFC, but only
about a concern that the agency had released the non-final report. (Hamilton Dep., at
192-93). The NPFC later withdrew the decision that was based on the draft report and
reviewed Plaintiffs’ claim de novo. This sequence of events in no way demonstrates
that the NPFC communicated with Lt. Hamilton on any topic relevant to that de novo
review.3 As for Lt. Cmdr. Firing, Plaintiffs fail to explain how the NPFC’s use of his
deposition testimony in any way demonstrates that the agency communicated with him.
See Styrene Info. and Research Ctr., Inc. v. Sebelius, 851 F. Supp. 2d 57, 63 (D.D.C.
2012) (“Conclusory statements will not suffice; rather, the plaintiff must identify
reasonable, non-speculative grounds for its belief that the documents were considered
3

Given that the NPFC made its subsequent claim determination without considering the
draft report, there is no merit to Plaintiffs’ objection that the draft nonetheless constitutes part of
the administrative record. (Doc. 15 ¶ 9).

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by the agency and not included in the record.”) (internal quotations omitted). Compare
Miami Nation of Indians of Indiana, 979 F. Supp. at 777 (finding record incomplete and
granting motion for discovery where the United States itself had included “extensive
field notes and logs of field interviews, handwritten notes and data, and certain other
notes and analyses” in the administrative record, but omitted similar types of drafts and
notes sought by the plaintiffs).
In sum, Plaintiffs have not shown that the administrative record in this case is
incomplete, and their request that the United States produce documents on that basis is
denied.
B.

Bad Faith

Plaintiffs argue that they are also entitled to the requested discovery because the
NPFC has handled their claims in bad faith. “Courts have imposed a high standard on
plaintiffs seeking to demonstrate bad faith,” Tafas v. Dudas, 530 F. Supp. 2d 786, 798
(E.D. Va. 2008), and there must be “a reasonable factual basis for [such a] contention.”
Apex Constr. Co. v. United States, 719 F. Supp. 1144, 1147 (D. Mass. 1989). In that
regard, “it is well established that naked assertions of bad faith will not suffice to open
the door to discovery in an APA action.” New York v. Salazar, 701 F. Supp. 2d 224,
240 (N.D.N.Y. 2010) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 420 (1971)). At the same time, “[w]hat constitutes a strong preliminary showing of
bad faith or improper behavior . . . is a matter that the courts have been reluctant to
define, preferring in the main simply to declare that on the facts of a given case, the
showing has not, or occasionally has, been made.” Id. at 241 (quoting Tummino v. Von
Eschenbach, 427 F. Supp. 2d 212, 230 (E.D.N.Y. 2006)).

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Here, Plaintiffs first attempt to demonstrate bad faith through the following
procedural history. The NPFC initially denied Plaintiffs’ claims based in part on an
unapproved draft of the Coast Guard’s Report of Investigation, which indicated that the
explosion aboard the EMC 423 had been caused by a crew member’s use of a propane
torch. (Doc. 22, at 4). The NPFC withdrew that decision, but also filed suit against
EMC (No. 08 C 3160) arguing that the company was guilty of gross negligence because
a crew member had used a propane torch. While that federal case was pending, the
NPFC held Plaintiffs’ claims in abeyance to await a ruling. When the district court
decided in favor of EMC due to insufficient evidence that anyone had used a propane
torch, however, the NPFC disregarded that finding and denied Plaintiffs’ claims for
another reason – namely, their inability to prove the actual cause of the explosion. (Id.
at 4-5). Plaintiffs maintain that “[t]he United States’ refusal to accept the decision [in
Case No. 08 C 3160] that EMC is entitled to limitation of liability, and its denial of
Plaintiffs’ claims after receiving that decision is strong evidence of bad faith on the part
of the United States.” (Id. at 6).
The flaw in Plaintiffs’ argument is that no court has yet determined whether the
United States was required to apply the findings of Case No. 08 C 3160 to Plaintiffs’
claims for reimbursement. Nor has there been any determination regarding the validity
of the United States’ position that Plaintiffs must show the actual cause of the explosion
in order to secure limited liability. The parties clearly have different interpretations of the
applicable OPA provisions and the proper standard of review for limited liability claims,
and the district judge must decide these issues rather than this Court. In the absence of

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such rulings, this Court cannot say that the NPFC’s decisions and legal positions are
meritless and thus constitute strong evidence of bad faith.
Plaintiffs insist that they have other evidence of bad faith in the form of the
NPFC’s reliance on irrelevant information in the June 11, 2012 claim denial. (Doc. 15
¶¶ 19-22; Doc. 22, at 7).

There is no dispute that Appendix A to that decision

“references a number of matters that have absolutely nothing to do with the cause of the
explosion, or Plaintiffs’ right to recover on their claims.” (Doc. 22, at 7). For example,
the appendix includes a list of violations committed by several EMC barges from 1994
through 2004, none of which relates to the January 19, 2005 explosion on the EMC 423
at issue here. The appendix also cites testimony about EMC not having a “positive”
reputation,

and

selectively

excludes

potentially

exculpatory

testimony

from

eyewitnesses to the explosion. (Id.). In Plaintiffs’ view, this evidence shows that the
Coast Guard was prejudiced against EMC, and the NPFC acted in bad faith by
“purposely ignor[ing] any evidence that is favorable to Plaintiffs.” (Doc. 15 ¶¶ 20, 22).
The problem for Plaintiffs is that the NPFC subsequently conceded that Appendix
A was improper and conducted a de novo review of the evidence. Plaintiffs may be
dissatisfied with the results of that new review but this does not suffice to show bad
faith. Tafas, 530 F. Supp. 2d at 798 (citing Sierra Club v. U.S. Army Corps of Eng’rs,
701 F.2d 1011, 1044 (2d Cir. 1983)) (“Importantly, disagreement with an agency’s
ultimate decision, or with its interpretation of the factual materials before it, is not bad
faith.”). If anything, the decision to conduct a de novo review rather than ignore the
issues raised by Plaintiffs in the Request for Reconsideration suggests the absence of
bad faith.

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Plaintiffs finally argue that the NPFC’s handling of the claim by SWS shows bias
and bad faith against Mr. Egan, the owner of both SWS and EMC. Plaintiffs believe that
from the outset, they submitted more than enough documentation to establish that SWS
is independent from EMC and not a responsible party under the OPA. Yet the NPFC
initially denied SWS’s claim, noting that: (1) SWS and EMC were insured under the
same marine insurance policy; (2) Dennis Egan is the principal of both companies, such
that “the lines here are blurred as to what exactly is the relationship between these
entities”; and (3) SWS became the managing owner of the M/V LISA E after the January
19, 2005 explosion and clean-up. (Doc. 22, at 8; Doc. 15-5, at 7). Plaintiffs maintain
that “[t]he NPFC’s reliance on ownership of the LISA E years after the explosion in order
to assert that SWS may have been a responsible party at the time of the explosion is
suspect at best, and demonstrates that the NPFC would take any position, including a
position completely unsupported by the evidence, to justify denying the claims of any
company associated with the owner of EMC.” (Doc. 22, at 9).
The Court cannot agree that this example constitutes a strong showing of bad
faith given that the NPFC subsequently granted and paid SWS’s claim on
reconsideration. Plaintiffs may believe that their initial documentation sufficed to prove
that SWS was not a responsible party, but the fact that the NPFC disagreed with that
assessment is not evidence that it was biased against Mr. Egan or his companies. See,
e.g., Ervin & Assocs., Inc. v. Cisneros, No. 96-2164, 1996 WL 622152, at *2 (D.D.C.
Oct. 22, 1996) (denying request for discovery where the plaintiff “has not provided any
basis for doubting the good faith of the administrative objective and plan, other than his
own allegations and skeptical interpretation of the record.”).

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Viewing the record as a whole, Plaintiffs have not made a strong showing of bad
faith on the part of the NPFC sufficient to justify their request for discovery.
C.

Privilege Log

Plaintiffs claim that even in the absence of additional discovery, the United States
should be required to provide a privilege log identifying any documents that have been
withheld from the record based on the deliberative-process privilege. (Doc. 15 ¶ 42;
Doc. 22, at 9). The United States responds that it “has not withheld any documents
considered directly or indirectly by the agency decision maker on the basis of privilege,”
and that the NPFC’s “internal deliberations are not a part of the record in the first
instance.”

(Doc. 21, at 14).

Plaintiffs do not dispute that “neither the internal

deliberative process of the agency nor the mental processes of individual agency
members” are proper components of the administrative record.

Portland Audubon

Soc’y v. Endangered Species Committee, 984 F.2d 1534, 1549 (9th Cir. 1993).
Nevertheless, Plaintiffs maintain that the United States should be required to list these
documents on a privilege log because parties are not required to accept “on faith” that
“an unidentified document is privileged and, therefore, not part of the record.” (Doc. 22,
at 10-11).
In support of this position, Plaintiffs direct the Court to Black Warrior Riverkeeper,
Inc. v. Alabama Dept. of Transp., No. 2:11-CV-267-WKW, 2013 U.S. Dist. LEXIS 75766
(M.D. Ala. May 30, 2013), where the plaintiff charged the defendants with “fail[ing] to
comply with their statutory duty to prepare an SEIS [supplemental environmental impact
statement]” setting forth the effects of a highway project on the local environment. Id. at
*2-3. The defendants did not dispute that “the administrative record on [such] a failure-

14

to-act claim cannot ‘be limited to the record as it existed at any single point in time,
because there is no final agency action to demarcate the limits of the record.’” Id. at *3
(quoting Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000)). Yet
the defendants failed to address “just how far the proper scope of the administrative
record on a failure-to-act claim extends.” Id. at *5. As a result, the court instructed that
“at the very least, Defendants must compile a record that includes whatever documents
are relevant to that claim.” Id.
The plaintiff in that case asked that the defendants be required to provide a
privilege log to “facilitat[e] an assessment of the universe of documents being withheld
[and] the validity of Defendants’ justifications for withholding.” Id. (internal quotations
omitted). The court trusted that the defendants would not “inappropriately invoke the
deliberative-process privilege,” but concluded that “asking [the plaintiff] to share the faith
would belie the adversarial nature of American-style litigation.”

Id.

As the court

reasoned, “[a] privilege log is the surest way of holding Defendants to th[eir] burden” of
proving that a privilege actually applies. Id. at *6.
This case is easily distinguishable from Black Warrior Riverkeeper because it
does not involve a failure-to-act claim where the scope of the record is unclear.
Whereas the defendants in Black Warrior Riverkeeper had some discretion in deciding
which documents were relevant to the plaintiff’s claim and thus part of the record, the
United States here faced a certain and defined administrative record, which they
produced in its entirety. Several courts have found that in such circumstances, “[t]he
law is clear: [since] predecisional and deliberative documents ‘are not part of the
administrative record to begin with,’ . . . they ‘do not need to be logged as withheld from

15

the administrative record.’” Oceana, Inc. v. Locke, 634 F. Supp. 2d 49, 52 (D.D.C.
2009), rev’d on other grounds, 670 F.3d 1238 (D.C. Cir. 2011) (quoting National Ass’n
of Chain Drug Stores v. U.S. Dep’t of Health & Human Servs., 631 F. Supp. 2d 23, 27
(D.D.C. 2009)). See also American Petroleum Tankers Parent, LLC v. United States,
__ F. Supp. 2d __, 2013 WL 3462575, at *8 (D.D.C. July 10, 2013) (“[T]he agency need
not provide a privilege log of the documents withheld pursuant to the privilege.”).
Plaintiffs disagree with Oceana, but the Court finds its holding consistent with the
two stated rationales for excluding deliberative documents from the administrative
record. First, “judicial review of agency action should be based on an agency’s stated
justification, not the predecisional process that led up to the final, articulated decision.”
Tafas, 530 F. Supp. 2d at 794 (internal quotations omitted). In addition, “[r]equiring the
inclusion of deliberative materials in the administrative record would pressure agencies
to conduct internal discussions with judicial review in mind, rendering ‘agency
proceedings . . . useless both to the agency and to the courts.’” Id. (quoting San Luis
Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26, 44-45
(D.C. Cir. 1986)).

In this Court’s view, requiring the United States to identify and

describe on a privilege log all of the deliberative documents would invite speculation into
an agency’s predecisional process and potentially undermine the limited nature of
review available under the APA.
Plaintiffs’ reliance on California Native Plant Soc’y v. U.S. Environmental
Protection Agency, 251 F.R.D. 408 (N.D. Cal. 2008), is also misplaced. The court in
California Native Plant Soc’y had previously granted “limited discovery in order to
provide the factual basis required to establish” that a “Conceptual Strategy” for a

16

development project constituted a “final agency action.”

251 F.R.D. at 410.

In

responding to the plaintiffs’ discovery requests, the agencies “claimed the deliberative
process privilege for a number of documents,” which they identified on privilege logs.
Id.

The court found the logs inadequate, however, and required the agencies to

“supplement the[m] with more detailed information as to how the documents fit into the
deliberative process.” Id. at 412-14. See also Miami Nation of Indians of Indiana, 979
F. Supp. at 77-778 (where court found administrative record incomplete and ordered
additional discovery, the United States had to “specify which materials it contends the
deliberative process privilege protects with specificity”). Since this Court has declined to
order any additional discovery in this case, and the United States has not withheld any
documents from the administrative record, there is no need for a privilege log.
CONCLUSION
For the reasons stated above, Plaintiffs’ Motion to Compel Completion of
Administrative Record (15) is denied.
ENTER:

Dated: August 23, 2013

_____________________________
SHEILA FINNEGAN

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