§ 21.9 The Record On Judicial Review

• Jurisdiction: Washington

§21.9 THE RECORD ON JUDICIAL REVIEW

As a general rule, judicial review of administrative action is based on the record before the agency; new issues cannot be raised for the first time on appeal. With limited exceptions, parties must make their case before the agency rather than later during the course of judicial review.

(1) The record on review in APA cases

Judicial review of agency action under the Administrative Procedure Act, Ch. 34.05 RCW, is generally confined to the record developed before the agency. RCW 34.05.558. US West Commc'ns, Inc. v. Utils. & Transp. Comm'n,134 Wn.2d 48, 72, 949 P.2d 1321 (1997) (the facts of an administrative case are developed at the administrative hearing; the reviewing court sits as an appellate court reviewing that record). The validity of an agency rule is determined as of the time the agency took the action adopting the rule. RCW 34.05.570(1)(b); Wash. Indep. Tel. Ass'n v. Utils. & Transp. Comm'n, 148 Wn.2d 887, 906, 64 P.3d 606 (2003). The record on review of a rule consists of relevant portions of the agency's rule-making file and the agency's explanation for adopting the rule. RCW 34.05.370(1), (4); Wash. Indep. Tel. Ass'n, 148 Wn.2d at 906.

(a) Limited grounds for supplementing the record

The court may supplement the agency record with new evidence only if the new evidence is related to the validity of agency action at the time it was taken and the evidence is needed to resolve disputed issues involving (1) grounds for disqualifying the decision maker; (2) unlawfulness of procedure; or (3) material facts in rule making, brief adjudicative procedures, or other proceedings that are not required to be determined on the agency record. RCW 34.05.562(1); Herman v. Shorelines Hearings Bd., 149 Wn.App. 444, 454-56, 204 P.3d 928, review denied,166 Wn.2d 1029 (2009).

The first two exceptions relate to the procedures used by the agency in taking the contested action, whereas the third exception acknowledges there are some agency actions that are based on information not contained in an official agency record. For example, the agency record does not need to be the exclusive basis for emergency action or brief adjudicative proceedings. RCW 34.05.479(7) and RCW 34.05.494(2), respectively. And, the agency rule-making record need not be the exclusive basis for agency action on that rule. RCW 34.05.370(4).

RCW 34.05.562 applies to judicial review of other agency action under RCW 34.05.570(4). Wells Fargo Bank, NA v. Dep't of Revenue, 166 Wn.App. 342, 361, 271 P.3d 268, review denied, 175 Wn.2d 1009 (2012). If the court is reviewing "other agency action" under RCW 34.05.570(4), there may be few documents contained in the agency record, especially if the court is reviewing an agency's failure to act when it had a duty to act.

Because RCW 34.05.554 generally prohibits parties from raising new issues on appeal, courts will not allow the parties to use the record supplementation process to raise issues that could and should have been raised before the agency. See In re Martin,154 Wn.App. 252, 262-263, 223 P.3d 1221 (2009), review denied, 169 Wn.2d 1002 (2010).

In addition to supplementing the record, the court can remand to the agency for additional fact finding if (1) the agency failed to preserve or create an adequate record; (2) new evidence has become available that the moving party could not have previously discovered, and remand is necessary to preserve the interests of justice; (3) the agency improperly excluded evidence; or (4) the law changed after the agency action and the change in law may control the outcome. RCW 34.05.562(2).

Practice Tip: In arguing for remand to the agency under RCW 34.05.562(2), use caution when analogizing to RAP 9.11, which allows for remand to the trial court under certain circumstances. See Chapter 9 of this deskbook. Under both RCW 34.05.562 and RAP 9.11, the ability to take new evidence is limited. However, the statutory basis for remand for new evidence is not identical with the six mandatory factors for allowing supplementation under RAP 9.11.

Supplementation under RCW 34.05.562 is accomplished by filing a motion to supplement the record. It is not proper to attach extra record materials to a brief without leave of court. ZDI Gaming, Inc. v. Wash. State Gambling Comm'n,151 Wn.App. 788, 817, 214 P.3d 938 (2009), aff'd, 173 Wn.2d 608, 268 P.3d 929 (2012). A motion to supplement the record should be filed with the court well before the date the court will hear the case on the merits.

Whether the superior court properly admitted additional evidence is a question of law reviewed de novo. Herman v. Shorelines Hearings Bd., 149 Wn. App.at 454. The superior court does not abuse its discretion by refusing to admit evidence that was not before the agency at the time it...