UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE CAYUGA NATION, et al.,
Plaintiffs,
v.
RYAN ZINKE, et al., Civil Action No. 17-cv-1923 (CKK)
Defendants,
THE CAYUGA NATION COUNCIL,
Defendant-Intervenor.
MEMORANDUM OPINION
(March 27, 2018)
The Cayuga Nation is a federally recognized Indian Nation. This case deals with
decisions by the Bureau of Indian Affairs (“BIA”) and the Assistant Secretary for Indian Affairs
of the Department of the Interior (“DOI”) that recognized one faction within the Cayuga
Nation—now referring to itself as the “Cayuga Nation Council,” though alternatively referred to
in the administrative record as the “Halftown Group”—as the governing body of the Cayuga
Nation for the purposes of certain contractual relationships between that Nation and the United
States federal government. These decisions were the product of an adversarial process between
the Cayuga Nation Council and Plaintiffs, a rival faction within the Cayuga Nation who assert
that they represent the Nation’s rightful government. Plaintiffs have filed this lawsuit seeking to
overturn the BIA and DOI decisions.
The Court shall address two pending motions in this Memorandum Opinion: Federal
Defendants’ [16] Partial Motion to Dismiss, and Plaintiffs’ [23] Motion to Supplement the
Administrative Record. Upon consideration of the pleadings, 1 the relevant legal authorities, and
1
The Court’s consideration has focused on the following documents:
the record as a whole, the Court GRANTS Federal Defendants’ Partial Motion to Dismiss and
DENIES Plaintiffs’ Motion to Supplement the Administrative Record.
I. BACKGROUND
This case arises from a long-standing dispute between rival factions within the Cayuga
Nation. Plaintiffs allege that the Cayuga Nation has long been governed by a Council of Chiefs
selected and overseen by “Clan Mothers,” whom Plaintiffs purport to represent in this litigation.
Compl., ECF No. 1, ¶¶ 1-2. Plaintiffs assert that “Cayuga Nation leaders are selected pursuant to
the Great Law of Peace, which gives that responsibility of nomination and removal to the women
who serve as Clan Mothers, based on input from the members of their clans.” Id. ¶ 31.
According to Plaintiffs, this is a “deliberative and consensus-based” process for selecting leaders.
Id. ¶ 33. Plaintiffs allege that the United States federal government had previously recognized
this form of governance for the Cayuga Nation, and rejected efforts over the years by a faction
known as the “Halftown Group” to secure support for the use of a mail-in survey to reconfigure
the Cayuga Nation’s government. Id. ¶¶ 34-36.
• Fed. Defs.’ Partial Mot. to Dismiss, ECF No. 16 (“Defs.’ Mot.”);
• Pls.’ Opp’n to Fed. Defs.’ Partial Mot. to Dismiss, ECF No. 19 (“Pls.’ Opp’n”);
• Fed. Defs.’ Reply in Support of Partial Mot. to Dismiss, ECF No. 33 (“Defs.’ Reply”);
• Pls.’ Mot. to Supplement the Administrative Record and Expedite Discovery, ECF No.
23 (“Pls.’ Mot.”);
• Fed. Defs.’ Opp’n to Pls.’ Mot. to Supplement the Administrative Record, ECF No. 30
(“Fed. Defs.’ Opp’n”);
• Def. Int.’s Opp’n to Pls.’ Mot. to Supplement the Administrative Record, ECF No. 34
(“Def. Int.’s Opp’n”); and
• Pls.’ Reply in Support of Mot. to Supplement the Administrative Record, ECF No. 36
(“Pls.’ Reply”).
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
2
However, in June 2016, Defendant Bruce W. Maytubby, the Eastern Regional Director of
the BIA, revealed to Plaintiffs that the Halftown Group intended to conduct a mail-in survey in
order to create a new government for the Cayuga Nation, and that it was Mr. Maytubby’s view
that the proposed survey “would be a viable way of involving the Cayuga people in a
determination of the form and membership of their government.” Id. ¶¶ 37, 40. Plaintiffs
contend that this determination was the result of secret meetings between the BIA and the
Halftown Group, from which Plaintiffs were excluded. Id. ¶ 38. Plaintiffs objected to the
proposed survey, arguing that, among other things, it violated Cayuga law. Id. ¶ 42.
On December 15, 2016, Defendant Maytubby issued a decision “(1) recognizing the
Halftown Group as the government of the Cayuga Nation for purposes of entering into a contract
under the ISDEAA [Indian Self-Determination and Education Assistance Act] and declining to
recognize Plaintiffs for such purposes; (2) awarding an ISDEAA contract grant to the Halftown
Group, on behalf of the Cayuga Nation; and (3) declining to award an ISDEAA contract to
[Plaintiffs] on behalf of the Cayuga Nation.” Id. ¶ 54. Plaintiffs characterize this decision as a
reversal of “longstanding federal policy,” and challenge it on a number of substantive and
procedural grounds. Id. ¶¶ 55-81.
Defendant Maytubby’s December 15, 2016 decision indicated that it constituted final
agency action, id., Ex. A at 15, and was accompanied by a delegation of authority to Mr.
Maytubby to take such action, id. ¶ 55. Nonetheless, Plaintiffs did not file a lawsuit challenging
this decision when it was issued. Instead, Plaintiffs filed a notice of appeal with the Interior
Board of Indian Appeals (“IBIA”) arguing that additional administrative review was appropriate
because the delegation of authority to Defendant Maytubby to take final agency action was
ineffective. Id. ¶¶ 82-83. The IBIA docketed the appeal and requested briefing on the delegation
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issue. Id. ¶¶ 84-85. Shortly thereafter, Defendant Michael Black, the then-Acting Assistant
Secretary – Indian Affairs, withdrew the contested delegation to Mr. Maytubby, and himself
assumed jurisdiction over Plaintiffs’ administrative appeal. Id. ¶¶ 86-87. The parties submitted
briefs on the merits of the dispute to Defendant Black, who ultimately issued a decision on July
13, 2017, denying Plaintiffs’ appeal of Defendant Maytubby’s decision. Id. ¶¶ 93-95.
On September 20, 2017, Plaintiffs filed this lawsuit, claiming that Defendants had
violated the Administrative Procedure Act (“APA”) and Plaintiffs’ constitutional right to due
process. Id. ¶¶ 100-65. As relief, Plaintiffs ask that both Mr. Maytubby’s decision and Mr.
Black’s decision be declared unlawful and vacated, that the Court enjoin Defendants from
relying on the vacated decisions for any action by the DOI, that the individuals involved in
rendering these decisions be enjoined from further adjudicating the questions in this case, that
this matter be remanded to the BIA “for government to government consultation and, as
appropriate, decision by a neutral decision-maker on recognition and the Plaintiffs’ ISDEAA
application,” and that they be granted costs and attorneys’ fees. Id. at 26-27.
II. LEGAL STANDARDS
A. Motion to Dismiss for Lack of Jurisdiction
When a motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(1) is
filed, a federal court is required to ensure that it has “the ‘statutory or constitutional power to
adjudicate [the] case[.]’” Morrow v. United States, 723 F. Supp. 2d 71, 77 (D.D.C. 2010)
(emphasis omitted) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)).
“Federal courts are courts of limited jurisdiction” and can adjudicate only those cases or
controversies entrusted to them by the Constitution or an Act of Congress. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In determining whether there is
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jurisdiction on a motion to dismiss, the Court may “consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198 (D.C. Cir. 2003) (citations omitted). “Although a court must accept as true all factual
allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule
12(b)(1),” the factual allegations in the complaint “will bear closer scrutiny in resolving a
12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v.
Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (citations omitted).
B. Motion to Dismiss for Failure to State a Claim
Under Rule 12(b)(6), a party may move to dismiss a pleading on the grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]
complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if
accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
C. Motion to Supplement the Administrative Record
The APA 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.
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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). 2
“[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.” Id. (quoting Motor & Equip. Mfrs. Ass’n, Inc. v. EPA, 627
F.2d 1095, 1105 (D.C. Cir. 1979)); see also 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.”) (citation omitted).
III. DISCUSSION
The Court will grant Federal Defendants’ motion and dismiss Plaintiffs’ claims against
Defendant Michael Black in his individual capacity. Mr. Black is not a proper Defendant in his
individual capacity because this case challenges official government actions, and the relief
Plaintiffs seek is available only from the official Defendants—not Mr. Black personally. The
Court will deny Plaintiffs’ Motion to Supplement the Administrative Record because Plaintiffs
have not shown that the decisionmaker considered the documents Plaintiffs seek to add to the
record, either directly or indirectly, when rendering the final agency action at issue in this case.
2
There are circumstances under which a plaintiff in an APA case can seek to add evidence to the
administrative record that was not considered by the decisionmaker (e.g., where plaintiff
demonstrates that defendant should have consider certain factors but failed to do so). Plaintiffs
in this case have made it clear that they are not raising such an argument. See Pls.’ Reply at 3.
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A. Federal Defendants’ Partial Motion to Dismiss
The Court begins by addressing Federal Defendants’ Partial Motion to Dismiss. Most of
the Defendants named in this lawsuit are federal agencies or individuals sued in their official
capacities. See Compl., ¶¶ 16-21. However, Plaintiffs have sued Defendant Michael Black in
both his official and individual capacities. Id. ¶ 17. Plaintiffs allege:
Defendant Michael Black is sued in his official capacity as the
Acting Assistant Secretary – Indian Affairs, a title he purportedly
held when he adjudicated Plaintiffs’ appeal from Defendant
Maytubby’s December 15, 2016 Decision. He is sued in his
individual capacity as well. Prior to assuming the title Acting
Assistant Secretary – Indian Affairs and adjudicating the appeal of
the Regional Director’s decision, Black participated in the decision
itself, first as BIA Director and, on information and belief, later as
Special Advisor to the BIA Director.
Id. Defendants move to dismiss Plaintiffs’ claims against Defendant Black in his individual
capacity. 3
The thrust of Defendants’ Partial Motion to Dismiss is that Plaintiffs cannot sustain a
claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), and that Defendant Black is entitled to qualified immunity from liability for civil
damages. See generally Defs.’ Mot. This focus is somewhat misguided. As Plaintiffs concede,
there is no Bivens claim asserted in this case. See Pls.’ Opp’n at 1 (“Defendants seek to dismiss
a claim Plaintiffs have not brought”). A Bivens claim “is an action against a federal officer
seeking damages for violations of the plaintiff’s constitutional rights.” Simpkins v. D.C. Gov’t,
108 F.3d 366, 368 (D.C. Cir. 1997). Plaintiffs here do not seek damages. They seek only
3
Some portions of Defendants’ motion suggest that it seeks the dismissal of Plaintiffs’ entire
lawsuit, see, e.g., Defs.’ Mot. at 1 (requesting that the Court “dismiss the Complaint”), but the
Court understands the motion to actually seek only the dismissal of Plaintiffs’ claims against
Defendant Black in his individual capacity, see, e.g., id. at 12 (in conclusion portion of
Defendant’s motion, stating that “Plaintiffs’ claims as to Defendant Michael Black in his
individual capacity should be dismissed”).
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declaratory and injunctive relief. Accordingly, the question before the Court is not whether a
Bivens remedy is available on the facts of this case. See Abou-Hussein v. Mabus, 953 F. Supp.
2d 251, 264 (D.D.C. 2013) (“Because the plaintiff seeks injunctive relief, which can be enforced
only against a federal agency, and not damages against an individual federal officer for the
alleged violation of the plaintiff’s constitutional rights, Bivens does not provide the plaintiff an
avenue for the relief he seeks.”). Instead, the question is whether it is appropriate to name a
government official in his individual capacity as a defendant in a case where the challenged
conduct constitutes official government action, and the relief sought can only be obtained from
official government actors.
The answer is clear: Defendant Black is not a proper defendant in this case in his
individual capacity. Plaintiffs have not alleged any way in which Mr. Black was involved in any
of the administrative proceedings challenged in this case in anything other than an official
capacity. Plaintiffs succinctly summarize their allegations against Defendant Black in his
individual capacity in their Opposition to Defendants’ Partial Motion to Dismiss, and all of those
allegations relate to Mr. Black’s exercise of his official duties. See Pls.’ Opp’n at 3-4 (arguing
that the individual capacity claim is based on, inter alia, Defendant’s participation in BIA
proceedings and hearing an appeal as the Assistant Secretary for Indian Affairs for the DOI). In
their Opposition, Plaintiffs make conclusory references to “ultra vires” conduct, and speculate
that it is “not clear” whether Defendant Black was acting in his official capacity, Pls.’ Opp’n at
4, but the Court is not persuaded. There is simply no plausible allegation that Mr. Black’s
involvement in the administrative proceedings below was undertaken in an individual capacity.
Moreover, the relief Plaintiffs seek cannot be obtained from Defendant Black in his
individual capacity. It can only be obtained from the Defendants in their official capacities.
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Plaintiffs ask that the Defendants not rely on the challenged decisions for any DOI actions going
forward, such as awarding or disbursing federal funds. Those are actions that only the official
Defendants in their official capacities can take or refrain from taking. The official-capacity
Defendants are also the parties who would decide what officials are involved in the further
adjudication of the federal government’s recognition of the governance of the Cayuga Nation,
and who would conduct “government to government consultation and, as appropriate, decision
by a neutral decision-maker on recognition and the Plaintiffs’ ISDEAA application.” Compl. at
27. Finally, the decisions Plaintiffs ask the Court to vacate and declare unlawful are official
decisions from government agencies, not of Defendant Black personally. In short, Plaintiffs are
asking this Court to declare unlawful and restrain official government actions, not actions of
Defendant Black in his personal capacity. The case is thus one against the government, not Mr.
Black as an individual. See Dugan v. Rank, 372 U.S. 609, 620 (1963) (“The general rule is that a
suit is against the sovereign if the judgment sought would expend itself on the public treasury or
domain, or interfere with the public administration, or if the effect of the judgment would be to
restrain the Government from acting, or to compel it to act.”) (internal quotations and citations
omitted).
Under these circumstances, numerous courts have held that claims against government
officials in their individual capacities are improper and should be dismissed. See Feit v. Ward,
886 F.2d 848, 858 (7th Cir. 1989) (holding that it was improper for plaintiff to have sued
government officials in their individual capacities because the policy challenged was that of the
government agency for which they worked and the relief sought was available from those
individuals only in their official capacities); Davidson v. United States Dep’t of State, 113 F.
Supp. 3d 183, 194 (D.D.C. 2015) (dismissing claim for injunctive relief against government
9
officials in their individual capacities because the relief sought could only be obtained by the
individuals in their official capacities); Leyland v. Edwards, 797 F. Supp. 2d 7, 12 (D.D.C. 2011)
(dismissing claim for injunctive relief against government official in his individual capacity
because “[i]njunctive relief . . . is not available against a defendant sued in his individual
capacity.”); Hatfill v. Gonzales, 519 F. Supp. 2d 13, 26 (D.D.C. 2007) (dismissing claims against
government officials in their individual capacities because “the relief [plaintiff] seeks can only
be provided by the government through government employees acting in their official capacities
. . .”).
The Court agrees with these authorities. Plaintiffs’ claims against Defendant Black in his
individual capacity are improper. The actions challenged in this lawsuit are official in nature,
and the relief sought would work against the Defendants in their official capacities only.
Accordingly, the Court will GRANT Defendants’ motion to dismiss Plaintiffs’ claims against
Defendant Black in his individual capacity. 4
B. Plaintiffs’ Motion to Supplement the Administrative Record
Next, the Court will deny Plaintiffs’ Motion to Supplement the Administrative Record. 5
Plaintiffs seek to supplement the record with three particular documents, as well as one broad
category of documents. The first particular document Plaintiffs seek to add to the record is a
June 8, 2016 letter from Defendant Maytubby to Ms. Anita Thompson, a representative of the
Plaintiffs. See Pls.’ Mot., Ex. A. In the letter, Mr. Maytubby states that he wanted to make
4
The Court’s conclusion does not require it to reach Defendants’ arguments about whether
Plaintiffs have pled a property interest. Regardless of that issue, Plaintiffs’ claims against Mr.
Black in his individual capacity are improper.
5
The Court notes that Plaintiffs’ Motion to Supplement the Administrative Record also included
a request that the Court order Defendants to provide Plaintiffs with discovery, and to do so on an
“expedited basis.” At a February 12, 2018 teleconference, the Court ordered that this portion of
Plaintiffs’ motion would be held in abeyance. Discovery is strongly disfavored in APA cases.
10
Plaintiffs aware of the Halftown Group’s “Statement of Support” campaign. Id. He briefly
describes the campaign and suggests that Plaintiffs contact Mr. Halftown or his associates if they
want further information about it, or if they would like to assist in the crafting of the campaign
documents. Id. Mr. Maytubby also states that “[t]he Bureau of Indian Affairs has been
consulted by Mr. Halftown and his group regarding a way to identify the Cayuga Nation’s
leadership and confirm or reaffirm the Cayuga Nation’s governing structure, and we have agreed
that under the current circumstances a ‘Statement of Support’ process would be a viable way of
involving the Cayuga people in a determination of the form and membership of their tribal
government.” Id. However, Mr. Maytubby asked Plaintiffs to be forthcoming if they had any
alternative proposals for determining the will of the Cayuga people. Id.
Another specific document Plaintiffs seek to add to the record is a June 7, 2016 e-mail
chain containing communications between an attorney for the Halftown Group and the DOI’s
Office of the Solicitor. See Pls.’ Mot., Ex. B. There are two brief e-mails on the chain, through
which the parties arrange a teleconference for June 8, 2016. Id. The last specific document
Plaintiffs seek to add to the record is a June 15, 2016 e-mail from an attorney for the Halftown
Group to DOI and BIA employees. See Pls.’ Mot., Ex. C. The e-mail provides the DOI and BIA
employees with a letter regarding the Cayuga Nation’s leadership. Id.
Finally, Plaintiffs seek an order that Defendants supplement the administrative record
with “[a]ll other documents containing, describing or referring to any other communication
between or among the Federal Defendants, the Halftown Group’s attorneys, agents or
representatives, that were considered, either directly or indirectly, by the BIA but have been
omitted from the administrative record by Federal Defendants prior to this action.” Pls.’ Mot. at
1. Federal Defendants and the Defendant-Intervenor oppose Plaintiffs’ motion.
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Plaintiffs’ motion shall be denied because Plaintiffs have not demonstrated that the
administrative record omits documents that were considered by Defendant Michael Black, either
directly or indirectly, when he made his July 13, 2017 decision, which is the final agency action
under review in this case. The administrative record should “include all documents and
materials that the agency directly or indirectly considered . . . [and nothing] more nor less.” Pac.
Shores, 448 F. Supp. 2d at 4. “In other words, the administrative record ‘should not include
materials that were not considered by agency decisionmakers.’” Id. (citation omitted).
“[A]bsent clear evidence, an agency is entitled to a strong presumption of regularity, that it
properly designated the administrative record.” Id. at 5.
Plaintiffs cannot overcome this presumption. Their motion is primarily based on the
argument that Defendant Maytubby considered the documents at issue when making his
December 15, 2016 decision. But Plaintiffs’ focus on this preliminary decision is misplaced,
because it is not the final agency action subject to judicial review by this Court. As described
above, although Defendant Maytubby’s December 15, 2016 decision purported to be a final
agency action, Plaintiffs did not file a lawsuit challenging the decision when it was issued.
Instead—perhaps for strategic reasons—they appealed that decision administratively. And,
despite the purported finality of Defendant Maytubby’s decision, Plaintiffs were successful in
obtaining additional administrative review. The delegation of authority that had been issued to
Mr. Maytubby to take final agency action was withdrawn. Plaintiffs were given an additional
opportunity to argue the merits of their case. Their appeal was considered, and eventually a new
decision on the merits of this dispute was issued by Defendant Black.
Because Plaintiffs were able to, and did, appeal Defendant Maytubby’s decision and
receive additional administrative process, that decision was not “final” for the purposes of APA
12
review. See Jicarilla Apache Nation v. U.S. Dep’t of Interior, 648 F. Supp. 2d 140, 146 (D.D.C.
2009) (“It is well-settled that interlocutory agency decisions are not final agency actions within
the meaning of the APA.”); Beverly Enterprises, Inc. v. Herman, 50 F. Supp. 2d 7, 12 (D.D.C.
1999) (“The Court concludes that these counts do not implicate final agency action due to
[plaintiff’s] administrative appeal of the Administrator’s determination . . .”); see also Oregon
Nat. Desert Ass’n v. McDaniel, 751 F. Supp. 2d 1145, 1149-51 (D. Or. 2010) (in case where
plaintiff chose to continue to press claim administratively by filing administrative appeal,
rejecting plaintiff’s argument that both the underlying administrative decision and the appellate
decision were final agency actions that could be reviewed by the court).
Instead, Defendant Black’s July 13, 2017 decision is the final agency action that is before
the Court. Accordingly, the Court must ensure that the administrative record in this case
includes those materials—and only those materials—that were considered when that decision
was rendered. Federal Defendants represent that the administrative record as certified
“represent[s] the universe of documents considered by [Defendant Black] in rendering his final
decision.” Fed. Defs.’ Opp’n at 2. They have provided a declaration from Defendant Black
attesting that the current administrative record “was the entirety of the administrative record that
was before me and which I consulted during my consideration of [Plaintiffs’] administrative
appeal of [Defendant Maytubby’s] Decision.” See Decl. of Michael S. Black, ECF No. 32-1, at ¶
7. Plaintiffs are unable to rebut this representation with anything other than speculation and
conclusory assertions. This is insufficient to overcome the presumption of regularity, and
accordingly Plaintiffs’ motion fails. See The Cape Hatteras Access Pres. All. v. U.S. Dep’t of
Interior, 667 F. Supp. 2d 111, 114 (D.D.C. 2009) (denying motion to supplement administrative
record because plaintiffs’ arguments were not “enough to overcome the strong presumption that
13
[the agency] properly designated the administrative record, and the plaintiffs have not introduced
any concrete evidence that” the documents were before the agency); WildEarth Guardians v.
Salazar, 670 F. Supp. 2d 1, 6 (D.D.C. 2009) (denying motion to supplement administrative
record because plaintiff could not “provide reasonable, non-speculative grounds demonstrating
that the [the document] itself was considered, either directly or indirectly, by the Secretary.”)
(emphasis in original).
IV. CONCLUSION
In sum, the Court GRANTS Federal Defendants’ Partial Motion to Dismiss and dismisses
Plaintiffs’ claims against Defendant Black in his individual capacity. Those claims are improper
because this case challenges official government actions, and the relief sought can only be
obtained by Defendants in their official capacities. In addition, the Court DENIES Plaintiffs’
Motion to Supplement the Administrative Record. Plaintiffs have not satisfied their burden of
demonstrating that the documents they seek to add to the administrative record were considered
when the final agency action under review was taken. An appropriate Order accompanies this
Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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