JurisdictionUnited States
Natural Resources Administrative Law and Procedure
(Nov 1981)


James W. Moorman
Cadwalader, Wickersham & Taft
Washington, D.C.


When defending the decisions and actions of federal agencies, the Land & Natural Resources Division of the United States Department of Justice ("L&NR") is presently following the practice of seeking to limit the evidence adduced at hearings and trials and also to limit discovery to the administrative record. Thus, L&NR argued recently in support of a motion opposing discovery:

"The law is well established that judicial review of an administrative determination is confined to the administrative record. Additional evidence to supplement an administrative record is generally not taken in the district court. Rather, if the district court concludes that the administrative record does not sustain the action, the remedy is not to consider additional evidence but instead to remand the matter for reconsideration by the agency. [citations omitted]"1

The foundation of L&NR's practice, which often leads to success,2 are two Supreme Court cases: Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (hereinafter

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cited simply as "Overton Park") and Camp v. Pitts, 411 U.S. 138 (1973).

The government's reliance on these two cases is well placed. They place severe limits on what evidence outside the administrative record, if any, that may be considered by a lower court when reviewing an agency action or decision. A review of the cases, however, reveals that the lower courts often find that they need to go beyond the apparent limitations of Overton Park and Camp v. Pitts. In practice they have found various justifications for the consideration of evidence outside the record that were not discussed in Overton Park or Camp v. Pitts.

This paper first reviews the Overton Park and Camp v. Pitts decisions. It then surveys a variety of environmental and natural resource cases since those cases were decided where the question has arisen as to whether the court may consider evidence outside the administrative record. A brief assessment of the court's various rationales for going beyond the record and a preliminary categorization of those rationales are included. The intention is to acquaint the practitioner faced with a motion to limit judicial review or discovery to the record as to the various grounds courts have relied on in considering evidence outside the record.


Overton Park involved Section 4(F) of the Department of Transportation Act of 1966 and related laws which prohibit the use of federal funds to finance highways through parks if a

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"feasible and prudent" alternative exists.3 When the Secretary of Transportation approved the expenditure of Federal funds for a highway through Overton Park, in Memphis, Tennessee, he failed to indicate why there was no feasible or prudent alternative. In the District Court the government introduced litigation affidavits in support of the Secretary's decision. The plaintiffs introduced contradicting affidavits and sought to depose federal officials.

The Court's opinion included a lengthy analysis of the standard of review under the Administrative Procedure Act ("APA"). 401 U.S. at 410-416. The Court rejected the "Substantial Evidence" standard of APA § 706(2)(E) on the ground that use of that test is only appropriate when an APA rulemaking action pursuant to 5 U.S.C. § 553 is involved or when the agency has conducted a public adjudicatory hearing.4 Neither situation was involved in Overton Park.

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The court also rejected de novo review under 5 U.S.C. § 706(2)(F) of the APA, stating that such review was available in only two circumstances:

"First, such de novo review is authorized when the action is adjudicatory in nature and the agency factfinding procedures are inadequate. And, there may be independent judicial fact finding when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action."5

The court opted instead for the "arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law" standard of APA subsection 5 U.S.C.7 06(2)(A) to review the Secretary's decision under § 4(f), a standard of review the court characterized as "a narrow one" and which meant "the court is not empowered to substitute its judgment for that of the agency."6

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It is of interest to consider what the court said next as it may have created the first horn of a dilemma for reviewing courts. While it characterized the arbitrary and capricious standard of review as "narrow," it stated that the reviewing court was required to engage in "a substantial inquiry" and that the presumption of the regularity of the Secretary's decisions "is not to shield his action from a thorough, probing, in-depth review." The "inquiry into the facts is to be searching and careful." 401 U. S. at 415-416.

The court then complained that the administrative record was not before the court and that the district court based its review improperly on "post hoc" rationalizations in the form of affidavits. The court remanded for "plenary review" of the Secretary's decision "to be based on the full administrative

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record that was before the Secretary at the time he made his decision." 401 U.S. at 419-420.

The only category of evidence outside the record the Overton Park court suggested might be considered is the testimony of the decisionmakers themselves for the purpose of determining:

(1) the factors that were considered by the decisionmakers, and

(2) the decisionmakers construction of the evidence.

The court explained its ruling as follows:

"But since the bare record may not disclose the factors that were considered or the Secretary's construction of the evidence it may be necessary for the District Court to require some explanation in order to determine if the Secretary acted within the scope of his authority and if the Secretary's action was justifiable under the applicable standard.

"The court may require the administrative officials who participated in the decision to give testimony explaining their action." 401 U.S. at 420.

As the above quote indicates, even this testimony can only be taken when the factors considered or the construction of the evidence is not disclosed in the record.7 And, if there are administrative findings, plaintiff must make, in addition, "a showing of bad faith or improper behavior." 401 U.S. at 420. If the court chooses, it can remand to the agency to prepare formal findings in lieu of taking testimony. Id.

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As can be seen, the Supreme Court in Overton Park appears to have sought to confine the reviewing courts generally to the administrative record and, in carefully described circumstances, to the decisionmakers' explanation where clarification of the record is required. The Court did not in so many words say that no other type of evidence outside the record could be considered. The implication, however, is definitely there and the L&NR has not been alone in inferring such a meaning. The implied restriction creates the second horn of a dilemma.

The per curium Camp v. Pitts opinion that was handed down two years after Overton Park was not an environmental case and did not include the comprehensive exegeses of judicial review as did Overton Park. However, the opinion restates the Overton Park rule on the question of limiting review to the record in slightly different words and is often cited in tandem with Overton Park.

Camp v. Pitts involved a review of the Comptroller of the Currency's decision to deny plaintiff's application for a national bank charter. Unlike Overton Park, the entire administrative record was before the court. Plaintiff requested de novo review, which the district court denied, upholding the Comptroller on the record. The court of appeals reversed, ordering the district court to conduct a trial de novo. 411 U.S. at 139-140.

The Supreme Court reversed the court of appeals on the question of de novo review, citing Overton Park. The court went on to say that the appropriate action was not to put aside the record but to review the record and:

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"If...there was such failure to explain administrative action as to frustrate effective judicial review, the remedy was not to hold a de novo hearing but, as contemplated by Overton Park, to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary." 411 U.S. at 142-3.

Though again the Supreme Court did not explicitly rule out the consideration of any evidence outside the record other than a decisionmaker's clarifying statement, the implication was even stronger than in Overton Park. Thus the Court said:

"the focal point for judicial review should be the administrative record already in existence, not some new record made initially in Court." 411 U.S. at 142.


As one would expect, Overton Park and Camp v. Pitts have had a significant effect in limiting the evidence that courts will consider outside the administrative record.

The general procedure that the Supreme Court rejected in Overton Park, that of reviewing an agency decision on new evidence instead of on the administrative record, is now clearly passe. When the old practice is followed, it is reversed. Thus, in Silva v. Lynn, 482 F.2d 1282 (1st Cir. 1973), the court of appeals reversed a district court dissolution of an injunction because the district court had refused appellants' requests that the administrative record be produced and had considered only some elements of the administrative record together with affidavits and testimony. 482 F.2d at 1283-1284. Also see D.C.


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