597 F.Supp.3d 916
W.D. Va.2022Background
- Plaintiffs (environmental groups) challenge the Forest Service Final Rule expanding NEPA categorical exclusions (CEs) for logging, roads, and special uses, alleging arbitrary and capricious rulemaking under the APA.
- The Forest Service’s supporting statement identified three evidentiary pillars, including reliance on input from named agency experts and the Council on Environmental Quality (CEQ).
- Plaintiffs moved to compel completion of the administrative record to include questionnaires/surveys, agency-expert input, CEQ input, and sought a privilege log; the magistrate judge ordered production of surveys but denied inclusion of predecisional/deliberative expert and CEQ input absent a showing of bad faith.
- On de novo review, the district court found clear evidence that the administrative record was incomplete because the agency itself stated it considered and relied on the disputed expert and CEQ materials.
- The court ordered the Forest Service to complete the record or assert applicable privileges and produce a privilege log within 21 days; the court rejected a per se rule excluding predecisional/deliberative documents that the agency says it relied upon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether documents that are predecisional/deliberative but were considered or relied on by agency decisionmakers belong in the administrative record | Documents the agency says it considered and relied on are part of the record and must be produced | Predecisional/deliberative materials are not part of the record as a categorical rule; courts need not probe deliberations | Court: If agency expressly considered/relied on documents, plaintiff may rebut presumption of completeness with clear evidence and those documents belong in the record unless privilege applies |
| Whether plaintiffs must show agency bad faith or improper behavior to compel inclusion of such documents | No; bad-faith showing is required only for extra-record supplementation, not to complete the administrative record | Yes; follow circuits holding a bad-faith threshold for compelling deliberative materials | Court: Bad-faith requirement is not required to complete an administrative record shown to be incomplete; clear-evidence standard governs |
| Whether the Forest Service’s labeling of documents as predecisional/deliberative forecloses judicial review of those materials | Agency labels cannot unilaterally remove materials the agency relied upon from judicial review | Agency designation suffices to exclude such materials absent strong showing | Court: Agency designation is initial but not dispositive; court decides whether materials are part of the record |
| Whether deliberative-process privilege (or waiver) and privilege log issues should be addressed now | Agency waived the privilege by relying on the documents; factual portions may be segregable and nonprivileged | Privilege may apply; court should not rule on waiver until agency asserts it | Court: Court will wait for Forest Service to assert any privilege and must produce a privilege log if privilege is claimed; segregation and waiver will be considered then |
Key Cases Cited
- Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (U.S. 1971) (whole administrative record required for APA review)
- Appalachian Power Co. v. EPA, 477 F.2d 495 (4th Cir. 1973) (courts must have expert views and relevant material to review agency action)
- Oceana, Inc. v. Ross, 920 F.3d 855 (D.C. Cir. 2019) (predecisional materials context discussed; distinguished by court)
- Dep't of Commerce v. New York, 139 S. Ct. 2551 (U.S. 2019) (limits on courts rejecting unstated agency reasons; relevance of extra-record materials discussed)
- Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious standard requires reasoned explanation)
- Burlington Truck Lines v. United States, 371 U.S. 156 (U.S. 1962) (agency explanations must be adequate and tied to record)
- Sanitary Bd. of City of Charleston v. Wheeler, 918 F.3d 324 (4th Cir. 2019) (presumption that agency designated a full and accurate record)
- Thompson v. U.S. Dep't of Labor, 885 F.2d 551 (9th Cir. 1989) (agency record is not limited to what it compiles and submits)
- MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993) (burden to overcome presumption of record completeness)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (discussing deliberative-process privilege)