                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

 ANIMAL LEGAL DEFENSE FUND, et
 al.,
        Plaintiffs
                                                    Civil Action No. 14-1462 (CKK)
        v.
 THOMAS J. VILSACK, et al.,
        Defendants

                      MEMORANDUM OPINION and ORDER
                              (June 23, 2015)
    Despite the breadth of the parties’ briefing, there is a narrow question before the
Court: whether Plaintiffs have demonstrated that Defendants have not produced the
complete administrative record regarding the renewal of the license of the Cricket Hollow
Zoo by the U.S. Department of Agriculture. Even though the parties’ briefing revisits the
question whether the administrative record is required in the first instance, the Court
already answered that request in the affirmative in a Minute Order issued January 22,
2015. In addition, the parties have each included arguments pertaining to the merits of
this case, as well filed additional notices that address merits issues. But those questions
are not before the Court today. Instead, before the Court is Plaintiffs’ [26] Motion to
Compel the Complete Administrative Record. In that motion, Plaintiffs seek to add
numerous documents to the record compiled by the agency, arguing that those documents
were before the agency when it made the licensing decisions at issue in this case. For the
reasons stated below, the Court DENIES Plaintiff’s [26] Motion to Compel the Complete
Administrative Record. The Court concludes that the documents at issue were not directly
or indirectly considered by the agency in the licensing renewal process and, therefore, are
not properly part of the administrative record in this case.
I. 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). “In other words, the administrative record ‘should not include
materials that were not considered by agency decisionmakers.’” Id. (citation omitted).

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“[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 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. Gutierrez, 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 [agency], and the [agency’s] reliance thereon
sufficiently heavy, so as to suggest that the decisionmaker constructively considered it.”
Banner Health v. Sebelius, 945 F. Supp. 2d 1, 28 (D.D.C. 2013).
II. 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 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). Plaintiffs rely on the first type of supplementation—documents that they argue
were wrongly excluded from the administrative record. 1

1
 With respect to the second type of supplementation, the D.C. Circuit Court of Appeals
has “recognized a small class of cases where district courts may consult extra-record
evidence when ‘the procedural validity of the [agency]’s action ... remains in serious
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    In seeking to force Defendants to supplement the administrative record with
documents that were purportedly before the agency, Plaintiffs 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,
945 F. Supp. 2d at 17. Rather, Plaintiffs 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, Plaintiffs must offer “reasonable, non-
speculative” grounds for their belief that the documents were directly or indirectly
considered by the agency. Banner Health, 945 F. Supp. 2d at 17. If Plaintiffs “can present
such proof showing that [the agency] 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).
    Plaintiffs seek to compel the Defendants to product the “whole record” that was
before the agency at the time of each of its decisions to renew the license of the Cricket
Hollow Zoo. Specifically, they seek all of the license applications, licenses, inspection
reports, official warnings, enforcement actions, and communications and correspondence
to or from the agency regarding the zoo. See Pls.’ Mot, Ex. H (Lutz Letter) at 2.
    As an initial matter, the Court must consider which decision(s) form the basis for the
administrative record in this case. Plaintiffs purport to challenge both the 2014 licensing
decisions and a “pattern and practice of licensing” decisions. The parties have not
addressed the scope of this challenge other than in pair of dueling footnotes. Compare
Defs.’ Opp’n at 3 n.2 (“The only renewal decision that is properly before the Court is the
recent renewal in or about May 2014.”) with Pls.’ Reply at 3 n.1 (“Plaintiffs alleged a
‘pattern and practice’ claim that is very much alive”). Because the 2014 licensing
decision is the only discrete agency action challenged in the complaint to which it
appears that a challenge is not moot, the Court presumes, for the sake of resolving this

question.’” Hill Dermaceuticals, Inc. v. Food & Drug Admin., 709 F.3d 44, 47 (D.C. Cir.
2013) (quoting Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989)). The Court of
Appeals has describe this prong as a “narrow set of exceptions.” Id. Indeed, “Esch has
been given a limited interpretation since it was decided, and at most it may be invoked to
challenge gross procedural deficiencies—such as where the administrative record itself is
so deficient as to preclude effective review.” Id. (citing Theodore Roosevelt Conservation
P’ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010)). Plaintiffs have not argued that the
documents they want this Court to consider fall within this “narrow set of exceptions,”
much less demonstrated to this Court’s satisfaction that it is applicable here—such that
expanding the administrative record would be appropriate in order to resolve the
currently pending motion to dismiss.

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motion, that the relevant decision forming the basis of the administrative record is the
2014 licensing decision. 2 Cf. Del Monte Fresh Produce N.A., Inc. v. United States, 706 F.
Supp. 2d 116, 119 (D.D.C. 2010) (holding that claim challenging “pattern and practice”
of unreasonable delay is not justiciable under the APA).
     Plaintiffs’ argument for supplementing the record founders on the requirement they
offer “reasonable, non-speculative” grounds that the documents were directly or
indirectly considered by the agency. Defendants have repeatedly stated that they did not
consider, for the purposes of renewing the license in this case, the documents that
Plaintiffs seek to have included in administrative record. See, e.g., Defs.’ Opp’n at 4.
Instead, they state that they only considered the limited materials in the application in
order to determine whether the applicant has complied with the requirements of renewing
a license, which they have construed to be effectively ministerial. 3 Indeed, the gravamen
of Plaintiffs’ claims in this action is that the agency should have but did not consider
information about the performance of the Cricket Hollow Zoo in renewing its license.
Accordingly, Plaintiffs’ attempt to argue that additional materials that were in the
agency’s possession—such as documentation regarding alleged complaints about the zoo
or agency enforcement activities—falls short. As thin as the administrative record in this
case may be, the Court concludes that Plaintiffs have failed to show that the agency has
improperly excluded items from the record. 4

III. Conclusion
     For all the reasons stated above, it is ORDERED that Plaintiffs’ [26] Motion to
Compel the Complete Administrative Record is DENIED.
     It is further ORDERED that Plaintiffs shall file an opposition to the pending Motion
to Dismiss by no later than July 23, 2015, and that Defendants shall file a Reply in
support of that motion by no later than August 21, 2015.
    SO ORDERED.
Dated: June 23, 2015
                                                        /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge

2
  The Court notes that, because of the conclusion that additional documents are not
properly part of the administrative record, this presumption is of modest import with
respect to the currently pending motion.
3
  Whether those requirements comport with the statutory scheme and are otherwise
lawful is a question to be resolved another day.
4
  Although it should go without saying, the Court notes that the denial of the pending
motion to compel today does not in any way suggest a resolution of Defendant’s Motion
to Dismiss. The Court will address the merits of that motion when it is fully briefed.

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