Ray et al v. Vilsack et al

Filing 52

ORDER GRANTING 41 Plaintiff's Motion to Compel, and GRANTING 44 Plaintiff's Motion to File Supplemental Complaint. Signed by US District Judge Terrence W. Boyle on 10/7/2013. Counsel is directed to read Order in its entirety for critical information. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 5:12-CV-212-BO

COLONEL HOSEA M. RAY, et al.,
Plaintiffs,
V.

THOMAS VILSACK, et al.,
Defendants.

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ORDER

This matter is before the Court on plaintiffs' motion to compel production of the full
administrative record [DE 41] and plaintiffs' motion for leave to file supplemental complaint
[DE 44]. For the reasons stated herein, plaintiffs motion to compel is GRANTED and plaintiffs
motion for leave to file is GRANTED.

BACKGROUND
On April 19, 2012, plaintiffs filed a complaint challenging the defendants' decision to
issue Animal Welfare Act ("A WA") licenses to roadside zoo and animal dealer Jambbas Ranch
Tours, Inc. ("Jambbas") in contravention of the AWA 7 U.S.C. § 2133. Plaintiffs contend that
because J ambbas could not demonstrate that it was in compliance with the AWA before
defendant renewed Jambbas's license that the agency's licensing decision was not in accordance
with the plain language of the A WA and therefore must be set aside under the Administrative
Procedure Act ("APA") 5 U.S.C. 706(2)(A). On July 23, 2012, plaintiffs filed a first amended
complaint. On July 25, 2012, defendants filed a motion to dismiss. On January 22, 2013, the
Court denied the motion to dismiss. Defendants filed the administrative record ("AR") on March
15, 2013 and supplemented the record on March 29 and April 12, 2013. Plaintiffs now motion to

compel the production of the full administrative record and separately motion for leave to file a
supplemental complaint.
DISCUSSION
I.

MOTION TO COMPEL.

Judicial review under the APA is to be based on "the full administrative record that was
before the Secretary at the time he made his decision." Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 420 (1971). "[A]n agency may not exclude information on the ground that
it did not 'rely' on that information in its final decision." Tafas v. Dudas, 530 F. Supp. 2d 786,
793 (E.D. Va. 2008) (citing Thompson v. United States Dep't of Labor, 885 F.2d 551, 555 (9th
Cir.1989).
Defendants argue that the records plaintiffs seek to have added to the AR pertain only to
enforcement actions and not to license renewals which are an automatic, "rubberstamping" type
transaction. This Court has previously rejected the argument offered by defendants here. The
Court held that an agency's issuance of a renewal license is not an enforcement action and is
presumptively subject to judicial review. [DE 29 at 4-6]. To accept defendants' arguments as to
what should be included in the AR would be to accept that the agency should have only
considered select documents which lend themselves to an automatic renewal process. However,
this case is a dispute about whether or not an automatic renewal process is permissible under the
A WA. Although this Court has not yet ruled on the Chevron question nor any other merits of the
case, this judicial review might eventually reach the issue of what the agency should have
considered when making its decision. The expansion of the AR does not indicate one way or
another as to how this Court will rule on the merits of the case. But to exclude information from
the AR that the agency clearly had in its possession at the time it made its determination would

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be too limiting. Should the Court find that the current renewal process is not consistent with the
A WA, it will need to review everything that was "before the secretary" not only the few
documents the agency "relied on" in making its decision. Plaintiffs have definitively shown, and
defendants' own documents support, that the agency was in possession of all of the documents
plaintiffs seek to have included at the time the renewal was considered. Although "the focal point
for judicial review should be the administrative record already in existence, not some new record
made initially in the reviewing court," Fayetteville Area Chamber ofCommerce v. Volpe, 515
F.2d 1021, 1024 (4th Cit. 1975), this Court has not created anything. The agency had all ofthe
documents at issue in its possession at the time it made its decision. Further, even if the Court is
to grant the AR a presumption of regularity, the presumption does not survive Pamlico-Tar River

Found. v. US Army Corps ofEng'gs, 329 F. Supp. 2d 600,609-10 (E.D.N.C. 2004). The
information at issue here is potential relevant evidence that the agency did not consider. See id.
The Court orders that the documents plaintiffs seek to be included in the AR be included
in addition to any other documents pertaining to Jambbas Ranch Tours, Inc. whether they be
complaints, inspection reports, renewal applications or otherwise that the agency had in its
possession at the time it made its license renewal decision. Defendants are ordered to produce a
privilege log for any portion of the AR they contend is privileged. Defendants are not ordered to
reimburse plaintiffs for fees and costs associated with this motion.
II.

MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT.

Defendants object to plaintiffs' motion to file supplemental complaint on 12(b)(6)
grounds in blatant disregard of this Court's prior ruling. [DE 29]. Defendants merely rehash the
arguments the Court rejected in denying defendants' motion to dismiss. Plaintiffs' motion does
not fail on 12(b)(6) grounds.

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Defendants also raise, for the first time, the issue of standing. Plaintiffs have met their
burden of sufficiently alleging standing at this stage of the proceedings. Plaintiffs do not bear the
burden of proving standing until summary judgment. Lujan v. Defenders of Wildlife, 504 U.S.
555,561 (1992).
Defendants concede that Col. Hosea Ray and Rikki Harrison have adequately alleged
injury-in-fact. PETA and ALDF have sufficiently alleged injury-in-fact by alleging that
defendants' actions have perceptibly impaired their ability to fulfill their mission. See Havens

Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). Plaintiffs have also adequately alleged
causation. In cases challenging agency action, a plaintiff need only show that the challenged
agency action "causes or contributes to the kinds of injuries alleged." Natural Res. Def Council

v. Watkins, 954 F.2d 974, 980 (4th Cir. 1992). Moreover it is sufficient that an agency action
authorizes the conduct that injures the plaintiff, when, as here, such conduct "would have been
illegal without that action." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,45 n.25 (1976).
Plaintiffs have also sufficiently alleged redressibility. It suffices for redressibility purposes that a
favorable ruling will result in the plaintiffs injuries "hav[ing] less probability of occurring." Pye

v. United States, 269 F.3d 459, 471 (4th Cir. 2001). Accordingly, plaintiffs' motion for leave to
file supplemental complaint is granted.
CONCLUSION
For the foregoing reasons, plaintiffs' motion to compel is GRANTED. Plaintiffs' motion
for leave to file is GRANTED. The Court ORDERS the documents plaintiffs seek to be included
in the AR, be included, in addition to any other documents pertaining to Jambbas Ranch Tours,
Inc. whether they be complaints, inspection reports, renewal applications or otherwise that the

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agency had in its possession at the time it made its license renewal decision. Defendants are
ORDERED to produce a privilege log for any portion of the AR they contend is privileged.
The clerk is directed to file plaintiffs' supplemental complaint.

SO ORDERED.
This the_!}__ day of October, 2013.

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f~~LE ~E

UNITED STATES DISTRICT JU

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