Kloosterboer International Forwarding LLC et al v. United States of America et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KLOOSTERBOER INTERNATIONAL
FORWARDING LLC, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
Case No. 3:21-cv-00198-SLG
ORDER RE MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD
Before the Court at Docket 111 is Plaintiffs Kloosterboer International
Forwarding LLC and Alaska Reefer Management LLC’s (collectively, “Plaintiffs”)
Motion to Supplement the Administrative Record. Defendants United States of
America, U.S. Department of Homeland Security, U.S. Customs and Border
Protection (“CBP”), and Troy A. Miller, in his official capacity as the Acting
Commissioner of CBP (collectively, “Defendants”) responded in opposition at
Docket 121, to which Plaintiffs replied at Docket 123. Oral argument was not
requested and was not necessary to the Court’s decision.
LEGAL STANDARD
“[J]udicial review of agency action is limited to review of the administrative
record.”1 The whole administrative record “consists of all documents and materials
1 Animal Def. Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988).
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directly or indirectly considered by the agency decision-makers and includes
evidence contrary to the agency’s position.”2 An agency is entitled to a
presumption that it properly designated the administrative record.3 Agencies may
also exclude documents reflecting internal deliberations and those that probe the
“mental processes of administrative decisionmakers.”4
“To overcome this presumption, a party seeking supplementation of the
administrative record ‘must show by clear evidence that the record fails to include
documents or materials considered by the [agency] in reaching the challenged
decision’ and that the record as presented cannot allow ‘substantial’ and
‘meaningful judicial review.’”5
2 Thompson v. U.S. Dep’t of Lab., 885 F.2d 551, 555 (9th Cir. 1989) (emphasis omitted)
(quoting Exxon Corp. v. Dep’t of Energy, 91 F.R.D. 26, 32 (N.D. Tex. 1981)).
3 In re United States, 875 F.3d 1200, 1206 (9th Cir.), vacated on other grounds, 138 S. Ct. 443
(2017); accord Goffney v. Becerra, 995 F.3d 737, 748 (9th Cir. 2021).
4 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977).
5 Save the Colo. v. U.S. Dep’t of the Interior, 517 F. Supp. 3d 890, 895 (D. Ariz. 2021) (alteration
in original) (quoting Ctr. for Native Ecosystems v. Salazar, 711 F. Supp. 2d 1267, 1272, 1275
(D. Colo. 2010)); see also Golden Gate Salmon Ass’n v. Ross, Case No. 1:17-cv-01172 LJO-
EPG, 2018 WL 3129849, at *4 (E.D. Cal. June 22, 2018) (“[P]laintiffs ‘must identify reasonable,
non-speculative grounds for [their] belief that the documents were considered by the agency
and not included in the record.’” (alteration in original) (quoting Pac. Shores Subdivision, Cal.
Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 6 (D.D.C. 2006))).
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DISCUSSION
Plaintiffs assert that the administrative record is deficient in two principal
respects. The Court addresses each in turn.6
I. Completeness
According to Plaintiffs, “[t]he administrative record here is deficient
because . . . it does not include documents and communications shared or
received from other agencies or entities outside of CBP concerning the Penalty
Notices that are explicitly referenced in the existing record.”7 Plaintiffs point to two
categories of documents to support this assertion.
First, Plaintiffs contend that “[m]ultiple documents reference ‘a recent
meeting with industry’ or ‘a meeting with an industry stakeholder’ in which the
Jones Act Division of Enforcement (‘JADE’) was advised of potential Jones Act
violations committed by ARM, but with a single exception, no documents or
communications related to such meetings with industry ‘stakeholders’ or their
representatives were included in the record.”8 Second, Plaintiffs assert that
6 The parties dispute whether the APA applies here. However, the Court need not determine
that question now as both sides agreed—and the Court ordered—that the government would
produce an administrative record. See Docket 97 at 2; Docket 98 at 2; Docket 101 (Order re
Expedited Merits Briefing Schedule).
7 Docket 111 at 4.
8 Docket 111 at 4 (citing Docket 106-9 at 9, 11, 30, 34, 35) (“It defies all logic that no such
documents exist in CBP’s files, and there is no legitimate basis to withhold such documents or
information.”).
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“numerous documents refer to CBP discussions with the Surface Transportation
Board (‘STB’) regarding this matter, but no documents concerning those
communications have been produced,” with the exception of a single email chain.9
And, as to that email chain, Plaintiffs assert that it may be incomplete as “STB
responds to questions regarding rate tariffs, but the email chain in the
administrative record does not include any response.”10
Defendants respond that “Plaintiffs have not even identified any specific
documents that should have been included in the record, much less identified ‘non-
speculative grounds for [their] belief that the [unspecified] documents were
considered by the agency.’”11 Defendants further assert that Plaintiffs’ mere
“speculation that documents of substance are missing from the record is not
enough to overcome the presumption that the record is complete.”12
Contrary to Plaintiffs’ assertions, there does not necessarily exist
documentation of meetings with industry stakeholders or additional documents
memorializing CBP’s communications with STB. Defendants are entitled to a
9 Docket 111 at 4–5 (citing Docket 106-9 at 9, 19, 28, 33, 34).
10 Docket 111 at 5 (citing Docket 106-9 at 25–29, 18–20).
11 Docket 121 at 3–4 (alterations in original) (quoting Ctr. for Biological Diversity v. Zinke, Case
No. 3:18-cv-00064-SLG, 2018 WL 8805325, at *2 (D. Alaska Nov. 16, 2018)); see also Golden
Gate Salmon Ass’n, 2018 WL 3129849, at *4.
12 Docket 121 at 4 (citing Franks v. Salazar, 751 F. Supp. 2d 62, 74 (D.D.C. 2010); Blue Ocean
Inst. v. Gutierrez, 503 F. Supp. 2d 366, 369–71 (D.D.C. 2007)).
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presumption that the record is complete and Plaintiffs offer only speculative
grounds that the additional documents they seek actually exist.13 Additionally,
even if additional documents did exist, Plaintiffs do not make any non-conclusory
attempts to assert that CBP considered those documents in its decision-making
process.14 Accordingly, the Court finds that Plaintiffs have not met their burden to
rebut the presumption of regularity.15
II. Redactions
Plaintiffs assert that the “administrative record also is replete with overly-
broad redactions by Defendants that do not appear to be justified by any
cognizable privilege or other legal basis.”16 In particular, Plaintiffs complain of the
redaction of the names of third-party entities,17 the redaction of file names of
documents attached to emails that were produced in the administrative record,18
13 With respect to the email chain, it appears that STB provided the information as requested by
CBP. It is not clear to this Court that a material response from CBP would likely have been
made. See Docket 106-9 at 25.
14 See Docket 123 at 4 (asserting, without explanation, that the “omitted communications
. . . constitute key aspects of the decision-making process” (emphasis in original)).
15 Plaintiffs raise for the first time the issue of bills of lading in their reply brief. Docket 123 at 3–
4. The Court declines to consider this argument. See Bazuaye v. I.N.S., 79 F.3d 118, 120 (9th
Cir. 1996) (“Issues raised for the first time in the reply brief are waived.”).
16 Docket 111 at 5.
17 Docket 111 at 5 (citing Docket 106-9 at 30; Docket 106-10 at 2–11).
18 Docket 111 at 5–6 (citing Docket 106-32 at 1; Docket 106-34 at 1).
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and a redaction of substantive information at AR 227, allegedly without identifying
any applicable privilege.19
Defendants respond that the “names of third-party vessels, carriers, and
shippers alleged to have violated the Jones Act . . . and file names of documents
attached to emails that would reveal that same information[] are all redacted”
pursuant to agency regulations.20 The Court finds that the redactions appear
consistent with Defendants’ explanation. Plaintiffs also do not offer a valid reason
for needing to know the names of third-party entities, other identifying information,
or the file names, or any explanation for how Defendants considered that
information, either directly or indirectly, in its decision-making process in this
case.21 Additionally, contrary to Plaintiffs’ assertion, the redaction at AR 227 was
clearly identified as privileged in the administrative record index.22
In conclusion, the Court finds that Plaintiffs have not met their burden to
rebut the presumption of regularity with respect to the redactions.
19 Docket 111 at 5 (citing Docket 106-9 at 34).
20 Docket 121 at 6 (citing Docket 106-9 at 30; Docket 106-10 at 2–11); see 19 C.F.R. §§
103.23(b), 103.32.
21 Cf. Docket 111 at 6 (“Without those file names, Plaintiffs cannot determine whether those
documents, which should be included in the administrative record, have been produced and
cannot specifically identify missing documents.”).
22 See Docket 106-2 at 1 (“redaction in paragraph five [of AR 227] for attorney-client privilege
and attorney work product”). The index also offers a valid explanation for the remaining
redactions: “Other redactions are of information that is not part of the Administrative Record
including email addresses, phone numbers, and the identities of non-parties to the litigation.”
Docket 106-2 at 5.
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CONCLUSION
In light of the foregoing, Plaintiffs’ Motion to Supplement the Administrative
Record at Docket 111 is DENIED.
DATED this 16th day of December, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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