UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________) OCEANA, INC., ) ) Plaintiff, ) ) v. ) Civil Action N o. 15-1220 (ESH) ) PENNY PRITZKER, in her official capacity ) as Secretary of the Unite d States Department of ) Commerce, et al. ) ) Defendant. ) __________________________________________)

MEMORANDUM OPINION The motion before the Court pres ents a challenging legal issue about the composition of the administrative record in a n arbitrary-and- capricious challe nge to agency action: whether deliberative-process documents are part of the “whole record” f or purposes of judicial review. In the underlying action, plaintiff Oceana, Inc. (“Oceana”), a non profit advocacy organization, challenges a final rule promulgated by the National Marine Fish eries Service (“NMFS”) in order to carry out the agenc y’s statutory mandate related to bycatch reporting. 1 Oceana now moves to

1 “Bycatch” refers to marine li fe, which, during the course of commercial fishing operations, is inadvertently captured or destr oyed, and which is not ultimatel y sold or released alive. See 16 U.S.C. § 1802(2) (defining “bycatch ” as “fish which are harvest ed in a fishery, but which are not sold or kept for personal use, a nd includes economic discards a nd regulatory discards,” but does not include “fish released alive under a recreational catch and release fishery management program”); see also 50 C.F.R. § 600.350(c) (defining “bycat ch” as “fish that are h arvested in a fishery, but that are not sold or ke pt for personal use,” inclu ding “the discard of whole fish at sea or elsewhere . . . and fishing mortality due to an encounter wi th fishing gear tha t does not result in capture of fish”).2 compel defendants to complete th e administrativ e record by prep aring a privilege log that includes all documents withhel d on the grounds of the deliberat ive-process privilege. It is undisputed that the NMFS di d not include in the record nu merous documents that defendants claim are protected f rom disclosure by the deliberat ive-process privilege, and it is undisputed that the NMFS did not do cument the omissions in a pr ivilege log. Oceana reasons that the administrative recor d is incomplete w ithout those docu ments, or, at a minimum, without a privilege log detailing the om issions. Defendants respond th at the record is already complete, arguing that deliberative-proce ss documents are not part of the administrative record and consequently need not be logged a s privileged. Upon considerat ion of the parties’ briefs, 2 and for the reasons that follow, the Court agrees with defendants. Oceana’s motion will therefore be denied.
BACKGROUND This case arises under the Magnus on-Stevens Fishery Conservatio n and Management Act, 16 U.S.C §§ 1801–1884. The Magnuson-Stevens Act sets fort h the legal framework to “conserve and manage the fisher y resources” of the United State s. See id. § 1801(b)(1). The Magnuson-Stevens Act was amended in 1996 to require regional fi shery councils or the Secretary of the NMFS to create fishery management plans that “ establish a standardized reporting methodology to assess th e amount and type of bycatch occurring in the fishery and

2 Before the Court are Oceana’s motion to compel (Pl.’s Mot., Apr. 16, 2016, ECF No. 13), defendants’ opposition (Defs.’ Opp’n, Apr. 29, 2016, ECF No. 14 ), Oceana’s reply (Pl.’s Reply, May 6, 2016, ECF No. 15), and both partie s’ supplemental briefs (Pl.’s Suppl. Br., July 15, 2016, ECF No. 17; Defs.’ Suppl. B r., July 20, 2016, ECF No. 18). In addition, the Court heard oral argument on this matter on June 21, 2016. Following the hearin g, the Court ordered defendants to produce 25 documents for in camera review. (Minute Order, June 21, 2016.) The motion before the Court is resolved a s a matter of law, and thus, the in camera review did not affect the disposition of this motion.3 include conservation and management measures that . . . minimiz e bycatch[] and . . . the mortality of bycatch.” Pub. L. No. 104-297, 110 Stat. 3559 (19 96) (codified as amended at 16 U.S.C. § 1853(a)(11)). Pursuant to this amendment , on June 30, 2015, the NMFS promulga ted as a final rule an “omnibus amendment” for a sta ndardized bycatch reporting method ology (“SBRM”) for all thirteen of the federal fishe ries in the Northeast region. 80 Fed. Reg. 37,182 (June 30, 2015). Oceana thereafter filed this l awsuit, alleging that the 2015 SB RM omnibus amendment “fails to address . . . fundamental legal fla ws” of the prior SBRM omnibu s amendment, perpetuates the NMFS’s “practice of underfunding and marginalizing its bycatch monitoring systems,” and therefore “undermine[ s] rather than advan ce[s] the goals establ ished by Congress.” (Compl. ¶¶ 4, 6, ECF No. 1.) This is not the first time that Oceana has brought a legal chal lenge to the NMFS’s attempts to comply with the Magnuson-Stevens Act’s SBRM mandate . In 2008, Oceana filed a similar lawsuit challenging the NMFS’s 2008 SBRM omnibus amendm ent for the same thirteen federal fisheries. Oceana v. Locke et al. , 725 F. Supp. 2d 46 (D.D.C. 2010) (“ Oceana I ”), rev’d , 670 F.3d 1238, 1239 (D.C. Cir. 2011) (“ Oceana II ”); see 73 Fed. Reg. 4736, 4737 (Jan. 28, 2008). In the prior action, this C ourt granted summary judgmen t in favor of defendants and dismissed the case with prejudice. Oceana I , 725 F. Supp. 2d at 70. 3 On appeal, the D.C. Circuit reversed the grant of summary j udgment and remanded to this Cou rt, with orders to “vacat[e] the

3 Prior to granting summary judgmen t for defendants, this Court affirmed, over Oceana’s objections, the magistrate judge’s decision denying Oceana’s mo tion to compel completion of the administrative record. Oceana v. Locke et al. , 634 F. Supp. 2d 49, 51 (D.D.C. 2009), affirming Oceana v. Locke et al. , No. 08-cv-318, 2009 WL 1491516 (D.D.C. May 28, 2009) (Kay, M.J.). The Court of Appeal s expressly did not reach the merits of the denial of the motion to compel when it reviewed the grant of summary judgment. Oceana II, 670 F.3d at 1243.4 Amendment and remand[]” the matter to NMFS “for further proceed ings.” Oceana II, 670 F. 3d at 1243. Following this Court’s re mand to NMFS, the agency pro mulgated as a final rule the new SBRM omnibus amendment at issue in this case. See 80 Fed. Reg. 37,182 (June 30, 2015). Oceana has again challenged the a gency action as “arbitrary, ca pricious, an abuse of discretion, or otherwise not in accordance with law.” (Compl. ¶ 21 (quotin g 5 U.S.C. § 706(2)(A)).) In connection with this lawsuit, t he NMFS filed the administrat ive record for its 2015 SBRM omnibus amendment r ulemaking. (Admin. Rec., Nov. 24, 2015 , ECF No. 7.) 4 After the parties met and conferred about the scope and contents of the r ecord, the agency filed a superseding, supplemented adminis trative record . (Suppl. Admin . Rec., Apr. 15, 2016, ECF No. 12.) The supplemented administrative record added “certain doc uments for which the parties were able to reach agreement.” ( Defs.’ Opp. at 4.) That suppl emented record also contained a modified privilege log that omitte d the entries for 21 document s that had been listed as withheld on the original privilege log as deliberative-process documents . (Pl.’s Mot. at 13 n.49.) 5 Oceana then filed this motion to compel. In this discovery dispute, Oceana asks the Court to order defen dants to (1) “conduct a complete review of its agenc y files, including email correspond ence involving key policymakers and stakeholder[s] involved with the development of the SBRM pr ocess”; (2) “produce the complete [] Administrative Reco rd by including all such respons ive documents from that search”; and (3) “in the case of any relevant document withheld based on deliberative process

4 Defendants submitted documents comprising the “2008 Administr ative Record”—those that pertain to the 2008 SBRM omnibus a mendment–and another set of d ocuments related to the 2015 SBRM omnibus amendment proce ss, the “2015 Administrative R ecord.” 5 Twenty of the 21 documents were logged as withheld based on t he deliberative-process privilege. The final document was claimed to be attorney work product. Defendants now maintain that all 21 documents a re predecisional and deliberati ve and that their inclusion in the original privilege log was unnecessary and accidental.5 claims (or any other asserted p rivilege or prot ection), to list each document on a privilege log with detail sufficient to allow O ceana and the Court to evaluat e the claim.” (Pl.’s Mot. at 3.) Given the nature of Oceana’s req uests, and given the undisputed fact that there are deliberative-process documents that have not been included in the record or logged as privileged, the disposition of the motion depe nds on whether deliberative m aterials should be included in the administrative record for judici al review, and if so, whether d efendants must file a privilege log documenting the materials withheld pursuant to that privilege.
ANALYSIS
I. LEGAL STANDARD As this case arises under the Ma gnuson-Stevens Act, the Court’s review is cabined by the Administrative Procedur e Act, 5 U.S.C. § 706 (“APA”). See 16 U.S.C. § 1855(f)(1). The APA directs courts to “review the w hole record or those parts of it cited by a party.” 5 U.S.C. § 706

. The Supreme Court has explained that the “whole record” refers to “the full administrative record that was before the [agen cy] at the time [it] made [its] decision.” 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, 97 (1977); see IMS, P.C. v. Alvarez , 129 F.3d 618, 623 (D.C. Cir. 1997) (“It is a widely accepted principle of administrative law that the courts base their review of an agency’s actions on the materials that were before the agency a t the time its decision was made.”); Walter O. Boswell Mem’l Hosp. v. Heckler , 749 F.2d 788, 792 (D.C. Cir. 1984) (“If a court is to review a n agency’s action fairly, it should have be fore it neither more nor less information than did the agenc y when it made its decision.”). 6 As a general matter, “[t]he task of

6 The parties agree that the “w hole record” includes “all docum ents and materials that the agency directly or indirectly c onsidered.” (Pl.’s Suppl. Br. a t 1 (quoting Maritel, Inc. v. Collins , 422 F. Supp. 2d 188, 196 (D.D.C. 2006)); Defs.’ Suppl. Br. at 1 (quoting Pac. Shores Subdiv.,6 the reviewing court is to apply t he appropriate APA standard of review to the agency decision based on the record the agency pres ents to the reviewing court. ” Florida Power & Light Co. v.
Lorion , 470 U.S. 729, 743–44 (1985) (citation omitted). The agency whose action is challe nged “is entitled to a strong presumption of regularity that it properly designated the administrative record.” Dist. Hosp. Partners, L.P. v. Sebelius , 971 F. Supp. 2d 15, 20 (D.D.C. 2013) (“ Dist. Hosp. I ”), affirmed sub nom. Dist. Hosp. Partners, L.P. v. Burwell , 786 F.3d 46 (D.C. Cir. 2015) (“ Dist. Hosp. II ”) (quoting Pac. Shores Subdiv., Cal. Water Dist. v. U.S. Army Corps of Eng’rs , 448 F. Supp. 2d 1, 5 (D.D.C. 2006)). Because of this presumption, “[s]upplementation of the administrative record is the exception, not the rule.” Id. (quoting Pac. Shores , 448 F. Supp. 2d at 5)). There are two grounds on which a party may seek “supplementatio n” of the administrative record. First, a party may request the disclosure of “evidence that should have been properly a part of the adminis trative record but was exclu ded by the agency.” Id . (quoting WildEarth Guardians v. Salazar , 670 F. Supp. 2d 1, 5 n.4 (D.D.C. 2009)). For clarity, the Co urt will refer to compelling discovery on the first ground as completion of the administrative record. Second, a party may request disclo sure of “extrajudicial eviden ce that was not initially before the agency but the party believes s hould nonetheless be included in the administrative record.” Id

. (quoting WildEarth Guardians , 670 F. Supp. 2d at 5 n.4). The Court will refer to compellin g discovery on the second ground as supplementation of the administrative record. Oceana fashions its motion as one for completion , arguing that the agency omitted from the record

Cal. Water Dist. v. U.S. Army Corps of Eng’rs , 448 F. Supp. 2d 1, 4 (D.D.C. 2006)).). However, the gravamen of the dispute befo re the Court is whether predeci sional and deliberative documents are part of the “whole record” that the agency “direc tly or indirectly considered.”7 materials that it directly or indirectly considered in making i ts decision. ( See Pl.’s Mot. at 3 (“The Administrative Record . . . fails to meet minimum standar ds of completeness”).) Courts may not compel an agency to complete the administrative record unless the moving party can overcome the presumption of regularity. Dist. Hosp. I , 971 F. Supp. 2d at 20. In order to do so, the party seeki ng completion must present “n on-speculative, concrete evidence to support their belief that the specific documents allegedly m issing from the administrative record were directl y or indirectly consi dered by the actual dec ision makers involved in the challenged agency action.” Id. (citing WildEarth Guardians , 670 F. Supp. 2d at 5). The moving party “must identify the materia ls allegedly omitted from the r ecord with sufficient specificity, as opposed to merely proffering broad categories of documents and data that are ‘likely’ to exist as a result of other documents that are included in the administra tive record.” Id . at 20–21 (quoting Banner Health v. Sebelius, 945 F. Supp. 2d 1, 17 (D.D.C. 2013)). 7 In challenges to agency action, the deliberative process privil ege protects from discovery materials that are “pre-deci sional” and “deliberative.” See, e.g. , Judicial Watch, Inc. v. Department of Energy , 412 F.3d 125, 129 (D.C. Cir. 2005). “P re-decisional” documen ts are

7 Other district courts in this C ircuit have noted that there e xists “some confusion” about the showing a party must make to jus tify a court order to complete the administrative record. E.g. , Univ. of Colorado Health at Mem'l Hosp. v. Burwell , 151 F. Supp. 3d 1, 13 (D.D.C. 2015) on reconsideration , 164 F. Supp. 3d 56 (D.D.C. 2016) (citing The Cape Hatteras Access Pres. Alliance v. U.S. Dep't of Interior , 667 F. Supp. 2d 111, 113 (D.D.C. 2009)). As Judge Contreras explained, the term “supplement” has been used to describe situ ations both where a party claims the record is incomplete (“recor d completion”) and where a party seeks extra-record material (“record supplementation”). See id . (citing Cape Hatteras Access Pres. Alliance , 667 F. Supp. 2d at 113). “Perhaps because of tha t dual use, courts in this district have regul arly invoked the language from [record supplementation cases] —and have asked wh ether a party has shown the existence of one of the ‘unusual circumstances’” required for r ecord supplementation requests, even when considering a request for record completion

. Id. Because this motion is resolved on different grounds, the Court need no t address the parties’ disp ute over whether Oceana must show “unusual circumstances” t o prevail on its motion to compel completion of the record.8 those “prepared in order to assist an agency decisionmaker in a rriving at his decision rather than to support a decision already made.” Nat’l Ass’n of Home Builders v. Norton , 309 F.3d 26, 39 (D.C. Cir. 2002) (citation and quotation marks omitted). “Deli berative” materials are those that “reflect[] the give-and-take of the consultative process.” Id. The gravamen of the present dispute is whether these prede cisional and deliberative documen ts are part of the administrative record.
II. APPLICATION In this case, the documents that Oceana seeks to compel exist. If Oceana were correct that these predecisional and delib erative documents are properl y part of the “whole record,” the presumption of regularity woul d not be an obstacle to Oceana’s requests. However, Oceana cannot overcome the “insurmountab le hurdle” that, in arbitrary- and-capricious challenges to agency action, any documents that fall under the deliberative p rocess privilege “are unavailable under the clear command of the D.C. Circuit.” See Blue Ocean Institute, et al. v. Gutierrez et al. , 503 F. Supp. 2d 366, 371–72 (D.D.C. 2007) (citing In re Subpoena Duces Tecum Served on Office of Comptroller of Currency , 156 F.3d 1279, 1279 (D.C. Cir. 1998)). Consequently, Oceana cannot demonstrate that the record is incomplete. In many challenges to agency action in which parties seek compl etion or supplementation of the record, it is not clear whether the sought-after documen ts actually exist. See, e.g. , Dist. Hosp. I, 971 F. Supp. 2d at 20–21. That is not an issue here. First, there are 21 documents that were initially omitted from the administrative record and logge d as privileged. When defendants filed the supplemented record, t hose 21 documents were not incl uded as part of the record, and the entries were deleted from the privilege log. Defendants have also conceded that there exists “numerous” “email exchanges, drafts of documents, and other del iberative documents.” ( See9 Defs.’ Opp., Decl. of John K. Bulla rd ¶ 9.) Defendants later r epresented that “[t]he total universe of all non-record documents initial ly excluded from the record is approximately 5,000 documents.” (E-mail from Hubert Yang, U.S. Dep’t of Justice, E nvtl. & Natural Res. Div., to Brian Gilmore, Law Clerk to the Hon. Ellen Segal Huvelle (July 6, 2016, 8:59 p.m. EST).) As this Court has previously not ed, “[t]he law is clear: predec isional and deliberative documents ‘are not part of the a dministrative record to begin w ith,’ so they ‘do not need to be logged as withheld from the administrative record.’” Oceana I, 634 F. Supp. 2d at 52 (quoting Nat’l Ass’n of Chain Drug Stores , 631 F. Supp 2d at 27). Then-Chief Judge Lamberth’s opinion is instructive in this regard: Deliberative documents are excl uded from the record because, wh en a party challenges agency action as arbitrary and capricious, the reaso nableness of the agency’s action “is judged in acco rdance with its stated reason s.” “[T]he actual subjective motivation of agency decisionmakers is immaterial as a matter of law– unless there is a show ing of bad faith or improper behavior.” Nat’l Ass’n of Chain Drug Stores , 631 F. Supp 2d at 27 (quoting In re Subpoena Duces Tecum , 156 F.3d at 1279). As “immaterial to the court’s decision, [pr edecisional a nd deliberative documents] are not designated part of the administrative record that forms the basis of the court’s decision.” Id. (citing In re Supoena Duces Tecum , 156 F.3d at 1279). This has been the consistent posi tion of courts in this jurisdi ction. See, e.g., Am. Petroleum Tankers Parent, LLC v. United States, 952 F. Supp. 2d 252, 267 (D.D.C. 2013) (“the Defendants are entitled to rely on the deliberative process pri vilege, and are not required to submit a log of privileged documents”); Nat'l Ass'n of Chain Drug Stor es v. U.S. Dep't of Health and Human Serv., 631 F.Supp.2d 23, 27 (D.D.C. 2009), rev'd on other grounds, 670 F.3d 1238 (D.C. Cir. 2011) (“Defendants do no t need to produce a privileg e log describing documents withheld from the administrative record.”); General Elec. Co. v. Jackson, 595 F. Supp. 2d 8, 1810 (D.D.C. 2009) (rejecting argument that agency's “practice of ex cluding irrelevant and predecisional deliberative documents from the administrative recor d results in a skewed record,” because “irrelevant documents should be excluded from the recor d,” and “an agency generally may exclude material that reflects internal deliberations”); Stand Up for California! 71 F. Supp. 3d at 123 (“[P]rivileged and deliber ative materials are not par t of the administrative record as a matter of law.”); Order at 2–3, Greater Yellowstone Coal. v. Kempthorne, No. 07–CV–2111, 2008 WL 2900439 (D.D.C. May 23, 2008) ( Dkt. No. 54) (denying mo tion to compel privilege log of unproduced deliberative mat erials because “[a]ny evidenc e of the [agency's] internal deliberative work is irreleva nt” and plaintiffs did not show th at administrative record was incomplete); Blue Ocean Inst. v. Gutierrez, 503 F. Supp. 2d 366, 372–73 (D.D.C. 2007) (denying motion to compel completion of adm inistrative re cord, finding t hat deliberative documents “are not a part of the administrativ e record when an agency decision is challenged as arbitrary and capricious,” and rejecting plainti ff's argument that agency mus t assert deliberative process privilege); see also Norris & Hirshberg, Inc. v. SEC, 163 F.2d 689, 693 (D.C. Cir. 1947) (“[I]nternal memoranda mad e during the decisional process [ ] are never included in a record.”). Oceana’s reliance on Nat’l Courier Ass’n v. Bd. Of Gov. of Fed. Reserve Sys. , 516 F.2d 1229 (D.C. Cir. 1975), to argue to th e contrary appears to be m isplaced. In that case, the petitioners sought disc losure of the redact ed portions of inter nal agency memoranda, the remainder of which had been turned over by the agency as part o f the administrative record. Id. at 1241. The D.C. Circuit reasoned that, if the petitioners we re correct that “the deleted material contains facts not otherwise in the record. . . .[,] [s]uch fac ts would certainly constitute ‘evidence’ which should be i ncluded in the record.” Id. The Court of Appeals conducted an in11 camera review before finding “no signi ficant omission” and denying the petition. Id. at 1243. Indeed, “[p]urely factual materi al is, after all, not deliberat ive, and the agency has no good reason to withhold it.” Id. But Oceana has not offered evidence–or even alleged–that the communications it seeks contain f actual materia l not otherwise included in the record. Moreover, Nat’l Courier cannot carry the day for Oceana i n light of subsequent D.C. Cir cuit decisions. Subsequent to Nat’l Courier , the D.C. Circuit explained t hat, where, as here, agency action has been challenged as ar bitrary and capricious, predeci sional and deliberative materials which have not been included in th e administrative record are “ immaterial” absent a showing of bad faith or improper behavior by the agency. In re Subpoena Duces Tecum , 156 F.3d at 1279; see San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n , 789 F.2d 26 (D.C. Cir 1986) (en banc) (requiring a showing of bad faith before ev aluating an agency’s internal deliberations). The Court of App eals has discouraged courts fr om delving into the internal deliberations of agencies, even t o evaluate a claim of privileg e, absent a showing of bad faith. Sitting en banc in San Luis Obispo Mothers for Peace , the Court of Appeals denied the petitioner’s request to supplemen t the administrative record wi th transcripts of agency meetings. 789 F.2d at 46. Interpreting the S upreme Court’s opinion in Citizens to Preserve Overton Park v. Volpe , 401 U.S. 402 (1971), the Court of App eals held that the partyseeking supplementation must show that the agency had acted “improperly or in bad faith ” before the court could order the agency to disclose the transcripts. Id. at 45 (plurality opinion). 8 But Oceana does not claim bad faith on the part of NMFS.

8 Judge Bork wrote for a plurality of the D.C. Circuit as to th at section of the opinion. But a majority of the Circuit agreed tha t there had to b e a showing o f bad faith in order to supplement the record. According to the pl urality, the hearing transcript itself could not furnish the evidence12 The presumed exemption from the administrative record of delibe rative process materials makes good sense. The deliberativ e process privilege is aimed at “enhanc[ing] the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.” Dep't of Interior v. Klamath Water Users Protective Ass'n , 532 U.S. 1, 8–9, (2001) (citation and quotation marks omitted). Protecting thos e communications “rests on the obvious realization that official s will not communicate candidl y among themselves if each remark is a potential item of discovery and front page news.” Id. The courts’ incursion into the deliberations of agencies, even t o evaluate the deliberative pr ocess privilege, should not extend to situations where there is no evidence of bad faith. As Judg e Bork explained, [S]uch cases [where a court is warranted in examining the delib erative proceedings of the agency] must be the rare exception if agenci es are to engage in uninhibited and frank discussions during their deliberations. Were courts regularly to review the transcr ipts of agency deliberative proc eedings, the discussions would be conducted with judicial scrutiny in mind. Such agency proceedings would then be useless both to the agency and to the courts. We think the analogy to the deliberative pr ocesses of a court is an apt one. Without the assurance of secrecy, the court could not fully perform its fun ctions. San Luis Obispo Mothers for Peace , 789 F.2d at 45 (en banc) (p lurality opinion). The Court is also mindful that requiring all predecisional and deliberative documents to be logged in a Vaughn -type index would place a signifi cant burden on agencies whose decisions are challenged as arbitrary a nd capricious. Not only would pla intiff’s position “transform the process of judicial review of a dministration decisions,” it wou ld, as is the case in FOIA litigation, require the agency to c ompile “all internal communi cations among agency officials

of bad faith; rather the requi site showing had to be made prior to any in camera review. Id. at 45. Judge Mikva, writing separately, would have required less: an “allegation, strongly supported by the record, affidav its, and specific references to the transcripts, that the agency has acted in bad faith or with improper purpose.” Id. (Mikva, J., concurring). In other words, Judge Mikva would have allowed the conte nt of the transcript itself t o be part of the evidence of bad faith, but a showing bad faith w ould still be required.13 pertaining to the claimed defi ciency, catalogue them, and claim the deliberative process privilege where appropriate, which m ay be as to all of them.” Blue Ocean Institute, et al. v. Gutierrez
et al. , 503 F. Supp. 2d 366, 371 (D.D.C. 2007). In this case, defend ants would be required to review and log approximately 5,000 documents. The review would , by defendants’ estimate, take four to five staff member s and one technical assistant app roximately one month to complete. ( See e-mail from H. Hubert Yang, U.S. D ep’t of Justice, Envtl. & Natural Res. Div., to Brian Gilmore, Law Clerk to the H on. Ellen Segal Huvelle (July 8, 201 6, 5:38 p.m. EST).) In addition, challenges to the appropriaten ess of the withholding of documen ts would require a court to determine which documents were di rectly or indirectly considere d by a decision maker, which is a highly factual inquiry that c ould well involve discovery and evidentiary hearings. The agency resources would not be well spent , given that those materials a re “immaterial as a matter of law.” See In re Subpoena Duces Tecum , 156 F.3d at 1279.
CONCLUSION Accordingly, and for the reasons stated above, plaintiff’s moti on to compel is DENIED

. A separate Order accompanies this Memorandum Opinion.

/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge Date: November 4, 2016