                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


BIMINI SUPERFAST OPERATIONS LLC, et
al,

            Plaintiffs,

       v.
                                                         Civil Action No. 13-1885 (CKK)
THOMAS WINKOWSKI, Acting
Commissioner of U.S. Customs and Border
Protection, et al

            Defendants.


                                 MEMORANDUM OPINION
                                       (January 10, 2014)

       Currently before the Court are Plaintiffs’ [30] objections to the [29] administrative record

submitted by Defendants on January 7, 2014.           As Plaintiffs brought claims under the

Administrative Procedures Act (“APA”) alleging that Defendant-CBP’s actions violated notice

and comment rulemaking requirements and were arbitrary, capricious, or contrary to the law, the

Court requested the administrative record in order to more fully evaluate Plaintiffs’ Motion for

Preliminary Injunction and Defendants’ Motion to Dismiss or, in the Alternative, for Summary

Judgment.     Plaintiffs have objected to the scope of the record submitted by Defendants.

Defendants were provided an opportunity to respond to Plaintiffs’ objections. Having received

Defendants’ [33] Reply this issue is now ripe for the Court’s review.

                                       II. DISCUSSION

       Plaintiffs object to Defendants including any document in the administrative record

beyond CBP’s October 2013 letter informing Plaintiffs that they were violating the law,




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Plaintiffs’ November 4, 2013, appeal letter and letter requesting a stay in enforcement pending

their appeal, and CBP’s November 2013 final determination letter.            In addition to these

documents, Defendants included in the administrative record three INS opinions, a July 2011

letter from CBP Director of Miami Field Operations Vernon Foret explaining the law in a similar

factual situation, an excerpt of a field manual, and email correspondence between Plaintiffs and

CBP officials leading up to the November 2013 determination and following the determination

as Plaintiffs sought a stay in enforcement.

       Plaintiffs’ main objection is that the INS opinions and the field manual excerpt should not

have been included in the administrative record as they constitute “post hoc rationalizations”

of CBP’s November 2013 determination. Pl’s Objections (“Pl.’s Obj.”), at 4. Plaintiffs claim

these documents represent post hoc rationalizations because they were not specifically “cited as

the basis for CBP’s initial decision on October 30, 2013” nor were they cited “as the basis for

CBP’s final decision dated November 7, 2013.” Id. Plaintiffs also argue that “even if these

uncited opinions and field manual excerpt may have been somewhere secretly ‘before the

agency’ at the time CBP made its decision, they are completely extraneous and irrelevant to the

issues on the merits in the pending action.” Id.

       In so arguing, however, Plaintiffs misconstrue our case law regarding the proper scope of

the administrative record. Pursuant to APA § 706, the Court is required 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




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of Eng'rs, 448 F.Supp.2d 1, 4 (D.D.C. 2006) (quoting Maritel, Inc. v. Collins, 422 F.Supp.2d

188, 196 (D.D.C. 2006)). “If the relevant agency decisionmakers considered, even indirectly,

any internal guidelines, memoranda, manuals or other materials in reaching its decision, those

materials should be included in the record.” Ammex, Inc. v. United States, 62 F.Supp.2d 1148,

1156 (C.I.T.1999) (emphasis added). Importantly, courts in this Circuit have held that the

“agency may not exclude information from the record simply because it did not “rely” on the

excluded information in its final decision. City of Duluth v. Jewell, --- F.Supp.2d ---, 2013 WL

5422453, *4 (D.D.C. Sept. 29, 2013) (quoting Maritel, Inc., 422 F.Supp.2d at 196). Thus,

Plaintiffs’ argument that a document constitutes a post hoc rationalization simply because the

agency did not specifically cite to the document in its final determination is unavailing. So long

as the agency considered the document, even if the agency considered it only indirectly and did

not even rely on it in making its decision—much less cite to it—that document is properly in the

administrative record. Plaintiffs cite to Overton Park for the proposition that “documents on

judicial review that were not cited in the agency decision are not properly part of the

administrative record.” Pl.’s Obj. at 2. But Overton Park only found that “litigation affidavits”

that were created for litigation before the district court were improper “post hoc” rationalizations

not to be considered by the district court because such documents were not before the agency

when it made its decision. Overton Park, 401 U.S. at 418. “[A]bsent clear evidence to the

contrary, an agency is entitled to a strong presumption of regularity, that it properly designated

the administrative record.” Pac. Shores Subdivision, 448 F.Supp.2d at 5. “Common sense

dictates that 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.’ ” Id.




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(quoting Fund for Animals v. Williams, 245 F.Supp.2d 49, 57 (D.C. Cir. 2003)). Here, Plaintiffs

have presented no evidence to cause the Court to question whether the INS opinions or the field

manual were actually before the agency when it made its November 2013 decision. Moreover,

the Court fails to see how INS opinions and field manuals interpreting federal immigration laws

as they pertain to crewmen on “cruises to nowhere” is “extraneous and irrelevant” to the issues

involved in this case, which precisely involve the immigration status of crewmen on “cruises to

nowhere.” Accordingly, the Court finds these documents are properly part of the administrative

record.

          For much the same reasons, the Court also rejects Plaintiffs’ argument that Defendants

improperly included in the administrative record “an excess of email correspondence . . . [that]

shed[s] no real light on the agency’s decision making process.” Pl.’s Obj. at 5. Again, the

administrative record properly includes all documents that were “directly or indirectly

considered” and Plaintiffs present no evidence to suggest these emails were not considered. Pac.

Shores Subdivision, Cal. Water Dist., 448 F.Supp.2d. at 4. Moreover, the Court finds that

Defendants’ email correspondence with Plaintiffs is not irrelevant material. Prior to making the

November 2013 final determination, Defendants would have reasonably reviewed and

considered its correspondence with Plaintiffs in which Plaintiffs discussed their various cruise

operations and CBP made representations regarding those operations. Accordingly, the Court

finds that the emails are properly part of the administrative record.

          Plaintiffs’ final argument is that Defendants improperly included in the administrative

record July 2011 correspondence between the Port of Palm Beach District and CBP regarding a

“cruise to nowhere” because such correspondence was not published in the Federal Register nor

was it made available for public inspection. Pl.’s Obj. at 3. Plaintiffs argue that FOIA § 552(a)




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allows an agency to “rel[y] on, use[], or cite[] as precedent . . . against a party” a “final order,

opinion, statement of policy, interpretation, or staff manual or instruction that affects a member

of the public” only if the document has been “indexed and either made available or published” or

“the party has actual and timely notice of the terms thereof.”          5 U.S.C. § 552(a)(2)(E).

Regardless of the applicability of this FOIA provision to the letter at issue, whether or not an

agency can cite a document as legal precedent is a distinct question from whether the document

is properly included in the administrative record. As there is no reason to question that the July

2011 was part of the documents CBP directly or indirectly considered, the Court finds it is

properly included in the administrative record.

                                       III. CONCLUSION

       For the foregoing reasons, the Court approves the [29] administrative record as submitted

by Defendants on January 7, 2014.


                                                                  /s/
                                                             COLLEEN KOLLAR-KOTELLY
                                                             United States District Judge




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