In Marino v. National Oceanic and Atmospheric Administration, 33 F.4th 593 (2022), the D.C. Circuit denied plaintiffs’ standing to challenge the National Oceanic and Atmospheric Administration’s (NOAA) decision that it lacked enforcement authority.  In particular, NOAA had disclaimed authority to enforce provisions of “special exception permits” that required SeaWorld to perform necropsies on its orca whales and forward the results to the agency.  The decision has implications for informational standing, the inaction doctrine, and the prohibition against “secret law.” 

Factual Background

The Marine Mammal Protection Act (MMPA), Pub. L. No. 92–522, 86 Stat. 1027(1972)(codified at 16 U.S.C. § 1361 et seq.), imposed a “moratorium on the taking and importation of marine mammals.” Id. § 1371(a).  However, the National Marine Fisheries Service (“NMFS”) could issue “special exception permits,” allowing the taking and importation of marine mammals for scientific research or public display, inter alia. See, id. § 1374(c).  But when it does so, NMFS must determine the appropriate provisions for special exception permits, and “specify . . . any . . . terms or conditions which [NMFS] deems appropriate.” Id. § 1374(b)(2)(D).

Plaintiffs, several marine scientists and animal welfare organizations, alleged that from 1979 until 1994 NMFS’ special exception permits “routinely” required permittees to “submit necropsies, clinical histories, and other medical records to NMFS” within thirty days of a marine mammal’s death (the “necropsy provisions”). Marino v. NOAA, Dkt. No. 18-2750, Complaint) ¶ 59., id. ¶ 70 (D.D.C.)(filed Nov. 27, 2018)(“Complaint”). “[P]ublic display facilities routinely submitted [such] necropsy and medical data to NMFS.” Interested members of the public and scientific community could then obtain such records from NMFS under the Freedom of Information Act (“FOIA”).  Id. at ¶71.[1]

This state of affairs ended in 1994, when Congress enacted the MMPA Amendments of 1994, Pub. L. No. 103-238, 108 Stat. 532 (the “1994 Amendments”).  Congress left untouched NMFS’ jurisdiction over the taking and importation of marine mammals.  However, Congress transferred authority over their subsequent “care and maintenance” to the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (“APHIS”). Complaint, supra, at ¶5.

Surprisingly, from 1994 until 2017 NMFS never publicly articulated a position regarding the continued applicability of necropsy provisions contained in pre-1994 special exception permits. Id. at ¶63. 

Early in 2016, in seeking to obtain information for her research on captive marine mammals, marine scientist Heather Rally attempted to ascertain NMFS’s position on the continued applicability of pre-1994 special exception permit necropsy provisions.  The issue assumed greater urgency, at least to marine scientists and animal welfare groups, in March 2016, when SeaWorld announced that Tilikum, a renowned orca whale in its custody, was ill and unlikely to recover. Id. at ¶82.  Between August 2016 and January 2017, People for the Ethical Treatment of Animals, Inc. (“PETA”), the Animal Welfare Institute (“AWI”), and Dr. Rally, inter alia, participated in several calls and email exchanges with officials from NMFS, the Fish and Wildlife Service (“FWS”), and the Marine Mammal Commission (“MMC”) regarding the issue. Id. at ¶83.  During these exchanges agency representatives never stated that the NMFS had already resolved the issue. Id. at ¶83.  Nor did agency officials offer any conclusion regarding the question.  Id.  Indeed, plaintiffs alleged, their efforts had precipitated NMFS’s internal evaluation of the question. That internal debate had included multiple intra-agency emails exchanges and a series of internal and inter-agency meetings with FWS and the MMC.  Id.

On January 6, 2017, Tilikum died.  Believing that Tilikum’s death triggered SeaWorld’s obligation to submit the orca’s clinical history and necropsy reports to NMFS, id. at ¶84, PETA advised NMFS of its position and requested that NMFS ensure SeaWorld’s compliance with the terms of the relevant permit.  Id.

NMFS continued to dither.  Finally, on March 10, 2017, NMFS announced its decision.  It concluded that “the necropsy provisions of the [SeaWorld’s] 1992 permit [had] effectively [been] extinguished by the 1994 amendments” and that APHIS had “jurisdiction of necropsies and associated reports.” Id. at ¶85.  Nonetheless, NMFS asserted that the memorandum setting forth the agency’s legal analysis was exempt from disclosure pursuant to the attorney-client privilege. Id. at ¶85.[2]  Allegedly, NMFS has continued to refuse to explain its conclusion regarding the scope of its jurisdiction.  Id.

Plaintiffs’ requests for necropsies and related documents for Kyara and Kasatka, two other orcas that died in SeaWorld’s custody in 2017, were denied in the summer of 2017.  NMFS referenced its March 10 decision in doing so.  Id. at ¶88. Later requests for information on other injured or ill orcas were denied by NMFS.  In doing so, the agency again relied, in whole or in part, on its March 10, 2017 decision that the 1994 MMPA amendments extinguished the necropsy provisions of pre-1994 permits.

Plaintiffs filed suit on November 27, 2018.  The District Court held that plaintiffs lacked standing because they could not establish an injury-in-fact, the first prong of the standing test.  Marino v. NOAA, 451 F. Supp. 3d 55 (D.D.C. 2020).  In particular, they could not establish an informational injury, because they could not identify any deprivation “of information that . . . a statute requires the government or a third party to disclose to it.”  Slip op. at 8.  The District Court did not reach the issue of redressability, the third prong of the standing test.  Slip op. at 12 n.3.

The D.C. Circuit’s Decision

On appeal, the D.C. Circuit panel focused on redressability rather than injury-in-fact.  In its view, plaintiffs’ allegations failed to satisfy the redressability element of the constitutionally-mandated requirements for standing.[3]  In particular, the plaintiffs did not allege that a favorable decision would cause the NMFS to redress their alleged injuries.

The panel noted that NMFS had stated in its March 10 email that it “will not be enforcing the necropsy related provisions of the permit.” Marino v. NOAA, supra, slip op. at 6.  The panel noted that NMFS’s “policy” was based upon the advice of the agency’s counsel, who had concluded that the 1994 MMPA amendments had shifted responsibility for enforcing permit conditions to APHIS.  Id.  Plaintiffs had made “no allegation addressing the likely effect of a favorable ruling upon [NMFS’s] behavior.”  Id. The panel noted that the MMPA “is permissive on its face: The NMFS ‘may’ enforce permit conditions; it is not required to do so.” Id. In short, plaintiffs had not alleged “any reason to believe the NMFS would enforce the permit conditions if the plaintiffs received all the relief they requested, namely an injunction requiring the agency to rescind its interpretation of the MMPA or declaratory relief that the agency’s interpretation of the statute is unreasonable.”  Id. at 7.

Plaintiffs cited Massachusetts v. EPA, 549 U.S. 497, 518 (2007), for the proposition that they need only allege “some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed” them. Acknowledging the “possibility” that “the NMFS would oblige the plaintiffs,” the panel asserted that plaintiffs were understating the standard non-sovereign plaintiffs must meet. Id. at 8.  The Massachusetts v. EPA Court had explained that sovereign states are entitled to special solicitude under the standing doctrine. Id. (citing Massachusetts v. EPA, 549 U.S. at 518). But, the panel observe, non-state plaintiffs were not entitled to the same solicitude. Id.

Plaintiffs had also failed to sufficiently plead that SeaWorld would turn over the necropsy and medical history reports even if the NMFS were to direct the company to do so. To start, “[w]hen a plaintiff’s asserted injury arises from the Government’s regulation of a third party that is not before the court, it becomes ‘substantially more difficult’ to establish standing.” Id. at 9 (quoting National Wrestling Coaches Ass’n v. Department of Education, 366 F.3d 930, 938 (D.C. Cir. 2004)). The panel noted plaintiffs’ allegations that SeaWorld had not been complying with the terms of the permit even before the NMFS issued its March 10 decision, and was unlikely to do so unless compelled by the NMFS (which, as the panel had already concluded, plaintiffs had not alleged would likely occur).  Id.

Finally, citing International Ladies’ Garment Workers’ Union v. Donovan (ILGWU), 722 F.2d 795, 811 (D.C. Cir. 1983), the plaintiffs referenced the “strong presumption” that a regulated entity will comply with the law.  Marino v. NOAA, supra, slip op. at 10.  The Court distinguished ILGWU, noting that the relief requested there would have made illegal several third parties’ subminimum wages, the source of competitive injury to the plaintiff union members.  In contrast, the relief the marine scientist and animal welfare groups were requesting would not by itself make unlawful SeaWorld’s failure to release necropsy data.  Id.

Moreover, even were ILGWU applicable, the panel continued, plaintiffs had not alleged that SeaWorld ever created or still retains any necropsy reports.  It noted that the relevant regulation requires permittees to retain necropsy records for only 3 years. Id. (citing 9 C.F.R. § 3.110(g)(2)). Because Tilikum, Kyara, and Kasatka had all died by August 15, 2017, the panel speculated that SeaWorld probably no longer retained the necropsy reports.  The Court failed to note the irony of its statement — plaintiffs’ efforts to obtain the information sought began well before any of the orcas had died.

Observations

The Court’s approach to the standing test’s redressability prong is questionable, both in terms of the agency’s likely response, i.e., first party redressability, and SeaWorld’s, i.e., third party redressability.

First Party Redressability — The Likely Agency Response

The conclusion that NMFS’s declaration that it would not enforce SeaWorld’s quasi-contractual obligations precluded a finding of redressability is problematic.  The panel’s approach arguably subverts, and perhaps even directly contradicts, the U.S. Supreme Court’s seminal “informational harm” case, FEC v. Akins, 524 U.S. 11 (1998).  More generally, the panel’s approach seems to preclude the prospect of challenging any agency inaction in enforcing statutory or other legal requirements. Let us consider each of these problems in turn.

FEC v. Akins and Standing Based on Informational Injuries

FEC v. Akins, which the Marino v. NOAA panel fails to cite, involved the Federal Election Campaign Act’s extensive recordkeeping and disclosure requirements for “political committee[s].” Id. at 14.  Plaintiffs sought to have the Federal Elections Commission (“FEC”) treat the American Israeli Public Affairs Committee (“AIPAC”) as a political committee.  Id. at 15-16.  The FEC concluded that AIPAC did not fit within the relevant statutory definition. Id. at 18.  Plaintiffs’ informational harm, “their inability to obtain the information” AIPAC might be required to disclose were they deemed a political committee, was fairly traceable to the FEC’s decision.  Id. at 21-25.  That left the redressability issue. 

The Court acknowledged that even if the FEC’s determination were overturned, the agency might nevertheless exercise enforcement discretion and take no further action upon plaintiffs’ allegations against AIPAC.  Nevertheless, Justice Breyer explained for the Court, “those adversely affected by a discretionary agency decision generally have standing to complain that the agency based its decision upon an improper legal ground.” Id. at 25. The Court, he observed, “cannot know that the FEC would have exercised its discretion in that way.” Id.

Akins involved an adjudication, the FEC’s dismissal of an administrative complaint against AIPAC, which might be significant with regard to inaction, but not redressability.[4]  And, of course, Akins involves a statutory disclosure requirement, not one that the agency created based on statutorily-conferred authority to condition special exemption permits— the point the District Court relied upon in distinguishing Akin in its injury-in-fact analysis.  Marino v. NOAA, supra, slip op. at 8-9.

Moreover, of course, the Marino plaintiffs’ right to the documents depends on FOIA, which, the Supreme Court has held, does not require an agency to actually obtain documents it is entitled to request from third parties.  Forsham v. Harris, 445 U.S. 169, 182-87 (1980); U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144–45 (1989).  Premising an agency’s obligation to provide documents on its power to obtain them, the gist of the Marino plaintiffs’ arguments, seems somewhat at odds with the FOIA regime — the only basis on which the Marino plaintiffs can claim a right of access to the documents.

Standing and Jurisdiction to Review Agency Inaction

More broadly, if the panel’s approach to redressability is correct, how would an inaction claim ever be brought?   

It is true that individuals are rarely entitled to require an agency to exercise its enforcement powers in a particular manner, Hecker v. Chaney, 470 U.S. 821, 832-33 (1985). But the rule may be subject to exceptions, as Heckler v. Chaney, itself suggests. 

“We do not have in this case a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction. Nor do we have a situation where it could justifiably be found that the agency has “consciously and expressly adopted a general policy” that is so extreme as to amount to an abdication of its statutory responsibilities.” 

Id. at 833 n.4 (citation omitted)(empnasis added).

Thus, Heckler v. Chaney can be read as enunciating two exceptions. [5]  First, a court may review agency inaction if an agency fails to exercise enforcement discretion under the mistaken belief that it lacks jurisdiction.  Second, a court may review agency inaction if the agency had “‘consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Plaintiffs’ allegations in Marino, challenging inaction is based on an arguably erroneous legal interpretation regarding the scope of the agency’s authority, appears to fit squarely within the first exception.  Id.. 

Akins seemed to follow this pattern, permitting review of an agency refusal to enforce based on its interpretation of its statutory authority, and holding that Heckler v. Chaney did not preclude such a suit.  Akins v. FEC, 524 U.S. at 26.  And although Massachusetts v. EPA, 549 U.S. 497 (2007), involved a refusal to initiate a rulemaking, which it distinguishable from an exercise of enforcement discretion, the Court’s review of the agency’s inaction in that case was consistent with the exceptions to reviewability laid out in the Heckler v. Chaney footnote. Id. at 528-34.[6]  Under the reasoning of Marino, such cases could not be brought, and the reviewability issue not even reached, if the agency steadfastly asserts it will never use its enforcement power. 

Marino, of course, was decided by a D.C. Circuit panel.  The D.C. Circuit’s approach to the question of whether an agency’s inaction in the context of enforcement discretion is confused and the subject of some uncertainty.  One year after Heckler, in International Union, United Auto., Aerospace & Agricultural Implement Workers of America v. Brock, 783 F.2d 237, 244–45 (D.C. Cir. 1986), the D.C. Circuit followed the suggestion in the Heckler v. Chaney footnote and held that “[e]ven if a statutory interpretation is announced in the course of a nonenforcement decision, that does not mean that it escapes review altogether.”  It cautioned, “[w]ere we to accept the Department’s contention, we would be handing agencies carte blanche to avoid review by announcing new interpretations of statutes only in the context of decisions not to take enforcement action.”[7]  However, three years later, in Safe Energy Coalition v. U.S. Nuclear Regulatory Comm’n, 866 F.2d 1473 (D.C.Cir. 1989), another D.C. Circuit panel, without citing UAW v. Brock, seemed to take the contrary position.  Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994).

In Crowley Caribbean Transport, Inc. v. Pena, supra, the Court sought to reconcile UAW v. Brock, Safe Energy, and other cases.  The Crowley court distinguished challenges to an agency’s interpretation of its authority when refusing to act on a single complaint, from challenges to an agency’s interpretation of its authority in “an agency’s statement of a general enforcement policy” that was either “expressed . . . as a formal regulation after the full rulemaking process . . . or . . . otherwise articulated . . . in some form of universal policy statement.”  Id. at 677;[8]  Accord, OSG Bulk Ships, Inc. v. United States, 132 F.3d 808 (D.C. Cir. 1998).  Thus, while a legal interpretation applied in response to a particular request for enforcement is unreviewable, a legal interpretation phrased as a general enforcement policy is subject to review.  See, NAACP v. Trump, 298 F. Supp. 3d 209, 229 (D.D.C. 2018).

The course of conduct that plaintiffs sought to challenge in Marino appears to fall into a gap between the two rules the Crowley Court teased out of D.C. Circuit precedent. NMFS appears to have adopted a general “enforcement” policy based on an interpretation of a statute that, in the agency’s view, deprives it of jurisdiction to act.  But NMFS announced it general enforcement policy only by an email refusing a specific enforcement request.  And then the agency followed the underlying interpretation of its jurisdiction in responding to subsequent requests, referencing the decision announced in its March 10 email.  Indeed, in some ways the case resembles Massachusetts v. EPA and Akins, in that the agency resolved a jurisdictional question in response to a request by beneficiaries that it do so. And, as in Massachusetts v. EPA and Akins, the agency’s decision followed an internal debate within the agency that lasted for months.  Thus, Marino may present a difficult case in terms of whether NMFS engaged in a type of inaction, based on denial of statutory jurisdiction, that is reviewable, at least in the D.C. Circuit. 

But, again, the redressability approach the Court takes in Marino, makes these subtle distinctions, as well as the caveats in Heckler v. Chaney, irrelevant.  Redressability will be lacking in any such case, all that is necessary is an agency’s steadfast refusal to change its enforcement approach, even if its intransigence is unexplained.

Third-Party Redressibility — Seaworld’s Likely Response

Assuming arguendo that NMFS might seek the necropsy records from SeaWorld, the Marino Court’s decision regarding the uncertainty of SeaWorld’s potential reaction teeters on the brink of absurdity.  It would not seem particularly speculative that SeaWorld performed a necropsy on whales that were its prime attractions. Presumably, at the very least, Seaworld would have kept records of its orca’s clinical histories.  After all, SeaWorld’s proclaims it stewardship of marine mammals — considering itself “one of the world’s foremost zoological organizations and a global leader in animal training, husbandry, welfare and veterinary care.” SeaWorld Parks & Entertainment, Animal Welfare at SEA Parks: Overview.

And if SeaWorld had performed necropsies, the most likely reason any such necropsy report would no longer exist is the delayed agency response to plaintiffs’ entreaties (which began before the first whale died) and the amount of time it took to obtain a judicial decision, almost four years after plaintiffs filed the complaint.  Such delays were largely outside plaintiffs’ control.  At the very least, the Government should be required to provide an affidavit from SeaWorld that it never prepared a necropsy report or has destroyed those records.

Moreover, special exemption permits can be revoked at any time.  It may be of little importance to SeaWorld that special exemption permits can be revoked for deceased marine mammals that were once its prime attraction, but have now been replaced by others.[9]  But surely the potential revocation of other special exemption permits for marine mammals that remain in SeaWorld’s custody and continue to perform, a potential ban on obtaining other such permits in the future, and a potential contract suit for specific performance brought against it by the Government, are powerful incentives for SeaWorld to comply with a request to produce any necropsy reports that they maintain.  Indeed, the adverse publicity from refusing to comply with such a government request alone might prove sufficient to prompt SeaWorld’s provision of any necropsy report and clinical records.

In any event, Marino is clearly distinguishable from the classic redressability cases, Warth v. Seldin, 422 U.S. 490 (1975), Allen v. Wright, 468 U.S. 737 (1984), Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976), and Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 416 (D.C. Cir. 1994).  In some of those cases, plaintiffs sought to challenge government policies which subsidized certain activities, activities in which the third parties might well have continued to engage even without subsidies, Allen v. Wright, supra, Eastern Kentucky Welfare, supra, and Freedom Republicans, supra. In others, such as Warth v. Seldin, supra, plaintiffs sought to challenge government policies which precluded certain actions that private entities may or may not have embarked upon even were the restriction lifted.  Here, by contrast, plaintiffs seek to have the government to enforce a quasi-contractual obligation to which the third party agreed to in obtaining a revocable government permit.

Indeed, Marino seems analogous to Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 440-44 (D.C. Cir. 1998) (en banc).  Here, as there, the third party exhibitor’s conduct, acquiring orcas and keeping them in custody, is permissible only because the defendant government agency permitted the third party to capture, transport, and display the animals in the first place.

“Secret Law”

Perhaps the most distressing aspect of Marino has little to do with redressability, injury-in-fact, or standing at all.  NMFS’s general counsel’s office has essentially rendered an opinion regarding the proper interpretation of a federal statute, after considerable debate and discussion within the agency.  The general counsel’s opinion may well qualify as an “interpretation” that the agency is required to publish.  5 U.S.C. §552(a)(1)(D), (a)(2)(B).  And, indeed, imagine if the situation reversed. What if SeaWorld took the position that the necropsy-related provisions of the special use exemptions had been abolished by the 1994 Act, and the agency had taken the opposite position in a undisclosed general counsel memorandum?  Arguably the agency might have forfeited its right to apply that interpretation to SeaWorld. 5 U.S.C. §552(a)(1)(E), (a)(2)(E).[10]

But even worse, when interested “beneficiaries” of the regulatory scheme, marine scientists and animal welfare organizations, sought the basis for the opinion through FOIA’s reactive disclosure provisions, the agency withheld the documents on the basis of attorney-client privilege.  Complaint, supra, at ¶85.  Thus, the agency has adopted “secret law,” some form of document setting forth its interpretation of the statute on which it appears to be relying as precedent in subsequent decisions.   Complaint, at ¶¶ 88, 96. This is all the more problematic given the active engagement of beneficiaries of the regulatory regime seeking a clarification of the agency’s position over an extended period of time. Complaint, at ¶¶ 82-85.

Conclusion

It is unlikely that this case will receive further review, either by an en banc panel or by the Supreme Court.  The decision may implicate the informational standing doctrine, given its tension with Akin.  Granted the District Court may have correctly applied D.C. Circuit law with respect to plaintiff failure to sufficiently allege an injury-in-fact based on an informational harm.  But ultimately, Marino v. NOAA will probably merely add to the cacophony of cases involving standing.

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[1] FOIA does not require the Government to request information it has a right to receive.  Forsham v. Harris, 445 U.S. 169,182-87 (1980).

[2] A District Court judge upheld NMFS position in Animal Welfare Institute v. National Oceanic and Atmospheric Administration, 370 F. Supp. 3d 116 (D.D.C. Feb. 28, 2019).

[3] At a minimum, standing requires a showing of (1) an injury in fact, (2) fairly traceable to the defendant’s challenged conduct, (3) that “is likely to be redressed” by a favorable decision.  E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

[4] And even in rejecting the FEC’s inaction argument, the Court did not rely on the fact that the FEC had rejected a complaint brought against AIPAC before the FEC, rather than an informal request to commence some other form of enforcement activity.  Id. at 26.

[5] Granted, Justice Rehnquist’s caveat may have been an insincere one to be abandoned at the first convenient opportunity.

[6] The Court reviewed EPA’s interpretation that it lacked jurisdiction to address greenhouse gases.  That too squarely fits within Heckler v. Chaney’s first exception.  In dealing with EPA’s other reasons for refusing to regulate greenhouse gases, the Court explained that “the use of the word ‘judgment’ is not a roving license to ignore the statutory tex[;] [i]t is but a direction to exercise discretion within defined statutory limits.”  In a sense, the Court was holding that the agency had consciously adopted a general policy so extreme as to amount to an abdication of its statutory authority.

[7] The Ninth Circuit, citing United Auto Workers v. Brock, took the same position, Montana Air Chapter No. 29, Association Of Civilian Technicians v. Federal Labor Relations Authority, 898 F.2d 753, 756 (1990).

[8] The Court offered three reasons for the distinction. Id. at 677.  “[First,] general statements [of enforcement policy] . . . are more likely to be direct interpretations of the commands of the substantive statute rather than mingled assessments of fact, policy, and law peculiarly within the agency’s expertise and discretion.” Id.  Second, “an agency’s broad policy pronouncements poses special risks that it ‘has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.’” Id. (quoting Heckler v. Chaney, 470 U.S. at 833 n.4). Third, “an agency will generally present a clearer (and more easily reviewable) statement of its reasons for acting when formally articulating a broadly applicable enforcement policy.”  Id. at 677.  NMFS’s determination that the MMPA Amendments of 1994 invalidated the necropsy conditions of its pre-1994 special exception permits appears to have all three characteristics that, in the Cowley Court’s assessment, make review appropriate.

[9] Though, allegedly, special use permits cover not only the animal, but its offspring as well. Complaint, supra, ¶80.  Plaintiffs alleged that Tilikum was used extensively by SeaWorld for breeding purposes, and fathered at least twenty-one calves, at least nine of which were alive and in SeaWorld’s  custody when plaintiffs filed the complaint.  Id.

[10] Section 552(a)(2)(E) provides:

“A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—

(i) it has been indexed and either made available or published as provided by this paragraph; or

(ii) the party has actual and timely notice of the terms thereof.”