                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 AMERICAN PETROLEUM TANKERS
 PARENT, LLC,

    Plaintiff,
                                                        Civil Action No. 12-1165 (CKK)
           v.

 UNITED STATES OF AMERICA, et al.,

    Defendants.


                                 MEMORANDUM OPINION
                                     (July 10, 2013)

       Plaintiff American Petroleum Tankers Parent, LLC, pursuant to the Administrative

Procedure Act (“APA”), 5 U.S.C. 701 et seq., challenges the Maritime Administrator’s decision

denying the Plaintiff’s applications for loan guarantees intended to allow the Plaintiff to

refinance loans used to construct five petroleum tankers. Presently before the Court is the

Plaintiff’s [60] Motion to Compel Filing of the Full Administrative Record and for Leave to

Conduct Limited Discovery. Upon consideration of the pleadings,1 the relevant legal authorities,

and the record as a whole, the Court finds the Defendants must supplement the Administrative

Record to include two speeches by the Secretary of Defense cited by the Maritime Administrator

in his denial of the Plaintiff’s revised application, but the Plaintiff’s remaining grounds for

supplementation and discovery are unpersuasive.         Accordingly, the Plaintiff’s motion is

GRANTED IN PART and DENIED IN PART as set forth below.

                                      I. BACKGROUND

       American Petroleum Tankers Parent (“APT”) is majority-owned by investment funds

       1
           Pl.’s Mot., ECF No. [60]; Defs.’ Opp’n, ECF No. [64]; Pl.’s Reply, ECF No. [65].
managed by affiliates of the Blackstone Group, L.P., a publicly traded private equity company.

Suppl. Compl., ECF No. [14], ¶ 2. APT owns five 49,000 deadweight ton petroleum tankers,

delivered to APT between January 2009 and December 2010. Id. at ¶ 1. Each of the five vessels

is U.S.-flagged and employed in the coastwise trade of the United States. Id. Two of the tankers

have (unspecified) specially designed features approved by the United State Navy and are

currently on charter to the Navy’s Military Sealift Command. Id.

       A.      Title XI Loan Guarantee Program

       Title XI of the Merchant Marine Act of 1936 authorizes the Maritime Administration, a

division of the Department of Transportation, to guarantee loans intended to finance the

construction, reconstruction, or reconditioning of vessels that, among other things, are designed

principally for commercial use in the coastwise trade.                46 U.S.C. §§ 53702(a),

53706(a)(1)(A)(i).2 Guarantees may also be issued for refinancing an existing obligation issued

to finance the construction, reconstruction, or reconditioning of such vessels. Id. § 53706(a)(5).

Applications for Title XI guarantees must be approved or denied within 270 days after the

Administrator receives the signed application, though the applicant may request that the time for

consideration be extended for up to two years from the date on which the application was

received. Id. § 53703(a)(1), (2).

       The statute sets forth a number criteria an application must satisfy in order to be eligible

for a loan guarantee. The obligor must have “the ability, experience, financial resources, and

other qualifications necessary for the adequate operation and maintenance of each vessel that

will serve as security for the guarantee.” 46 U.S.C. § 53707(a). The property for which the



       2
          Title XI also authorizes the Secretary of Commerce to guarantee loans in connection
with fishing vessels and fishery facilities. 46 U.S.C. §§ 53701(13), 53702(a).
                                                  2
obligation will be executed must be “economically sound” in light of various factors, including

“the market potential for employment of the vessel over the life of the guarantee,” and “projected

revenues and expenses associated with employment of the vessel.” Id. § 53708(a)(2), (3). The

Administrator may employ a third party expert to analyze “risk factors associated with markets,

technology, or financial structures.”    Id. § 53708(d).     The statute also provides that the

Administrator must give priority to vessels that, among other things, are suitable for service as a

naval auxiliary in the time of war or national emergency. 46 U.S.C. § 53706(c).

       Pursuant to Department of Transportation Order 2301.1B, after the Maritime

Administrator completes his review of the application, the application must be referred to the

Department of Transportation Credit Council for review. Defs.’ Mot. to Dismiss Ex. A, ECF

No. [18-2], ¶ 9(a). The Credit Council is comprised of various officials within the Department of

Transportation, including the General Counsel, the Federal Highway Administrator, the Federal

Railroad Administrator, and the Maritime Administrator. Id. at ¶ 5. In addition to setting the

Department’s credit policies and procedures, the Credit Council makes recommendations to

agencies within the Department regarding applications for various credit assistance programs,

including the Title XI loan program. Id. at ¶¶ 3, 9(a). With respect to Title XI applications, the

Credit Council provides “a recommendation regarding the financial viability of the proposed

project and the merits of the requested credit assistance and its consistency with departmental

credit policies.” Id. at ¶ 9(a). The Maritime Administrator is not bound by the Credit Council’s

recommendation, and ultimately approves or denies the application. Id.

       B.      Plaintiff’s Title XI Application and Litigation History

       APT submitted an application for a Title XI guarantee on August 30, 2010, seeking loan

guarantees to refinance the $470 million debt incurred to construct the tankers owned by APT.

                                                 3
Decl. of R. Kurz, ECF No. [60-4], ¶ 10 (indicating the initial application sought $470 million in

guarantees).    The Maritime Administration accepted APT’s application as complete on

December 2010. Suppl. Compl. ¶ 2. The Plaintiff reduced the requested guarantee amount to

$400 million in September 2011. Kurz Decl. ¶ 19. The Credit Council initially recommended

against the Maritime Administration retaining a third party financial expert to review the

application, but subsequently recommended that the Administration proceed with the third party

expert analysis. See A.R. 2868-2872. The Maritime Administration retained Scully Capital

Services, Inc., to perform the external review in November 2011. Kurz Decl. ¶¶ 21-22.3

       The Plaintiff’s application was discussed during the June 12 and July 10, 2012, Credit

Council meetings. Kurz Decl. ¶¶ 29, 35. Fearing that the Maritime Administration would not

act on its application by the statutorily mandated two-year deadline, the Plaintiff filed suit in July

2012 seeking an emergency writ of mandamus to compel the Administrator to grant or deny the

application by August 31, 2012. See generally Compl., ECF No. [1]. After an on-the-record

conference call with the Court, the Defendants agreed to issue a decision on the Plaintiff’s

application by August 31, 2012. Jt. Stip., ECF No. [7]. The Plaintiff accordingly withdrew its

motion for emergency relief. Id.

       On July 28, 2012, the Plaintiff modified its application in relevant part to further reduce

the guarantee amount to $340 million. Suppl. Compl. ¶ 5. Two days later, the Administrator

denied the Plaintiff’s original application, acknowledging that it did not consider the July 28

revisions to the application because a review of the amended application would require “a

comprehensive financial analysis” that could not be completed by the August 31 deadline.



       3
          The parties and hereinafter the Court refer to the third party expert as the Independent
Financial Analyst, or “IFA.”
                                                4
Defs.’ Mot. to Dismiss Ex. B (8/1/12 Decision Ltr.), ECF No. [18-3], at 4. The Administrator

explained that the denial of the Plaintiff’s original application was based on several factors: (1)

“[the] project is not economically sound overall”; (2) it seeks refinancing for two particularly

vulnerable vessels”; and (3) “it seeks to refinance at least three ships over one year old at the

time of closing.” Id. Additionally, the Administrator explained that “the amount of the project

to be refinanced[] . . . if granted, would consume almost all of the remaining monies available for

the ship financing program.” Id.

       Following the initial denial of the Plaintiff’s application, the Administrator agreed to

consider the Plaintiff’s amended application.       Jt. Mot. to Stay, ECF No. [9], ¶ 9.        The

Administrator denied the amended application on November 9, 2012. Defs.’ Mot. to Dismiss

Ex. C (11/9/12 Decision Ltr.), ECF No. [18-4]. In short, the Administrator explained that the

amended application was denied because it “remains not economically sound overall,” “seeks

refinancing of two particularly vulnerable vessels,” “seeks to refinance at last three ships over

one year old,” and if granted, the guarantees sought by the Plaintiffs would “consume almost all

of the remaining monies available for the ship financing program.” Id. at 4.

       The Plaintiff supplemented its complaint in this matter to reflect the denial of both its

original and modified applications.     See generally Suppl. Compl.       The first count of the

supplemental complaint alleges that the Administrator’s decisions denying the Plaintiff’s

applications were arbitrary, capricious, or otherwise contrary to law in violation of 5 U.S.C.

§ 706(2). Specifically, the Plaintiff challenges (1) the Administrator’s consideration of the

recommendation of the Credit Council; (2) the finding that the amended application is not

economically sound; (3) the finding that the amended application does not warrant priority; and

(4) the decision to deny the amended application in part because it would exhaust available

                                                5
funds. Suppl. Compl. ¶¶ 102-07. The second count of the supplemental complaint seeks a

“remedy for the Secretary’s unlawful interference,” pursuant to the APA, namely

       an order declaring that the DOT Credit Council has no lawful or valid function
       with respect to Title XI applications, directing the Secretary to cease and desist
       from interfering with the Administrator’s performance of his ministerial and
       discretionary responsibilities regarding Title XI applications in general and APT’s
       application in particular, and directing the Administrator . . . to cease and desist
       from submitting such applications to the DOT Credit Council and to grant or deny
       APT’s application without regard to the opinions, objections, recommendations or
       authorization of the Credit Council.

Suppl. Compl. at 39. Finally, in the third count of the supplemental complaint, the Plaintiff

alleges that “[p]ast interference by the Secretary . . . and the DOT Credit Council with the

Administrator’s performance . . . has so infected and prejudiced the deliberative process used by,

and the judgment of, the incumbent Administrator that he is incapable of fairly assessing the

merits of APT’s Title XI application.” Id. at ¶ 115. The Plaintiff thus asked the Court to order

the Administrator to recuse himself from consideration of the Plaintiff’s application on remand,

and requiring a de novo review of the amended application by a new official within the Maritime

Administration. Id. at 39-40.

       Upon the Defendant’s motion to dismiss, the Court determined that the Plaintiff has

standing to challenge the Maritime Administrator’s denial of the applications, and that the

Administrator’s decision on an application for a loan guarantee is not committed to agency

discretion by law and is thus reviewable by the Court. 5/6/13 Mem. Op., ECF No. [25], at 8-15.

The Court further concluded that the Defendants failed to identify any statutory or other

authority by which Secretary of Transportation can require the Maritime Administrator to submit

applications for Title XI loan guarantees to the Credit Council to obtain the Council’s

recommendation before the Administrator may grant or deny the application. Id. at 15-20.

Finally, the Court found that the Plaintiff failed to state a claim for relief or establish the Court’s
                                                  6
subject matter jurisdiction with respect to its request that the current Maritime Administrator be

recused from considering the Plaintiff’s application if the case is remanded to the agency for

further consideration. Id. at 20-21.

       The Court set a briefing schedule for the parties’ cross-motions for summary judgment,

and also set a schedule for briefing any motions regarding the scope of the Administrative

Record. 6/3/13 Order, ECF No. [28]. The Plaintiff subsequently filed the present motion to

compel, which is now ripe for consideration by the Court.

                                       II. LEGAL STANDARD

       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 (1971), abrogated on other grounds by

Califano v. Sanders, 430 U.S. 99 (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). “[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

                                                7
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. Guttierez, 503

F. Supp. 2d 366, 369 (D.D.C. 2007). The agency may not exclude information from the record

simply because it did not “rely” on the excluded information in its final decision. Maritel, Inc. v.

Collins, 422 F.Supp.2d 188, 196 (D.D.C. 2006). Rather, “a complete administrative record

should include all materials that might have influenced the agency’s decision[.]” Amfac Resorts,

143 F. Supp. 2d at 12 (citations omitted). “[W]hile it is true that data and analysis compiled by

subordinates may be properly part of the administrative record despite not having actually passed

before the eyes of the Secretary,” to be included in the Administrative Record, “the data or

analysis must be sufficiently integral to the final analysis that was considered by the

[Administrator], and the [Administrator’s] reliance thereon sufficiently heavy, so as to suggest

that the decisionmaker constructively considered it.” Banner Health v. Sebelius, --- F. Supp. 2d -

--, 2013 WL 2112169, at *21 (D.D.C. 2013).

                                       III. DISCUSSION

       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

                                                 8
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). Much of the Plaintiff’s

motion focuses on the first type of “supplementation”—that is, documents the Plaintiff contends

were considered by the Administrator in making his decision but that have been excluded from

the Administrative Record. The Plaintiff also challenges the Defendants’ invocation of the

deliberative process privilege as grounds for redacting certain documents in the Administrative

Record and withholding certain documents from the record in their entirety. Finally, the Plaintiff

seeks discovery regarding the process through which the Maritime Administrator made his

decision to deny the Plaintiff’s applications. The Court addresses each category in turn.

       A.      Documents Purportedly Considered by the Agency but Excluded from the
               Administrative Record

       The Plaintiff seeks to compel the Defendants to supplement the Administrative Record to

include five categories of documents the Plaintiff contends were considered by the Maritime

Administrator in reaching his decision denying the Plaintiff’s applications: (1) memoranda

prepared to reflect analysis required by certain Maritime Administration Orders; (2) periodic

progress reports to the Credit Council regarding the status of pending applications and weekly

activity reports within the Maritime Administration; (3) communications between the Maritime

Administration and Scully Capital; (4) communications between the Maritime Administration

and Military Sealift Command; and (5) certain communications between employees or agents of

the Plaintiff and individuals within the Maritime Administration.4 Pl.’s Mot. at 12-15. In


       4
          Within this section of its motion, the Plaintiff also argued that the Defendants should be
required to supplement the Administrative Record to include “a memorandum for the Credit
Council regarding priorities for Title XI financing.” Pl.’s Mot. at 13. The Defendants indicated
that this memorandum was excluded from the Administrative Record pursuant to the deliberative
                                                  9
seeking to force the Defendants to supplement the Administrative Record with documents that

were purportedly before the agency, the Plaintiff 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, 2013 WL 2112169 at *10.

Rather, the Plaintiff 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, the Plaintiff

must offer “reasonable, non-speculative” grounds for their belief that the documents were

directly or indirectly considered by the Maritime Administrator. Banner Health, 2013 WL

2112169, at *10. If the Plaintiff “can present such proof showing that [the Administrator] did

not include materials that were part of its record, whether by design or accident, then

supplementation is appropriate.” Nat’l Mining Ass’n v. Jackson, 856 F. Supp. 2d 150, 156

(D.D.C. 2012) (citation omitted).

               1.     Memoranda Reflecting Analysis Required by Maritime Administration
                      Orders

       With respect to the first category of documents, the Defendants indicated that the

“memoranda and presentations prepared by MarAd’s offices and personnel in connection with

APT’s application have been produced in the administrative record (although some have been

redacted in part[)],” and that a “formal memorandum” similar to what the Plaintiff describes in

process privilege. The Plaintiff does not dispute that the memorandum is privileged, but
suggests in the Reply that “the drafts provide further evidence of bad faith and improper conduct
and should be included in the AR.” Pl.’s Reply at 15. Therefore, the Court addresses this
memorandum only in the context of the Plaintiff’s request for discovery, infra, Section III.C.

                                               10
its motion does not exist. Defs.’ Opp’n at 7; Decl. of D. Ladd, ECF No. [64-1], ¶ 5.5 The

Plaintiff argues that this “only serves to highlight the need for discovery and supplementation of

the AR with the other documents identified by APT.” Pl.’s Reply at 15. The Court addresses the

Plaintiff’s request for discovery infra, but based on the Defendants’ representation that the

document at issue does not exist and the lack of a response from the Plaintiff, the request to

supplement the Administrative Record with memoranda reflecting certain analysis required by

Maritime Administrative Orders is denied.

               2.     Periodic Progress Reports & Weekly Activity Reports

       Turning to the Plaintiff’s request to supplement the record with “periodic progress

reports” and “weekly activity reports” prepared by the Maritime Administration, the Defendants

argue that “[t]hese documents, to the extent they exist, were merely generated for the purpose of

apprising relevant individuals of the status of various agency matters (including, potentially,

APT). There is no reason to believe that they were ‘considered’ by the Maritime Administrator

in rendering his decisions[.]” Defs.’ Opp’n at 9. In responding to this contention, the Plaintiff

cites case law regarding the scope of the Administrative Record, but offers no evidence to

suggest the Maritime Administrator actually considered these documents, or that the documents

were “sufficiently integral to the final analysis that was considered by the [Maritime

Administrator], and the [Maritime Administrator’s] reliance thereon sufficiently heavy, so as to

suggest that the decisionmaker constructively considered” these documents. Banner Health,

2013 WL 2112169, at *21. The Court agrees that based on the Plaintiff’s own description of the

documents, it is unlikely that the Maritime Administrator considered the reports, constructively

       5
          Daniel C. Ladd was the Director of the Office of Marine Financing in the Maritime
Administration from September 2011 until September 2012, and oversaw the processing of Title
XI applications. Ladd Decl. ¶ 2.
                                            11
or otherwise.6 Accordingly, the Plaintiff’s motion to compel the Defendants to supplement the

Administrative Record with periodic progress reports and weekly activity reports is denied.

               3.      Communications between the Maritime Administration & Scully Capital

       The third category of documents includes communications between the Maritime

Administration and Scully Capital, including “the retainer agreement between MarAd and

Scully, as well as MarAd’s instructions to Scully as to its duties and responsibilities.” Pl.’s Mot.

at 13. The Plaintiff suggests documents evidencing communications between the Maritime

Administration and Scully Capital must exist because (1) Scully Capital’s final June 2012 report

addressed some of the concerns regarding the draft report which the Plaintiff raised in a

presentation to various Maritime Administration and Credit Council staff; and (2) Scully Capital

produced a supplemental report concerning the Plaintiff’s amended application. Id. at 14. The

Defendants contend that these documents “relate to MarAd’s decisions in only the most

tangential of ways,” and “[w]ritten communications between MarAd and Scully, to the extent

they exist, were [] not considered by the Maritime Administrator; rather, Scully’s reports

themselves were considered.”      Defs.’ Opp’n at 9-10.      The Plaintiff does not dispute this

contention, and offers no evidence to show the Maritime Administrator relied on

communications between the Administration and Scully Capital. Therefore, there is no basis for

ordering the Defendants to supplement the Administrative Record with these communications

and documents.




       6
           Furthermore, because there is no evidence to suggest the Maritime Administrator
considered these documents, the fact that the Defendants may not have searched for the
documents is not “evidence that defendants have prepared an AR that is not full and complete”
as the Plaintiff contends. Pl.’s Reply at 15.
                                              12
              4.      Communications between the Maritime Administration and Military
                      Sealift Command

       The Defendant also seeks to supplement the Administrative Record with communications

between the Maritime Administration and the Military Sealift Command, as well as two public

speeches by then-Secretary of Defense Leon Panetta that were cited by the Maritime

Administration in the November 9, 2012, letter denying the Plaintiff’s revised application. With

respect to the speeches, the Defendants notes the speeches are publicly available, and that the

Defendants do not object to the Plaintiff citing the speeches in its summary judgment briefs.

Defs.’ Opp’n at 12, n.2. “As to the other communications referenced,” the Defendants argue that

the Plaintiff “offers no evidence beyond mere speculation that any such written communications

existed or that they properly would be considered part of the administrative record in this

matter.” Id. at 12. Once again, the Plaintiff does not dispute the Defendant’s contention, but

rather suggests that the Defendants’ response “further demonstrates the need for discovery.”

Pl.’s Reply at 18.7 Accordingly, the Plaintiff’s motion to compel the Defendant to supplement

the administrative record with communications between the Maritime Administration and the

Military Sealift Command is denied. However, because the Defendants do not dispute that the

decision letters from the Maritime Administrator explicitly relied on the public speeches in

denying the Plaintiff’s revised application, the Defendants shall be required to supplement the

Administrative Record with the text of those speeches. See Banner Health, 2013 WL 2112169,

at *27.8


       7
         The Plaintiff offers no explanation as to why discovery is warranted if such
communications do not exist, see Pl.’s Reply at 18, therefore the Court does not discuss these
communications in the context of the Plaintiff’s request for discovery.
       8
          “The Secretary does not dispute that Tables 8a and 8b belong in the administrative
record. Rather, the Secretary asserts that Plaintiffs’ request is meaningless . . . [because] the
                                               13
               5.      Communications between the Plaintiff & Maritime Administration

       Fifth and finally, the Plaintiff seeks to supplement the Administrative Record with certain

communications between employees or agents of the Plaintiff and individuals within the

Maritime Administration, specifically Exhibits 3 through 10 to the Declaration of Joseph Click.

Initially, the Court notes that Exhibits 6 and 7 are in the Administrative Record from pages 1715

to 1718 and 2450 to 2451, respectively. The presentation included in Exhibit 10 is also in the

Administrative Record at pages 2573 to 2579. The cover email transmitting the presentation to

the Maritime Administrator does not appear to be in the Administrative Record, but the email

itself does not discuss the merits of the Plaintiff’s application. Rather, the email addresses the

Plaintiff’s strategy for moving forward with its application, providing no reason to believe that

the cover email itself was considered by the Maritime Administrator. Decl. of J. Click, ECF No.

[60-2], Ex. 10 at 1.

       With respect to the remaining exhibits, the Defendants emphasize “there is simply no

indication” that any of these documents “were considered by the Maritime Administrator,

directly or indirectly, when he rendered his decisions. Indeed, the sheer number of

communications sent by APT to MarAd throughout the course of its application made it virtually

impossible for the Maritime Administrator to have considered each and every such submission.”

Defs.’ Opp’n at 10-11. The Court agrees. Exhibits 3 and 4 are comprised of emails between the

Maritime Administrator and the Plaintiff, but address scheduling issues and ways to approach the

Credit Council regarding the application.       Neither exhibit addresses the substance of the


contents of the Federal Register are subject to judicial notice and can be considered in the Court's
review. . . . [T]hat is not the point. The point is that Tables 8a and 8b are admittedly part of the
administrative record in this case, and the Court shall therefore compel the Secretary to file them
as part of the administrative record and for the Court's convenient reference.” Banner Health,
2013 WL 2112169, at *27.
                                                  14
Plaintiff’s application. Thus, although the Maritime Administrator received the emails, the

Plaintiff offers no basis for concluding that he considered these emails—which do not relate to

the merits of the Plaintiff’s application—in deciding to deny the Plaintiff’s applications.

Similarly, Exhibit 5 is a letter from the Plaintiff to the Chairman of the Credit Council requesting

a meeting to discuss the Plaintiff’s application, and Exhibit 8 is an email from the Plaintiff to the

Associate Maritime Administrator of Business and Financial Development in which the Plaintiff

requests a “debriefing” following a Credit Council meeting. Neither the letter nor the emails

were addressed to the Maritime Administrator, and the Plaintiff offers no evidence to suggest the

Administrator considered either exhibit in reaching his decision. Finally, Exhibit 9 is a series of

emails between the Plaintiff and the Associate Maritime Administrator in which the Associate

Maritime Administrator asks a question in connection with the preparations for a Credit Council

Working Group meeting. The Plaintiff also provides some unsolicited advice regarding what the

administration should emphasize to the Credit Council regarding the Plaintiff’s application.

Once again, the Plaintiff offers no evidence or argument to suggest the Maritime Administrator

considered these emails, or relied heavily on the content of these emails such that they should be

deemed to be part of what the Administrators “considered” in reach his decision.

       B.      Redactions & Withholdings Pursuant to the Deliberative Process Privilege

       The Plaintiff also challenges the Defendants’ redaction and withholding of certain

documents from the Administrative Record pursuant to the deliberative process privilege. It is

well established in this District that materials protected by the deliberative process privilege are

not part of the Administrative Record for purposes of review of agency action. Banner Health,

2013 WL 2112169, at *15 (citing Amfac Resorts, 143 F. Supp. 2d at 13 (“[D]eliberative

intraagency memoranda and other such records are ordinarily privileged, and need not be

                                                 15
included in the record.”)). As a corollary to this principle, the agency need not provide a

privilege log of the documents withheld pursuant to the privilege. Oceana, Inc. v. Locke, 634 F.

Supp. 2d 49, 52-53 (D.D.C. 2009), reversed on other grounds, 670 F.3d 1238 (D.C. Cir. 2011)

(collecting cases). “Two requirements are essential to the deliberative process privilege: (1) the

material must be predecisional and (2) it must be deliberative.” In re Sealed Case, 121 F.3d 729,

737 (D.C. Cir. 1997). A document is predecisional “if it was generated before the adoption of an

agency policy and deliberative if it reflects the give-and-take of the consultative process.”

Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (citation

omitted). Documents including “recommendations, draft documents, proposals, suggestions, and

other subjective documents which reflect the personal opinions of the writer rather than the

policy of the agency,” are considered deliberative. Coastal States Gas Corp. v. Dep’t of Energy,

617 F.2d 854, 866 (D.C. Cir. 1980). Recommendations from consulting bodies may also fall

within the scope of the deliberative process privilege. Citizens for Responsibility & Ethics in

Wa. v. U.S. Dep’t of Homeland Sec., 514 F. Supp. 2d 36, 44 (D.D.C. 2007).

       The Plaintiff objects to the redactions to the following documents in the Administrative

Record made pursuant to the deliberative process privilege: (1) “three short memorandums [sic]

that staff prepared, two of which concern requesting permission from the Credit Council to retain

an independent financial advisor,” AR 2866-2867, 2870-2871; (2) a memorandum concerning

recommendations made by the Independent Financial Advisor in his draft January 2012 report,

AR 2888-2891; (3) spreadsheets and accompanying e-mails of projected financial results for the

Plaintiff’s vessels during the guarantee period, AR 2899-2903, 2915-2916; and (4) PowerPoint

presentations made by the Maritime Administration to the Credit Council, AR 2917-2977. Pl.’s

Mot. at 15-16. The Defendants’ Opposition indicates that it also withheld draft versions of a

                                               16
memorandum from the Maritime Administration for the Credit Council regarding priorities for

XI   funding,       internal   communications    and    recommendations    between    the   Maritime

Administration staff and offices, and communications between the Maritime Administration and

Scully Capitol pursuant to the deliberative process privilege. Defs.’ Opp’n at 12-13. Apart from

the Plaintiff’s general arguments regarding the Defendants’ invocation of the privilege, the

Plaintiff does not dispute that the documents the Defendants indicated were withheld are in fact

privileged. Accordingly, the Court begins with the parties’ arguments regarding the general

applicability of the privilege in this case, and then addresses the specific redactions challenged

by the Plaintiff.

                1.        General Applicability of the Privilege

                          a.      Invocation of the Privilege

        As a threshold issue, for the first time in its Reply brief, the Plaintiff argues that the

Defendants cannot rely on the deliberative process privilege to redact or withhold documents

“because they have failed to properly invoke the privilege.” Pl.’s Reply at 11; see also id. at 14

(“Neither a plaintiff nor a court can possibly assess the legitimacy of an agency’s claim of privilege

under these well-established rules if they have no idea that documents are being withheld, much less

what the purportedly privileged documents are.”).          This argument appears nowhere in the

Plaintiff’s initial motion, despite the fact that the Plaintiff knew the Defendants were relying on

the deliberative process privilege as the basis for redacting certain documents before the Plaintiff

even filed its motion. See Pl.’s Mot. at 15 (“Defendants have redacted large portions of the few

documents in the AR that were created by defendants, claiming that the redacted portions contain

information protected by the deliberative process privilege.”). The Court shall not consider an

argument raised for the first time in the Plaintiff’s Reply, depriving the Defendants of the

                                                   17
opportunity to respond. See, e.g., Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir.

2008) (“We need not consider this argument because plaintiffs . . . raised it for the first time in

their reply brief.”); McBride v. Merrell Dow & Pharm., 800 F.2d 1208, 1211 (D.C. Cir. 1986)

(“Considering an argument advanced for the first time in a reply brief . . . is not only unfair to an

appellee, but also entails the risk of an improvident or ill-advised opinion on the legal issues

tendered.”) (citation omitted). Therefore, the Defendants are entitled to rely on the deliberative

process privilege, and are not required to submit a log of privileged documents.

                       b.      Bad faith/Improper Motive

       The Plaintiff also argues that the deliberative process privilege does not apply in this case

because “its action both questions the defendants’ subjective intent and challenges the decision-

making process itself.” Pl.’s Mot. at 23.

       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. Agency deliberations not part of the record are deemed immaterial. That
       is because 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.

In re Subpoena Duces Tecum, 156 F.3d 1279, 1279-80 (D.C. Cir. 1998) (citations omitted). The

Plaintiff must make a “strong showing of bad faith” to justify supplementing the Administrative

Record. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (citation omitted).

The Plaintiff does not attempt to make this showing in the section of its motion dedicated to the

deliberative process privilege, but rather assumes that challenging the Defendants’ subjective

intent in the Supplemental Complaint is sufficient. Moreover, as discussed infra, the Plaintiff’s

“evidence” of bad faith and improper motive falls short of the “strong showing” of bad faith and

improper motive necessary to warrant discovery in this administrative action. Infra, Section

III.C. For the same reasons, the Plaintiff has failed to make the strong showing of bad faith and
                                                18
improper motive necessary to overcome the deliberative process privilege.

                        c.      Pretext

        The Plaintiff also suggests that “[t]he redacted portions, moreover, must be disclosed

because they will confirm that defendant’s stated rationale in denying APT’s applications was

merely a pretext masking its true basis.” Pl.’s Mot. at 24. The Plaintiff cites Public Citizen v.

Heckler, 653 F. Supp. 1229 (D.D.C. 1986), for the proposition that it need only make a “prima

facie showing” that “the agency’s stated rationale is but a pretext masking the true basis of its

decision,” to overcome the invocation of the deliberative process privilege. Id. at 1237 (quoting

San Luis Obispo, 751 F.2d at 1325). It is unclear that the “prima facie” standard articulated in

San Luis Obispo is still applicable in light of the D.C. Circuit’s subsequent decisions in In re

subpoena duces tecum, 156 F.3d at 1279-80, and Ludwig, 82 F.3d at 1095. However, assuming

the Plaintiff need only make a prima facie showing of pretext to overcome the deliberative

process privilege, the Plaintiff fails to do so in this case.

        The information redacted in this case was “known to [the agency] at the time of [its]

decisionmaking [and] are directly related to the decision made.” Public Citizen, 653 F. Supp. at

1237.    However, the Defendants indicated—and the Plaintiff does not dispute—that the

redactions include information that is both favorable and unfavorable to the agency’s decision.

Defs.’ Opp’n at 19 & n.5; cf. Public Citizen, 653 F. Supp. at 1237 (discussing extra-record

documents that were “adverse to the agency’s position”). The Plaintiff argues that “[o]ther than

the irrational reasoning in the August 1, and November 9, 2012 decision letters, there is nothing in

the AR to support the Administrator’s stated reasons for denying APT’s application.” Pl.’s Mot. at

26 (citation omitted); see also id. (discussing redactions to memoranda prepared by Maritime

Administration staff for the Maritime Administrator). These redactions and alleged omissions do not

                                                   19
demonstrate “pretext,” but rather go to whether the record is sufficient to allow the Court to

effectively review the Administrator’s decision.        Id. (“The MarAd staff analysis on which the

Administrator relied is not further identified; all staff e-mails and memorandums are so heavily

redacted as to be unhelpful in divining their analyses and conclusions.”). The Plaintiff fails to

articulate why a poorly supported decision, without more, is evidence of pretext. Even if a lack of

adequate support in the record is sufficient to establish pretext, the Court can only make a

determination as to the adequacy of the record upon review of the parties’ dispositive motions.

                        d.      Misconduct

        The Plaintiff suggests that “the deliberative process privilege disappears altogether when

there is any reason to believe government misconduct occurred.” Pl.’s Mot. at 27 (quoting Alexander

v. FBI, 186 F.R.D. 170, 177 (D.D.C. 1999)) (citation omitted). However, the Plaintiff fails to

articulate what misconduct the Defendants purportedly engaged in, and merely refers the Court to the

section of the Plaintiff’s motion seeking discovery on the grounds of “bad faith or improper motive.”

Id. (“As next shown with respect to APT’s request to conduct limited discovery, there is more than

just “any reason” to believe that defendants engaged in bad faith and misconduct, and the

deliberative process privilege should be denied here for those same reasons.”). “To invoke the

government-misconduct exception, the party seeking discovery must provide an adequate factual

basis for believing that the requested discovery would shed light upon government misconduct.”

Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250, 257 (D.D.C. 2003), reversed in

part and vacated in part on other grounds by In re England, 375 F.3d 1169 (D.C. Cir. 2004) (citing

Judicial Watch of Fla. v. Dep’t of Justice, 102 F. Supp. 2d 6, 15-16 (D.D.C. 2000)).

        The allegations in this case do not rise to the level of “misconduct” in cases in which courts

have found the deliberative process privilege should not apply, or at least were sufficient to trigger in

camera review by the court. The Plaintiff makes no attempt to distinguish between its allegations of

                                                   20
“misconduct” as compared to purposed bad faith or improper motive on the part of the Defendants,

but the purported “bad faith” in this case—that is, the Credit Council convincing the Administrator to

deny the Plaintiff’s applications because the Plaintiff is owned by a private equity firm—is a far cry

from misconduct. See, e.g., Alexander, 186 F.R.D. at 171 (allegations the “FBI improperly handed

over to the White House hundreds of FBI files of former political appointees and government

employees from the Reagan and Bush Administrations”); Convertino v. United States Dep’t of

Justice, 674 F. Supp. 2d 97, 100 (D.D.C. 2009) (allegations that the Department of Justice leaked

information regarding an investigation into purported prosecutorial misconduct by an Assistant

United States Attorney); Tri-State Hosp. Supply Corp. v. United States, 226 F.R.D. 118 (D.D.C.

2005) (allegations of malicious prosecution). “The deliberative process privilege would soon be

meaningless, if all someone seeking information otherwise protected under the privilege had to

establish is that there was disagreement within the governmental entity at some point in the

decisionmaking process.” Hinckley v. United States, 140 F.3d 277, 285 (D.C. Cir. 1998). The

Plaintiff’s invocation of “misconduct” appears to be nothing more than an attempt to end-run the

more stringent showing the Plaintiff must make to demonstrate bad faith or improper motive

sufficient to overcome the deliberative process privilege.

               2.      Non-Deliberative Information

       The Plaintiff argues unspecified portions of the Defendants’ redactions are likely not

protected by the deliberative process privilege because the information is (1) factual, and/or

(2) part of a determination of benefits. However, the Plaintiff does not identify any specific

portions of documents, but rather asks the Court to conduct an in camera review of the redacted

documents and determine for itself whether any of the information is protected. Based on the

Plaintiff’s own description of the documents and confirmed by the Court’s review of the

documents as presently redacted, facially the documents are pre-decisional and deliberative. The
                                               21
Plaintiff’s objection to the redaction of factual information would seem to apply to the third and

fourth categories of documents, but as set forth below, the Plaintiff’s objection is unpersuasive.

The Defendants have the burden to prove the privilege applies, but bare assertions by the

Plaintiff that unspecified redactions may not be privileged are insufficient to warrant an in

camera review or a more fulsome showing on the part of the Defendants. See San Luis Obispo

Mothers for Peace v. Nuclear Regulatory Comm’n, 789 F.2d 26, 45 (D.C. Cir. 1986)

(“Petitioners must make the requisite showing before we will look at the transcripts. We will not

examine the transcripts to determine if we may examine the transcripts.”).

                       a.     Factual Material

       Initially, the Plaintiff argues that “factual materials” fall outside the scope of the

deliberative process privilege; “to be protected the material must comprise part of the

‘deliberative process.’” Pl.’s Mot. at 16-17 (quoting McClelland v. Andrus, 606 F.2d 1278, 1287

(D.C. Cir. 1979). In the context of the Freedom of Information Act, the D.C. Circuit explained

that the applicability of the privilege “does not turn on whether the material is purely factual in

nature or whether it is already in the public domain, but rather on whether the selection or

organization of facts is part of an agency’s deliberative process.” Ancient Coin Collectors Guild

v. U.S. Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011).9 The Ancient Coin court held that

certain factual information was properly withheld because “[t]he factual summaries contained in

the CPAC reports were culled by the Committee from the much larger universe of facts

presented to it and reflect an exercise of judgment as to what issues are most relevant to the pre-



       9
          As the Plaintiff notes, cases discussing the deliberative process privilege in the context
of Exemption 5 of the Freedom of Information Act are instructive because “in effect Exemption
5 is co-extensive with the common law discovery privileges.” McClelland v. Andrus, 606 F.2d
1278, 1287 n.54 (D.C. Cir. 1979).
                                                 22
decisional findings and recommendations.” Id. (citation omitted).

       The third category of redactions at issue in the Plaintiff’s motion reflect communications

within the Maritime Administration discussing financial models of the Plaintiff’s application

using different scenarios, and attach spreadsheets reflecting the analysis.    AR 2899, 2915.

Similarly, the fourth category of redactions withheld analysis presented by the Maritime

Administration to the Credit Council regarding the Plaintiff’s application. See, e.g., 2927-29

(redacting slides entitled “MARAD Expected Case,” “IFA Stress Case,” and “MARAD-IFA

Stress Case”). This slide on its face reflects the Maritime Administration culling and performing

its own analysis of the data provided by the Defendant, in essence creating new information as

part of the deliberative process. This analysis falls squarely within the privilege afforded to

documents reflecting an agency’s “exercise of discretion and judgment calls.” Ancient Coin, 641

F.3d at 513 (citation omitted).

       The Plaintiff’s reliance on American Radio Relay League, Inc. v. Federal

Communications Commission, 524 F.3d 227 (D.C. Cir. 2008), is misplaced. First, the Plaintiff

offers no explanation or legal authority that case law concerning the withholding of documents in

the context of informal rulemaking should apply to adjudicative proceedings. A second case

cited by the Plaintiff, Independent United States Tanker Owners Committee v. Lewis, 690 F.2d

908 (D.C. Cir. 1982), demonstrates why adjudicative and informal rulemaking proceedings are

not equivalent for purposes of public disclosure of agency analysis.        As the Lewis court

explained,

       A staff report was produced. It differed in fundamental respects from prior staff
       reports to which interested parties directed their comments. (Misdirected their
       comments, we now should say.) MarAd relied on the report in making a decision
       with substantial economic consequences. But the decision was published without
       any explanation. The report remained buried in the bowels of the agency.

                                               23
Id. at 926. Public notice and comment is meaningless if the public is commenting on an outdated

position from the agency. The Lewis court acknowledged that “[a]n agency is not obliged to

publish a tentative opinion for comment,” but “where an agency’s analytic task begins rather

than ends with a set of forecasts, sound practice would seem to dictate disclosure of those

forecasts so that interested parties can comment upon the conclusions properly to be drawn from

them.” Id. Here, as in all adjudications, the “agency’s analytic task” began with the Plaintiff’s

application. The need for effective public notice and comment is irrelevant in the context of

adjudicative proceedings.

       Second, the American Radio court explained that “[w]here, as here, an agency’s

determination is based upon a complex mix of controversial and uncommented upon data and

calculations, there is no APA precedent allowing an agency to cherry-pick a study on which it

has chosen to rely in part.” Id. at 237. The Defendants are not suggesting in this case that the

Administrator did not rely on the redacted portions of his staff’s analysis.          Rather, the

Administrator argues that the redacted analysis of factual data performed by his staff is protected

by the deliberative process privilege.     On this record, the redacted “factual” data in the

Administrative Record was properly withheld pursuant to the deliberative process privilege.

                      b.      Determination of Benefits

       The Plaintiff further contends that “[t]he deliberative process privilege does not apply to

documents produced by the agency’s staff during its analysis and evaluation of facts necessary to

adjudicate an applicant’s eligibility for government benefits.” Pl.’s Mot. at 17. The Plaintiff

offers no authority for this proposition, apart from a citation to the Attorney General’s Manual on

the Administrative Procedure Act from 1947, explaining the dichotomy between rule making and

adjudication under the APA. Id. Not only does this argument lack any basis in the law, it would

                                                24
wholly eliminate the deliberative process privilege in most adjudicative proceedings before

executive agencies, which by definition often determine whether or not an individual or a party is

eligible for government credit, funds, or other benefits.            The fact that the Maritime

Administrator’s decisions determined whether the Plaintiff would be eligible for credit assistance

from the government is not itself sufficient to overcome the deliberative process privilege.

               3.      Post-Decisional Information

       The Plaintiff further argues that a series of PowerPoint presentations from the Maritime

Administration to the Credit Council and associated working group, which were redacted in part

in the Administrative Record, are not protected by the deliberative process privilege because the

presentations are not “pre-decisional.” Pl.’s Mot. at 21. The Plaintiff argues that based on the

Court’s previous finding that the Secretary cannot require the Maritime Administration to seek

the opinion of the Credit Council, “the ‘proposed’ dispositions in MarAd’s presentations to the

Credit Council (and its working group) in effect constituted the Administrator’s final decisions, and

the required presentations to the Credit Council were both ultra vires and post-decisional.” Pl.’s

Mot. at 24.

       Though the Court concluded that the Defendant failed to identify any authority permitting the

Secretary of Transportation to require the Maritime Administration to consult with the Credit Council

before issuing a decision on a Title XI loan application, the Court did not hold (as the Plaintiff

suggests) that the Credit Council has no lawful role in the Title XI application process. There is

nothing to suggest that the Maritime Administration could not, for example, seek the opinion of the

Credit Council on his own accord before granting or denying an application. Thus, the Court’s prior

ruling has no effect on the issue of whether a document is “predecisional.” Moreover, a finding that

the Maritime Administrator made a “final” decision regarding the Plaintiff’s applications before


                                                 25
consulting with the Credit Council would be counter-factual because at the time the Adminsitrator’s

decisions in this case were finalized, Maritime Order 2301.1B required the Maritime Administrator

to consult with the Credit Council before making his final decision. Documents reflecting the

Maritime Administration’s position before consulting with the Credit Council would

“prematurely disclose the views of the agency,” and are thus protected by the deliberative

process privilege. Coastal States Gas, 617 F.2d at 867.

       C.      Request for Discovery

       The Plaintiff asks the Court for permission to obtain discovery apart from the

Administrative Record, including documents from the Secretary of Transportation and Credit

Council, and deposition testimony of David Matsuda, the Maritime Administrator, George

Zoukee, and Daniel Ladd, the Director of the Maritime Administrator’s Office of Marine

Financing. Pl.’s Mot. at 32-33. The “basic rule” of Administrative Procedure Act is that “a

court’s review of an agency’s decision is confined to the administrative record.” Common Sense

Salmon Recovery v. Evans, 217 F. Supp. 2d 17, 20 (D.D.C. 2002). Discovery is permitted “only

in two circumstances”: (1) upon “a strong showing of bad faith or improper motive”; and (2) “in

the rare case in which the record is so bare as to frustrate effective judicial review.” Cmty. for

Creative Non-Violence v. Lujan, 908 F.2d 992, 998 (D.C. Cir. 1990).

               1.     Record Sufficient for Effective Judicial Review

       First, the Plaintiff argues that because the recommendations of the Credit Council

influenced the Maritime Administrator’s decisions on the Plaintiff’s applications, absent an

administrative record prepared and filed by the Secretary of Transportation and/or the Credit

Council—as opposed to the Maritime Administration—“it is impossible for the Court to review

the Council’s influential recommendations.” Pl.’s Mot. at 28-29. This argument confuses two

                                                26
different inquiries. If the Credit Council or staff for the Secretary of Transportation created

documents that the Maritime Administrator considered in reaching his decision, those documents

by definition must be part of the Administrative Record in this case. But the Plaintiff does not

suggest in this section of its brief that the Maritime Administration omitted any such documents

from the record. The Plaintiff offers no authority for the proposition that an agency involved in

the decisionmaking process, but that is not the ultimate decisionmaker, must submit its own

administrative record. The Administrative Record is not “insufficient” merely because it omits

documents that were considered by a different agency that provided advice to the agency

responsible for making the ultimate decision.

       In Saratoga Development Corp. v. United States, 21 F.3d 445 (D.C. Cir. 1994), the

plaintiff made the same argument American Petroleum Tanker makes here. The decisionmaker

in Saratoga, the Pennsylvania Avenue Development Corporation (“PADC”), was required by

statute to consult with the General Services Administration (“GSA”) and the International

Cultural and Trade Center Commission before selecting a developer for a particular project. 21

F.3d at 457. Saratoga argued that the PADC submitted an “incomplete” administrative record to

the District Court because the record did not include technical reports prepared by the GSA and

the Commission regarding the proposals from various developers. Id. The D.C. Circuit rejected

Saratoga’s contention that the exclusion of these reports from the record was in error “for the

simple reason that they were never part of the record in the first place; they were neither

prepared for nor provided to the PADC or its staff.” Id. Furthermore, the D.C. Circuit explicitly

rejected Saratoga’s contention that because of these omissions, discovery was necessary for

effective judicial review. Id. at 458. The Plaintiff’s contention in this case is indistinguishable

from the arguments rejected by the D.C. Circuit in Saratoga. In any event, the Court is not in a

                                                27
position to determine whether the Administrative Record is so bare as to preclude effective

judicial review until the parties’ dispositive motions are fully briefed.

                2.      Bad Faith or Improper Motive

        Second the Plaintiff asserts that “there is strong evidence that the Credit Council engaged

in improper behavior” insofar as “[t]he evidence establishes that . . . Credit Council participation in

the processing of APT’s application was anything but advisory.” Pl.’s Mot. at 29. For the first time

in its Reply, the Plaintiff articulates its theory of bad faith/improper motive, asserting that

        APT has made a strong showing that (1) the Credit Council exercised controlling
        authority over the Administrator with respect to APT’s application throughout the
        administrative process, (2) the Credit Council denied APT’s application and
        directed the Administrator to deny it, [and] (3) the Credit Council did so based on
        its impermissible bias against private equity firms[.]

Pl.’s Reply at 9. In sum, the Plaintiff relies on four pieces of “evidence” to show the Credit

Council’s improper exercise of control over the Maritime Administrator: (1) the Maritime

Administration’s interactions with the Credit Council; (2) the purportedly unusual procedures

employed by the Maritime Administration in this case; (3) communications between the Maritime

Administration and the IFA; and (4) statements by the Maritime Administrator.                To show an

“impermissible bias,” the Plaintiff relies solely on statements from the Credit Council regarding the

fact the Plaintiff is owned by private equity firms. Viewed together, this evidence falls short of the

“strong showing” necessary to warrant discovery in an APA action.

                        a.       Credit Council’s Exercise of Authority Vis a Vis the Maritime
                                 Administrator

        The Plaintiff relies on several aspects of the review process in this case in an attempt

show improper influence by the Credit Council.                The Plaintiff notes that the Maritime

Administration made eight presentations to Credit Council and/or Credit Council working group

between May and November 2012, including presentations the day before the Maritime

                                                    28
Administrator’s decisions were issued in August and November 2012. Pl.’s Mot. at 30. The

Plaintiff further alleges that two of the presentations, from May 31 and June 12 respectively,

indicated the Maritime Administration recommended granted the Plaintiff’s application. Id.

Similarly, the Plaintiff notes that the Credit Council’s policy is not to recommend that the

Administration retain an IFA if the Administration believes the application ultimately will be

denied. Id. at 30-31. Ultimately the Plaintiff’s argument boils down to the fact that the Maritime

Administration changed its mind regarding whether the Plaintiff’s applications should be

approved after consultation with the Credit Council.

        Discussing the deliberative process privilege, the D.C. Circuit in Hinckley noted that

“governmental decisionmakers will frequently disagree and debate many options before they

reach any final conclusion.” 140 F.3d at 285. Moreover,

        the simple fact that Hinckley's treatment team and the Hospital’s Review Board
        came to different conclusions does not suggest, in our view, any improper
        motivations on the part of the Review Board. As indicated above, Hinckley’s
        treatment team and the Review Board have different functions and concerns.
        Whereas members of the treatment team are directly responsible for Hinckley’s
        therapy and are charged with advocating the treatment program that they believe
        will best advance Hinckley’s therapy, the Hospital Review Board is drawn from
        all sections of the Hospital and considers a wider array of issues, including most
        notably the danger that a conditional release would pose to the community.

Id. at 286. Likewise here, the Maritime Administration and the Credit Council have different

functions and concerns. The Maritime Administration administers the Title XI program in order

“to promote the growth and modernization of the U.S. merchant marine.” Maritime Admin.,

Title     XI      Federal      Ship     Financing       Program:       Program        Description

ttp://www.marad.dot.gov/ships_shipping_landing_page/title_xi_home/title_xi_prog_description/

title_xi_prog_description.htm (last accessed July 8, 2013). The Credit Council is comprised of

officials from across the Department of Transportation, and is concerned not only with individual

                                               29
applications for credit assistance, but also the overall status of loan portfolios for the Department

of Transportation’s credit programs, including the Title XI program. Defs.’ Ex. A at 3-4. The

fact that the Maritime Administration’s initial position with respect to the Plaintiff’s application

differed from the ultimate decision reached after extensive consultation with the Credit Council

“does not suggest . . . any improper motivations.” Hinckley, 140 F.3d at 286; see Fed. Commc’n

Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 514 (holding the APA “makes no

distinction, however, between initial agency action and subsequent agency action undoing or

revising that action”).10

        The Plaintiff also argues that the Maritime Administration’s procedures for reviewing the

Plaintiff’s applications deviated from the normal procedures, casting suspicion on the Credit

Council’s role in the review process. According to Jean McKeever, a former employee of the

Maritime Administration who was involved in the Title XI program, once a Title XI application

is complete, “the program office asks the other offices to provide final comments on it in the area

of their expertise. Those comments are presented to the program office in memorandum form.”

Decl. of J. McKeever, ECF No. [60-3], ¶ 3. These memoranda are purportedly later incorporated

into a “recommendation for action” provided to the Maritime Administrator for a final decision

on the application. Id. at ¶ 4. Daniel Ladd indicates that with the exception of an October 4,

2012, Memorandum from the Maritime Administration’s Office of Policy and Plans, A.R. 2907-

2914, “no such formal memoranda were generated or exist with regard to APT’s Title XI



        10
           In its Reply, the Plaintiff suggests that “[t]here is nothing in the record evidencing
what defendants now claim to be the further consideration and analysis engaged in by MarAd,
much less any documentation of the basis for the abrupt change of views,” on the part of the
Maritime Administration. Pl.’s Reply at 4. One would expect that any documents reflecting
such “further consideration” would be privileged as they would reflect the “give-and-take” of the
consultative process.
                                                30
application.” Ladd Decl. ¶ 5. The Plaintiff asserts, without further explanation, that “[t]he failure

of MarAd staff even to prepare this key mandatory memorandum only serves to highlight the need

for discovery and supplementation of the AR with the other documents identified by APT.” Pl.’s

Reply at 15. However, as the McKeever Declaration indicates, many of these formal memoranda

should have been created long before the Credit Council became involved in the review process. The

fact that the Maritime Administration deviated from allegedly “standard practice” before the

involvement of the Credit Council minimizes the inference that later deviations were a result of

alleged nefarious interference on the part of the Credit Council.

        Finally, the Plaintiff argues certain statements by the Maritime Administrator himself

during the decisionmaking process evidence improper influence by the Credit Council. Robert

Kurz, the Chief Executive Officer of American Petroleum Tankers Parent, avers that he spoke

with Administrator Matsuda following the June 12, 2012, Credit Council meeting, at which time

Mr. Matsuda indicated that “while he was continuing to advocate for the APT application,

‘things do not look good.’” Decl. of R. Kurz, ECF No. [60-4], ¶ 30. The timing of this

statement is significant: Mr. Matsuda purportedly made this statement to Mr. Kurz over six

weeks before the initial denial of the Plaintiff’s original application. This statement gives “the

impression” that Mr. Matsuda believed the Credit Council would recommend that he deny the

application, but falls short of the “strong evidence” that the Credit Council improperly influenced

the Maritime Administrator in the six weeks between when the statement was made and when

Mr. Matsuda ultimately issued his decision. Air Transp. Ass’n, Inc. v. Nat’l Mediation Bd., 663

F.3d 476, 488 (D.C. Cir. 2011).

        Even if the Court were to credit the Plaintiff’s claim that the procedures for reviewing the

Plaintiff’s application deviated from standard Administration practice as alleged, and assumed the


                                                  31
fact the priorities memorandum was not finalized implied the Credit Council did not agree with the

conclusion, viewed along with the Plaintiff’s other evidence, the Plaintiff provides only weak

circumstantial evidence that the Credit Council overstepped its bounds. “Given the presumption

that agency members act in good faith, and the lack of concrete evidence to the contrary,”

discovery is not warranted in this case. Air Transp. Ass’n, 663 F.3d at 488. (citation omitted).

                        b.      Reason for Denial of Plaintiff’s Applications

        The Plaintiff emphasizes that the Credit Council expressed concern about the ownership of

the Plaintiff, which the Plaintiff contends is not a valid basis for denying an application. Pl.’s Mot. at

31. But the Administrative Record indicates the concern was not the ownership of the Plaintiff in

isolation, but whether the owners of the Plaintiff had a long-term interest in the project the Maritime

Administration was being asked to finance.         A.R. 2868 (noting the Credit Council initially

recommending against retaining an IFA “based on concerns about the ownership structure (75%

by Blackstone and 25% by Cerberus) and the ownership’s long-term interest in the project).”);

see also A.R. 2871 (“In March, 2011 the Credit Council denied MARAD’s prior request . . .

based on concerns about the private equity ownership’s long-term interest and the relatively high

ratio of debt to equity.”). Moreover, despite these concerns, the Credit Council ultimately

recommended that the Administration hire an IFA. A.R. 2872. In context, the statements

concerning the Plaintiff’s ownership are insufficient to justify discovery in this case.

                                         IV. CONCLUSION

        For the foregoing reasons, the Court finds only limited supplementation of the

Administrative Record is appropriate in this case.           The Maritime Administration shall be

required to supplement the record to include two public speeches by the Secretary of Defense

that the agency relied on and cited in denying the Plaintiff’s revised applications. The Plaintiff

                                                   32
failed to demonstrate the other documents at issue in its motion were considered by the Maritime

Administrator as part of his decision denying the Plaintiff’s applications. Furthermore, the

Plaintiff failed to produce sufficient evidence of bad faith or improper motive to overcome the

deliberative process privilege or to obtain discovery in this matter. Accordingly, the Plaintiff’s

[60] Motion to Compel Filing of the Full Administrative Record and for Leave to Conduct

Limited Discovery is GRANTED IN PART and DENIED IN PART.

       An appropriate Order accompanies this Memorandum Opinion.



                                                        /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE




                                               33
