Most lawyers are familiar with the principle that a challenge to a federal agency’s action as being “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), is typically limited to the agency’s administrative record.
As the Supreme Court has stated, “[i]n applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973); see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). This rule is commonly known as the “record review rule.” As a corollary to that rule, courts typically will not permit the plaintiff in an APA suit to take free-ranging discovery against the government. That does not mean, however, that discovery is never appropriate. There are several exceptions to the record review rule and the “decision whether to allow such extra record investigation rests within the sound discretion of the district court.” Stewart v. Potts, 126 F. Supp. 2d 428, 435 (S.D. Tex. 2000).
Perhaps the most common exception to the record review rule is when extra-record information is required for effective judicial review. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). Thus, discovery is permissible when the administrative record is incomplete, when the agency relied on information outside the administrative record or when extra-record information is necessary to understand the agency’s decision-making process. See, e.g., Williams v. Roche, No. 00-1288, 2002 U.S. Dist. LEXIS 24030, at *8-9 (E.D. La. Dec. 12, 2002).
Courts also will allow extra-record discovery if the plaintiff makes “a strong showing of bad faith or improper behavior” by the agency decision-makers. Citizens to Preserve Overton Park, 401 U.S. at 420; see also Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 14 (2nd Cir. 1997). For example, courts “have recognized bad faith where ‘a party, confronted with a clear statutory or judicially-imposed duty towards another, is so recalcitrant in performing that duty that the injured party is forced to undertake otherwise unnecessary litigation to vindicate plain legal rights.’” Maritime Mgmt., Inc. v. United States, 242 F.3d 1326, 1335 (11th Cir. 2001) (quoting Am. Hosp. Ass’n v. Sullivan, 938 F.2d 216, 220 (D.C. Cir. 1991)).
Similarly, extra-record discovery can be obtained where a plaintiff makes legitimate allegations of improper political influence because courts “recognize the difficulty [a nonagency] party will have in producing evidence of wrongdoing before they have had an opportunity to conduct discovery.” Schaghticoke Tribal Nation v. Norton, No. 3:06cv81, 2007 U.S. Dist. LEXIS 19535, at *8-11 (D. Conn. Mar. 19, 2007). It is true that “[b]ecause accusations of improper political influence are easy to make, courts have to be careful in determining just which of those accusations are substantial enough to merit further consideration and extra-record discovery.” Sokaogon Chippewa Cmty. v. Babbitt, 961 F. Supp. 1276, 1280 (W.D. Wis. 1997). However, courts have concluded that “it is improper to require [a nonagency] party to come forward with conclusive evidence of political improprieties at a point when they are seeking to discover the extent of those improprieties.” Schaghticoke Tribal Nation, 2007 U.S. Dist. LEXIS 19535, at *10 (internal quotation marks omitted). This is because “agency officials are not likely to keep a written record of improper political contacts; the only way to uncover such contacts is by examining relevant phone records and by asking these officials about their discussions with congressional or presidential officials.” Sokaogon Chippewa Cmty., 961 F. Supp. at 1281.
In addition, it is often easier to obtain discovery in APA cases “arising under 5 U.S.C. § 706(1), to ‘compel agency action unlawfully withheld or unreasonably delayed’” because in such cases “there is no final agency action to demarcate the limits of the record.” Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000). When “the government is being sued for inaction … [t]here is less reason to presume that the record assembled by the agency is presumptively complete.” CCL, Inc. v. United States, 39 Fed. Cl. 780, 791 (1997); see also Lands Council v. Forester of Region One of U.S. Forest Serv., 395 F.3d 1019, 1030 (9th Cir. 2005). Moreover, “given that a ‘rule of reason’ ultimately governs the issue of unreasonable delay, some inquiry into … whether the reasons offered by the agency are the actual reasons for the delay must … be permitted.” Tummino v. Von Eschenbach, 427 F. Supp. 2d 212, 231 (E.D.N.Y. 2006).
Although discovery in APA cases is far from guaranteed, plaintiffs should not be too quick to dismiss the possibility of obtaining at least some discovery. If a showing can be made that discovery is necessary for meaningful judicial review or that the agency decision-makers engaged in bad faith or improper conduct, or if the case involves an agency delay or refusal to take a non-discretionary act, an APA plaintiff should consider filing a motion for leave to take discovery against the government.