Opposition Brief — Blue Mountains Biodiversity Project, Petitioner v. Shane Jeffries, in His Official Capacity as Ochoco National Forest Supervisor, et al.

No. 24-300

In the Supreme Court of the United States

BLUE MOUNTAINS BIODIVERSITY PROJECT, PETITIONER

v.

SHANE JEFFRIES, IN HIS OFFICIAL CAPACITY AS

OCHOCO NATIONAL FOREST SUPERVISOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

ROBERT J. LUNDMAN

JOAN M. PEPIN

ROBERT P. STOCKMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether deliberative materials—predecisional,

non-final materials reflecting the agency’s internal

deliberations—are part of the administrative record in

an action under the Administrative Procedure Act

(APA), 5 U.S.C. 551 et seq., 701 et seq., such that an

agency must prepare a privilege log describing each deliberative document that it does not provide.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 6

Conclusion ................................................................................... 19

TABLE OF AUTHORITIES

Cases:

Biden v. Texas, 597 U.S. 785 (2022) ................................. 8, 10

Burlington N. R.R. Co. v. Oklahoma Tax Comm’n,

481 U.S. 454 (1987).............................................................. 16

Camreta v. Greene, 563 U.S. 692 (2011) .............................. 18

Chen v. Mayor & City Council of Baltimore,

574 U.S. 988 (2014).............................................................. 16

Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971)...........................................6, 9, 10, 14, 17

Defenders of Wildlife v. Department of the Interior,

No. 18-2090 (4th Cir. Feb. 5, 2019) ................................... 17

Department of Commerce v. New York,

588 U.S. 752 (2019).......................................................... 8, 10

Emuwa v. United States Dep’t of Homeland Sec.,

113 F.4th 1009 (D.C. Cir. 2024) ......................................... 12

Florida Power & Light Co. v. Lorion,

470 U.S. 729 (1985)...................................................... 4, 8, 12

Kansas State Network v. FCC,

720 F.2d 185 (D.C. Cir. 1983) ............................................. 11

Lamps Plus, Inc. v. Varela, 587 U.S. 176 (2019) ................ 16

Lynce v. Mathis, 519 U.S. 433 (1997) .................................. 16

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29 (1983) .................................................. 9

(III)

IV

Cases—Continued:

Page

National Ass’n of Home Builders v. Defenders of

Wildlife, 551 U.S. 644 (2007) ............................................... 9

National Security Archive v. CIA,

752 F.3d 460 (D.C. Cir. 2014) ............................................... 9

Nielsen, In re, No. 17-3345, 2017 U.S. App. LEXIS

26821 (Dec. 27, 2017) .................................................... 16, 17

Norris & Hirshberg v. SEC, 163 F.2d 689

(D.C. Cir. 1947), cert. denied, 333 U.S. 867 (1948) .......... 10

Oceana, Inc. v. Ross,

920 F.3d 855 (D.C. Cir. 2019) ..........................3, 4, 11, 12, 14

San Luis Obispo Mothers for Peace v. Nuclear

Regulatory Comm’n, 789 F.2d 26 (D.C. Cir.),

cert. denied, 479 U.S. 923 (1986) ....................................... 11

South Carolina Coastal Conservation League v.

Ross, 431 F. Supp. 3d 719 (D.S.C. 2020) ........................... 18

State v. U.S. Immigration & Customs Enforcement,

438 F. Supp. 3d 216 (S.D.N.Y. 2020) ................................. 18

Subpoena Duces Tecum Served on the Off. of

Comptroller of the Currency, In re,

156 F.3d 1279 (D.C. Cir. 1998) ........................................... 11

United States v. Chemical Found., Inc.,

272 U.S. 1 (1926) ................................................................. 10

United States Fish & Wildlife Serv. v. Sierra Club,

Inc., 592 U.S. 261 (2021) ................................................. 6, 13

United States v. Morgan, 313 U.S. 409 (1941)................ 9, 14

United States, In re, 583 U.S. 1029 (2017) .......................... 13

United States Postal Service v. Gregory,

534 U.S. 1 (2001) ................................................................. 10

Universal Camera Corp. v. NLRB,

340 U.S. 474 (1951)................................................................ 7

Vermont Yankee Nuclear Power Corp. v. Natural

Res. Def. Council, Inc., 435 U.S. 519 (1978) ....................... 8

V

Case—Continued:

Page

Village of Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252 (1997) ......................................... 14

Statutes and rules:

Administrative Procedure Act, 5 U.S.C. 551 et seq.,

701 et seq. ............................................................................... 2

5 U.S.C. 556(e) ............................................................. 7, 13

5 U.S.C. 706 ............................................................ 6, 13, 15

Freedom of Information Act, 5 U.S.C. 552 ..................... 3, 15

5 U.S.C. 552(a)(3)(A) ....................................................... 15

National Environmental Policy Act of 1969,

42 U.S.C. 4321 et seq. ............................................................ 2

National Forest Management Act of 1976,

16 U.S.C. 1600 et seq. ............................................................ 2

28 U.S.C. 2112(b) ..................................................................... 7

Fed. R. App. P. 16................................................................ 7, 8

Sup. Ct. R. 10 ................................................................... 15, 18

In the Supreme Court of the United States

No. 24-300

BLUE MOUNTAINS BIODIVERSITY PROJECT, PETITIONER

v.

SHANE JEFFRIES, IN HIS OFFICIAL CAPACITY AS

OCHOCO NATIONAL FOREST SUPERVISOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The Ninth Circuit’s amended opinion and order

denying rehearing en banc (Pet. App. 1a-40a) is reported

at 99 F.4th 438. The Ninth Circuit’s original opinion

(Pet. App. 41a-58a) is reported at 72 F.4th 991. The

opinion of the district court (Pet. App. 59a-79a) is available at 2022 WL 4466928. The opinion of the magistrate

judge (Pet. App. 82a-96a) is available at 2021 WL

3683879.

JURISDICTION

The judgment of the court of appeals was entered on

July 3, 2023. The court amended the judgment and denied a petition for rehearing en banc on April 16, 2024

(Pet. App. 1a-40a). On July 10, 2024, Justice Kagan

(1)

2

extended the time within which to file a petition for a

writ of certiorari to and including September 13, 2024,

and the petition was filed on that date. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Walton Lake is a popular, developed recreation

site in the Ochoco National Forest in central Oregon.

Some tree species in the area are infested with laminated root rot, a disease that kills trees and causes them

to fall unexpectedly. See Pet. App. 8a; C.A. E.R. 733734. As a result, a 35-acre portion of the recreation area

had to be closed for several years for public safety. C.A.

E.R. 734, 930; C.A. S.E.R. 31-37. In order to promote

public safety and forest health, the U.S. Forest Service

developed the challenged Walton Lake Restoration

Project. C.A. E.R. 733, 736-737. The Project will replace stricken trees with disease-resistant ones and will

also thin other overgrown parts of the area, reducing

the risks of catastrophic wildfire and bark beetle

spread. Id. at 745-747, 752-754. In 2020, after years of

litigation, public participation, and different administrative processes, the Service published a lengthy Environmental Assessment and a Finding of No Significant Impact for the Project under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et

seq. See C.A. E.R. 647-727, 729-927.

2. Petitioner filed suit under the Administrative

Procedure Act (APA), 5 U.S.C. 551 et seq., 701 et seq.,

challenging the Service’s decision to proceed with the

Project, its NEPA process, and its Finding of No Significant Impact as inconsistent with NEPA and the National Forest Management Act of 1976, 16 U.S.C. 1600

et seq. The Service filed the administrative record with

the court and certified that the record was complete.

3

C.A. E.R. 550-554; see Pet. App. 87a. Petitioner moved

for an order compelling the Service to complete the administrative record or, in the alternative, to prepare a

privilege log listing all deliberative materials withheld

from the record. See Pet. App. 85a.

The magistrate judge recommended denying petitioner’s motion. See Pet. App. 82a-95a. She explained

the Service’s certification that it produced the complete

record is “entitled to a presumption of regularity” and

explained that petitioner “failed to overcome that presumption.” Id. at 88a. The magistrate judge rejected

petitioner’s argument that approximately “1,200 pages

of material” that petitioner had acquired pursuant to

the Freedom of Information Act (FOIA), 5 U.S.C. 552,

should have been included in the administrative record,

observing that petitioner had “provide[d] little in the

way of specific argument” concerning those documents.

Pet. App. 93a. Based on her own review, the magistrate

judge determined that the 1200 pages “are largely deliberative materials consisting of email discussions between agency staff, proposed drafts, and other similar

documents.” Id. at 94a. She observed that “[t]he D.C.

Circuit has consistently held that, absent a showing of

bad faith or improper behavior, deliberative documents

are not part of the administrative record.” Id. at 91a

(citing Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir.

2019) (internal quotation marks and some citations

omitted). “[C]oncur[ring] with the reasoning” of the

D.C. Circuit, the magistrate judge emphasized that

APA review seeks “to assess the lawfulness of the

agency’s action based on the reasons offered by the

agency,” rather than “prob[ing] the mental processes of

agency decision-makers.” Id. at 92a (citation omitted).

The magistrate judge further determined that a privilege

4

log of the agency’s deliberative documents “would be

without useful purpose and would undermine the limited scope of the Court’s APA review.” Id. at 95a.

3. The district court adopted the magistrate judge’s

reasoning and denied petitioner’s motion to compel.

See Pet. App. 80a-81a. The district court later granted

the Service summary judgment on all but one of petitioner’s claims. See id. at 59a-79a; C.A. E.R. 9-12, 43,

54.

4. The court of appeals affirmed. See Pet. App. 41a58a; see id. at 1a-21a (amended opinion).

As relevant here, the court of appeals affirmed the

district court’s denial of petitioner’s motion to compel.

Pet. App. 11a-17a. The court explained that the administrative record is normally “the record the agency presents.” Id. at 11a (quoting Florida Power & Light Co.

v. Lorion, 470 U.S. 729, 743-744 (1985)). It also observed that the agency’s compilation of the record is

“subject to a presumption of regularity.” Ibid. (citation

omitted). The court agreed with the D.C. Circuit that

deliberative materials, “which are prepared to aid the

decisionmaker in arriving at a decision” are “ordinarily

not relevant” when assessing the lawfulness of agency

action. Id. at 12a (citing Oceana, 920 F.3d at 865). And

it concluded that those materials “ ‘are not part of the

administrative record to begin with.’ ” Ibid. Thus, the

Ninth Circuit agreed with the D.C. Circuit that—other

than in cases of asserted “impropriety or bad faith by

the agency”—“deliberative materials are generally not

part of the [administrative record].” Id. at 11a.

The court of appeals noted that “whether materials

are in fact deliberative is subject to judicial review,”

providing that “in appropriate circumstances district

courts may order a privilege log to aid in that analysis.”

5

Pet. App. 12a. But it explained that in this case, petitioner “does not assert any misconduct by the Service”

or “contend that specific documents were improperly

classified as deliberative.” Id. at 13a. For that reason,

the court determined that the district court “did not

abuse its discretion by declining to [order the production of a privilege log] in this case.” Ibid. Accordingly,

the court “le[ft] for another day a detailed exploration

of the precise circumstances under which a district

court can order the production of a privilege log.” Ibid.

5. Petitioner sought panel rehearing and rehearing

en banc. The panel issued an amended opinion, but otherwise denied the petition for panel rehearing. See Pet.

App. 6a-7a.

The court of appeals denied the petition for rehearing en banc. See Pet. App. 7a. Judge Berzon issued a

statement respecting the denial. Id. at 22a-40a. Judge

Berzon would have held that “ ‘the whole record’ includes everything that was before the agency pertaining to the merits of its decision,’ ” including deliberative

materials. Id. at 26a (brackets and citation omitted). In

Judge Berzon’s view, this Court’s statements rejecting

the relevance of an agency’s mental processes address

only “the propriety of post-decisional testimony of administrative decisionmakers.” Id. at 32a; see id. at 30a32a. And Judge Berzon was not persuaded by the D.C.

Circuit’s holding that deliberative materials are not

part of the administrative record, taking the view that

the D.C. Circuit misinterpreted its own past precedent

in reaching that conclusion. See id. at 32a-33a. Judge

Berzon also expressed the view that, “[w]ithout a privilege log” listing all the deliberative documents, “governmental mistakes or misconduct are unlikely to come

to light.” Id. at 34a.

6

ARGUMENT

Petitioner challenges the court of appeals’ denial of

its motion to supplement the administrative record in

this Administrative Procedure Act (APA) case. The

court of appeals correctly rejected petitioner’s argument that all deliberative documents are part of the administrative record and must either be provided to petitioner or included on a privilege log, agreeing with the

D.C. Circuit’s longstanding precedent about what constitutes an administrative record. That decision does

not conflict with any precedential decision from another

court of appeals or otherwise satisfy this Court’s criteria for review. The petition for a writ of certiorari

should be denied.

1. Deliberative materials generally include opinions,

recommendations, and other internal materials reflecting the deliberations comprising part of a process by

which the government formulates its decisions. See

United States Fish & Wildlife Serv. v. Sierra Club, Inc.,

592 U.S. 261, 267 (2021). They “help the agency formulate its position,” and are distinct from “documents reflecting a final agency decision and the reasons supporting it.” Id. at 268. Petitioner contends (Pet. 14-22) that

deliberative documents—even internal emails and memoranda reflecting the writer’s personal views and drafts

of the final agency decision—are part of the administrative record and that all deliberative documents must be

listed on a privilege log if they are not provided to an

APA challenger. The court of appeals correctly rejected that argument. See Pet. App. 10a-13a.

a. When reviewing formal or informal agency action

under the APA, a court “shall review the whole record

or those parts of it cited by a party.” 5 U.S.C. 706. See

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.

7

402, 420 (1971) (explaining that APA review “is to be

based on the full administrative record”). The requirement of review of the “whole record” instructs courts to

consider information both favorable and unfavorable to

the agency, rejecting the pre-APA practice under which

courts sometimes upheld agency action as long as any

favorable evidence appeared in the record. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 482 n.15, 485

n.21, 486 n.22, 488 (1951).

The APA does not specify the contents of the administrative record for informal agency action, like the decision approving the Project at issue here. But statutory context indicates that deliberative materials are

not part of the record. First, for formal agency hearings, the APA provides that the “exclusive record for

decision” consists of “[t]he transcript of testimony and

exhibits, together with all papers and requests filed in

the proceeding.” 5 U.S.C. 556(e). The administrative

record therefore does not include materials that are not

“filed in the proceeding” pursuant to the agency’s procedures, such as internal agency documents regarding

the agency’s deliberations in reaching a final decision.

Ibid. Second, when an agency order is subject to direct

review in a court of appeals, the “record to be filed in

the court of appeals in such a proceeding shall consist of

the order sought to be reviewed or enforced, the findings or report upon which it is based, and the pleadings,

evidence, and proceedings before” the agency. 28

U.S.C. 2112(b); see Fed. R. App. P. 16 (setting out the

record on review of an agency order). Predecisional and

deliberative materials thus are not part of the record in

direct review cases. That is hardly surprising: bench

memoranda and preliminary drafts of district court

opinions are not part of the record in non-agency

8

appeals from the district court. See Fed. R. App. P. 16

advisory committee’s note (1967 Amendment) (explaining that “[t]he record in agency cases is * * * the same

as that in appeals from the district court”).

Nothing in the text of the APA supports changing

the scope of the administrative record when informal

agency action is at issue to include preliminary, deliberative documents that reflect an agency’s decision-making process. Treating deliberative materials as part of

the record in informal agency proceedings would render

judicial review of those proceedings substantially more

expansive and of a fundamentally different character

than review of formal proceedings. That result would

also be peculiar, particularly because the informal character of the proceedings gives the agency more, rather

than less, latitude in deciding what materials belong in

the record. See Vermont Yankee Nuclear Power Corp.

v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543-549

(1978) (describing the flexibility agencies have to fashion their procedures for informal proceedings).

Nor would considering deliberative materials to be

part of the administrative record serve judicial review

of the agency’s decision in typical cases. Under the

APA, “[t]he task of the reviewing court is to apply the

appropriate APA standard of review * * * to the agency

decision based on the record the agency presents to the

reviewing court.” Florida Power & Light Co. v. Lorion,

470 U.S. 729, 743-744 (1985). “[I]n reviewing agency action, a court is ordinarily limited to evaluating the

agency’s contemporaneous explanation in light of the

existing administrative record.” Biden v. Texas, 597

U.S. 785, 811 (2022) (quoting Department of Commerce

v. New York, 588 U.S. 752, 780 (2019)). The court’s review must be based on the reasons “articulated by the

9

agency itself,” and the agency’s action “must be upheld,

if at all, on th[at] basis.” Motor Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983).

A reviewing court’s task is an objective one, to determine the sufficiency of the evidence in the record and

the agency’s explanation of its action, including whether

the agency’s written decision relied on appropriate factors and considered the important aspects of the problem on the basis of the evidence presented. See id. at

43. Internal predecisional deliberative materials are

not evidence or the agency’s explanation for its decision,

and are not relevant to a court’s task in reviewing the

agency’s decision on the basis of evidence presented in

the record.

In addition, “[t]he federal courts ordinarily are empowered to review only an agency’s final action,” and it

makes no difference if the decisionmaker’s assessment

differs from those of his subordinates or if the agency

modified its position during the administrative process.

National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659 (2007). “[I]nquiry into the mental

processes of administrative decisionmakers is usually to

be avoided.” Overton Park, 401 U.S. at 420; see United

States v. Morgan, 313 U.S. 409, 422 (1941) (explaining

that “[j]ust as a judge cannot be subjected to * * * scrutiny” regarding the mental processes by which the

judge reached a decision, “so the integrity of the administrative process must be equally respected”). In short,

agencies “should be judged by what they decided, not

for matters they considered before making up their

minds.” National Security Archive v. CIA, 752 F.3d

460, 462 (D.C. Cir. 2014) (Kavanaugh, J.) (citation omitted). Where, as here, an agency makes administrative

findings contemporaneous with its decision and includes

10

them in the administrative record, inquiry into underlying mental processes is unwarranted absent “a strong

showing of bad faith or improper behavior.” Overton

Park, 401 U.S. at 420.

Those considerations find further support in the

“presumption of regularity that normally attends agency

action.” Biden, 597 U.S. at 811; see United States Postal

Service v. Gregory, 534 U.S. 1, 10 (2001) (“[A] presumption of regularity attaches to the actions of Government

agencies.”); United States v. Chemical Found., Inc., 272

U.S. 1, 14-15 (1926). “This presumption reflects respect

for a coordinate branch of government.” New York, 588

U.S. at 792 (Thomas, J., concurring in part and dissenting in part). While an agency must “ ‘disclose the basis’ ”

of its action, a court must generally accept “an agency’s

stated reasons for acting.” Id. at 780-781 (majority

opinion) (citation omitted). “[F]urther judicial inquiry

into ‘executive motivation’ represents ‘a substantial intrusion’ into the workings of another branch of Government and should normally be avoided.” Id. at 781 (citation omitted). A court may look behind an agency’s

stated reasons only in extraordinary cases involving a

“strong showing of bad faith.” Ibid. (citation omitted).

The presumption of regularity both confirms that an

agency’s internal deliberations are irrelevant to APA

review absent a strong showing of impropriety and provides reason to credit the agency’s compilation of the

relevant record and certification that the record is complete.

b. In light of those principles, the D.C. Circuit—the

court of appeals that handles the largest share of the

Nation’s administrative law cases—has long recognized

that deliberative materials are not ordinarily part of the

administrative record. See Norris & Hirshberg, Inc. v.

11

SEC, 163 F.2d 689, 693 (D.C. Cir. 1947) (“[I]nternal

memoranda made during the decisional process * * *

are never included in a record.”), cert. denied, 333 U.S.

867 (1948); Kansas State Network, Inc. v. FCC, 720 F.2d

185, 191 (D.C. Cir. 1983) (holding that documents reflecting the “predecisional process leading to an agency

decision” should be struck from the record) (citation

omitted); San Luis Obispo Mothers for Peace v. United

States Nuclear Regulatory Comm’n, 789 F.2d 26, 45

(D.C. Cir.) (en banc) (plurality opinion) (declining to

supplement the record with a transcript of an agency

meeting because “cases where a court is warranted in

examining the deliberative proceedings of the agency

* * * must be the rare exception”), cert. denied, 479

U.S. 923 (1986); id. at 45-46 (Mikva, J., concurring in the

result); In re Subpoena Duces Tecum Served on the Off.

of Comptroller of the Currency, 156 F.3d 1279, 12791280 (D.C. Cir. 1998) (explaining that “[a]gency deliberations not part of the record are deemed immaterial

* * * 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 considering the question presented here, the D.C.

Circuit has specifically held that “predecisional and deliberative documents are not part of the administrative

record to begin with, so they do not need to be logged

as withheld from the administrative record.” Oceana,

Inc. v. Ross, 920 F.3d 855, 865 (2019) (citation and internal quotation marks omitted). “[Because] predecisional

documents are irrelevant,” the court reasoned, “they

are not required to be placed on a privilege log.” Ibid.

And it emphasized that requiring an agency to log deliberative materials is particularly unwarranted because

12

“the designation of the Administrative Record, like any

established administrative procedure, is entitled to a

presumption of administrative regularity.” Id. at 865

(citation omitted); see Emuwa v. United States Dep’t of

Homeland Sec., 113 F.4th 1009, 1018 (D.C. Cir. 2024)

(“[T]he ‘record of proceedings’ does not include internal

recommendations to the decisionmaker: * * * just as a

law clerk’s bench memorandum would not be part of the

record on which a judicial decision is based.”) (citation

omitted).

c. The court of appeals correctly applied those principles here. Following long-settled administrative law

principles, it explained that the administrative record is

normally “the record the agency presents.” Pet. App.

11a (quoting Florida Power, 470 U.S. at 743-744). And

it observed that the compilation of the record is “subject

to a presumption of regularity.” Ibid. (citation omitted).

The court of appeals agreed with the D.C. Circuit that

deliberative materials are “ordinarily not relevant”

when assessing “the lawfulness of agency action.” Id.

at 12a (citing Oceana, 920 F.3d at 865). And it held that

deliberative materials are “not part of the administrative record to begin with.” Ibid. (quoting Oceana, 920

F.3d at 865). The court also correctly explained that “in

appropriate circumstances” a district court could “order a privilege log.” Ibid. But a privilege log was not

required in this case because petitioner “d[id] not assert

any misconduct by the Service” nor “contend that specific documents were improperly classified as deliberative.” Id. at 12a-13a. For that reason, the court of appeals held that the district court “did not abuse its discretion by declining” to order a privilege log “in this

case.” Id. at 13a.

13

d. Petitioner’s contrary arguments (see Pet. 14-22)

are unavailing.

Petitioner primarily contends (Pet. 14-15) that the

reference to judicial consideration of the “whole record”

in Section 706 means that a court is required to “look[]

at all the materials that were before the agency.” Pet.

18; see Pet. 14-15. Petitioner is mistaken. The requirement that courts look at the “whole record” in Section

706 specifies the scope of judicial review, instructing

courts to consider unfavorable as well as favorable evidentiary material in the record. See pp. 6-7, supra. But

it does not further specify what categories of materials

must be included. Tellingly, the “whole record” requirement in Section 706 applies to both formal and informal agency proceedings. And the APA elsewhere defines the administrative record for formal agency proceedings in a way that excludes deliberative materials.

See 5 U.S.C. 556(e).

Petitioner contends that “in practice,” courts regularly review “letters, drafts, emails, and other nonfinal

materials.” Pet. 15 (quoting Pet. App. 28a (Berzon, J.,

dissenting)). But internal materials of that type are not

invariably deliberative or otherwise outside the administrative record. For example, emails that document

the “final agency decision and the reasons supporting

it,” United States Fish & Wildlife Serv., 592 U.S. at 268,

are part of the administrative record. And the administrative record in this case included some internal materials, e.g., Administrative Record (A.R.) 4846; A.R.

8697-8708. Similarly, while an agency is required to include in the record evidentiary “materials contrary to

the government’s decision,” Pet. 14 (citing In re United

States, 583 U.S. 1029, 1030-1031 (2017) (Breyer, J., dissenting)), it does not follow that documents that reflect

14

the deliberations themselves must be included. And including the latter would only assist “inquiry into the

mental processes of administrative decisionmakers,”

which this Court has repeatedly directed courts to avoid

in the typical case. Overton Park, 401 U.S. at 420; see

Morgan, 313 U.S. at 422; pp. 9-10, supra.1

Petitioner is also wrong to contend that, absent a

privilege log of all deliberative materials, it would be

difficult to “discover” “malfeasance” by the agency.

Pet. 22. The court of appeals held, in accord with the

D.C. Circuit, that a privilege log may be ordered “in appropriate circumstances,” including upon “a showing of

bad faith or improper behavior.” Pet. App. 12a; see

Oceana, 920 F.3d at 865. Defining the record in every

case on the assumption that the agency might have engaged in malfeasance that could be “discover[ed]”

through inclusion of such material would invert the presumption of regularity applicable to agency action and

convert judicial review into a fishing expedition. See p.

10, supra. And here—despite obtaining over a thousand pages of additional documents under FOIA, see

Petitioner suggests that this Court’s statements rejecting an inquiry into the mental processes of agency decisionmakers apply

only to “post-decisional testimony,” and are based on a concern with

“the generation of new material” not before the agency. Pet. 19 (citation omitted). That is incorrect. This Court has explained that

testimony about the predecisional “process by which [the agency decisionmaker] reached the conclusions of his order, including the

manner and extent of his study of the record and his consultation

with subordinates,” is improper because it undermines “the integrity of the administrative process.” Morgan, 313 U.S. at 422; see,

e.g., Village of Arlington Heights v. Metropolitan Hous. Dev. Corp.,

429 U.S. 252, 268 n.18 (1977) (“[J]udicial inquiries into legislative or

executive motivation represent a substantial intrusion into the

workings of other branches of government.”).

1

15

Pet. App. 93a-94a—petitioner neither “assert[ed] any

misconduct” by the agency nor identified any “specific

documents” that it believed “were improperly classified

as deliberative.” Id. at 13a.

Petitioner also suggests (Pet. 19-21) that there is

something improper about an agency facing disclosure

obligations under FOIA that may be somewhat broader

than the agency’s obligation to provide a complete

administrative record when sued under the APA. But

that difference is a result of statutory text: FOIA

specifically requires an agency to produce all agency

“records,” subject to certain exemptions. 5 U.S.C.

552(a)(3)(A). Section 706 contains no similar requirement, nor does it define the administrative record to include every email, memorandum, and reference that

might qualify as an individual record under FOIA. See

5 U.S.C. 706. And the fact that, despite obtaining voluminous records in response to its FOIA request, see

Pet. App. 93a-94a, petitioner has not identified a single

specific document improperly classified as deliberative

further supports the view of the court of appeals that a

privilege log was not required in this case. See id. at

12a-13a.

2. Petitioner recognizes that “no circuit has issued a

precedential decision” that conflicts with the decision

below. Pet. 11. And it does not assert that the decision

below conflicts with any decision of this Court, see Pet.

10-24. Accordingly, this case does not satisfy this Court’s

traditional certiorari standards. See Sup. Ct. R. 10.

a. Petitioner contends that review is warranted because the Second and Fourth Circuits have issued nonprecedential orders “adopting the rule” that “deliberative

materials are part of the administrative record.” Pet.

11. But those decisions do not create binding precedent,

16

meaning that the Second and Fourth Circuits will be

free to address the question anew in a subsequent case. 2

Nor, in any event, do those nonprecedential orders

adopt the broad rule petitioner cites. The Second Circuit denied a mandamus petition that sought to stay a

district court’s order requiring the government to supplement the record in a case arising from the recission

of the Deferred Action for Childhood Arrivals (DACA)

policy. In re Nielsen, No. 17-3345, 2017 U.S. App.

LEXIS 26821 (Dec. 27, 2017), ECF No. 171. The court

of appeals did not announce a rule that all deliberative

materials are included in the administrative record.

Petitioner contends that this Court “grant[s] certiorari where a

nonprecedential opinion or order supplies the basis for a circuit divide.” Pet. 13 n.1. But none of the examples it cites supports that

proposition. In four of the cases, this Court granted review where

the decision below was unpublished, but the petitioner had asserted

a conflict between precedential, published decisions. See Chen v.

Mayor & City Council of Baltimore, 574 U.S. 988, 988 (2014) (order

granting certiorari in case where the district court relied on a binding, published Fourth Circuit decision that conflicted with the decisions of the Second, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits); Pet. at i, 10, Eastern Associated Coal Corp. v. United

Mine Workers of Am., Dist. 17, 531 U.S. 57, 61 (2000) (No. 99-1038)

(asserting a 5-5 circuit conflict), Lynce v. Mathis, 519 U.S. 433, 436

(1997) (reviewing an unpublished order applying a binding, published Eleventh Circuit decision that conflicted with a published decision of the Tenth Circuit); Burlington N. R.R. Co. v. Oklahoma

Tax Comm’n, 481 U.S. 454, 460 (1987) (reviewing an unpublished

order where the lower courts applied a binding, published Tenth

Circuit decision that conflicted with a published Eighth Circuit decision). And in the remaining case, the petition also contended, and

this Court ultimately concluded, that the decision below conflicted

with a prior decision of this Court. Lamps Plus, Inc. v. Varela, 587

U.S. 176, 180, 185, 189 (2019); see id. at 180 (noting that an opinion

below described the lower court’s holding as a “palpable evasion” of

Supreme Court precedent) (citation omitted).

2

17

Rather, the court observed that, in the particular circumstances of that case, plaintiffs “identified specific

materials that appear to be missing from the record,”

such as specific evidence that supported a particular

factual assertion. Id. at *11; see also id. at *12 (expressing skepticism that “a decision as important as whether

to repeal DACA would be made based upon a factual

record of little more than 56 pages”). The court’s casespecific determination in that mandamus context does

not conflict with the decision below, which determined

that a privilege log is not required given petitioner’s

failure to identify any specific reason to doubt the completeness of the administrative record certified by the

Service. See Pet. App. 12a-13a.

The Second Circuit also recognized that “review of

deliberative memoranda reflecting an agency’s mental

process * * * is usually frowned upon,” but explained

that, “in the absence of formal administrative findings,” those materials “may be considered by the court

to determine the reasons for the decision-maker’s choice.”

Nielsen, 2017 U.S. App. LEXIS 26821, at *13 (emphasis

added; citation omitted). The court’s view that some deliberative materials may be part of the record in Nielsen thus does not speak to the completeness of the record in this case, where the agency did make formal findings and provided a contemporaneous explanation necessary for judicial review. C.A. E.R. 647-727; see Overton Park, 401 U.S. at 420.

Petitioner also relies on an unpublished order from

the Fourth Circuit. See Doc. No. 70, Defenders of Wildlife v. Department of the Interior, No. 18-2090 (Feb. 5,

2019). In that order, the Fourth Circuit granted a motion to complete an administrative record and required

submission of a privilege log, but it provided no reasons

18

for its ruling. That unexplained disposition is not inconsistent with the decision of the court of appeals, which

specifically recognized that a privilege log may be required in some circumstances, see Pet. App. 12a-13a. In

any event, that the Fourth Circuit issued a one-page,

unexplained order signed only by the Clerk of Court

confirms that it intended to resolve the evidentiary dispute before it rather than announce a broader rule.

b. Petitioner also contends that district courts “are

sharply divided on the question of whether deliberative

documents are part of the administrative record.” Pet.

10; see Pet. 10-13. But this Court ordinarily does not

grant review to resolve conflicts among decisions of district courts. See Sup. Ct. R. 10; see also Camreta v.

Greene, 563 U.S. 692, 709 n.7 (2011) (“A decision of a

federal district court judge is not binding precedent in

either a different judicial district, the same judicial district, or even upon the same judge in a different case.”)

(citation omitted).

What is more, petitioner overstates (Pet. 11) the extent of disagreement between the district court decisions petitioner invokes and the decision of the court of

appeals in this case. See, e.g., State v. U.S. Immigration & Customs Enforcement, 438 F. Supp. 3d 216, 219

(S.D.N.Y. 2020) (identifying “two case-specific factors

* * * weighing in favor of compelling defendants to produce a privilege log”); South Carolina Coastal Conservation League v. Ross, 431 F. Supp. 3d 719, 725 (D.S.C.

2020) (agreeing with the D.C. Circuit’s view that, because “deliberative materials go towards the subjective

motivation of the decisionmakers, they are not considered part of the administrative record,” but requiring a

privilege log in the particular circumstances of that

case). And again, the fact that a court orders the

19

production of a privilege log in particular circumstances

is consistent with the decision below, which specifically

left open “the precise circumstances under which a district court can order the production of a privilege log.”

Pet. App. 13a. In any event, given the consensus between the only two courts of appeals to address the

question in precedential decisions and the longstanding

view of the circuit with the greatest expertise on administrative law matters, contrary district court rulings

would offer no persuasive reason for this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

TODD KIM

Assistant Attorney General

ROBERT J. LUNDMAN

JOAN M. PEPIN

ROBERT P. STOCKMAN

Attorneys

DECEMBER 2024