CHAPTER 9 THE ADMINISTRATIVE RECORD: COMPILING, REVIEWING, AND SUPPLEMENTING THE BASIS FOR THE AGENCY'S DECISION

• Jurisdiction: United States

Challenging and Defending Federal Natural Resource Agency Decisions
(Sep 2016)
CHAPTER 9
THE ADMINISTRATIVE RECORD: COMPILING, REVIEWING, AND SUPPLEMENTING THE BASIS FOR THE AGENCY'S DECISION
Roxane J. Perruso ¹
Vice President & General Counsel
Transwest Express/Power Company of Wyoming
Denver, CO

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ROXANE J. PERRUSO is Vice President and General Counsel for the Power Company of Wyoming LLC and TransWest Express LLC, both wholly owned affiliates of The Anschutz Corporation. She joined Anschutz in 2008 with 25 years of experience across a broad array of legal, land use, real estate, and environmental issues. Perruso attended the University of Colorado School of Law, earning a juris doctor in 1997, and subsequently became a senior associate at the law firm of Holme Roberts & Owen, LLP. For five years she represented clients at both the trial and appellate level in litigation involving commercial disputes, real estate and construction claims, insurance claims, and employment discrimination. Subsequently, Perruso served six years as an Assistant United States Attorney in the United States Attorney's Office for the District of Colorado. She was an AUSA in the civil division for four years representing the United States in civil cases involving federal land use and environmental issues as well as torts and employment discrimination. Then, she transferred to the criminal division where she was a federal prosecutor in cases involving firearms, drugs, immigration, and crimes against children. Perruso is a member of the bar for the State of Colorado, the United States District Court for the District of Colorado, and the United States Court of Appeals for the Tenth Circuit. Perruso has published several legal articles and earned awards including a Bureau of Land Management appreciation award in 2008; a Certificate of Commendation, Environment and Natural Resources Division, Department of Justice in 2006; a Director's Award for superior performance as an Assistant U.S. Attorney in 2005; and an award from the Office of General Counsel, USDA and the Forest Service in 2004. A lifelong resident of the West, Perruso was born in Arizona, and lived in New Mexico, California, and Nebraska before moving to Colorado, which has been home for over 30 years.

I. Foreword

The genesis of this article was a phone call from Philip Lowe² last September. He asked if I would write about Administrative Records³ based upon (1) my experience as an Assistant United States Attorney litigating cases brought under the Administrative Procedure Act; and (2) my experience for the last eight years as General Counsel for companies that have projects undergoing analysis in Environmental Impact Statements (EIS). I happily agreed and immediately went to share my good news with my colleagues. These are the same colleagues who assisted me last time I wrote an article and who told me, actually, more like warned me, that I should avoid making these commitments on top of our already overwhelming workload. But, I naively assured them that with almost a year to write an article, I'd have it ready to go long before summer and the submission deadline. Well, fast forward, summer is here and so is the deadline. I'm relating to Dr. Seuss who asked, "[h]ow did it get so late so soon? Its night before its afternoon. December is here before its June. My goodness how the time has flewn. How did it get so late so soon?"⁴ That said, I'm putting fingers to the keyboard and while I take this subject seriously, I've decided to write more casually than you might normally see in a legal article. Although this article does include citations to applicable law, it's not meant to be a treatise on Administrative Procedure Act cases or Administrative Records. Instead, I've attempted to compile what I hope is helpful information based upon not only my experience, but also the experiences of others who are far more knowledgeable than I am and who graciously agreed to share not only what they have written, but also their thoughts, experiences, and advice regarding Administrative Records. I am grateful to the experts and to my colleagues, especially Kara Morgan, Senior Paralegal and Supervisor (whose research skills are unparalleled), for

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supporting me with their time and invaluable assistance in meeting this "extracurricular" commitment.⁵

II. Introduction

When a plaintiff challenges a federal agency's final decision in federal district court, the Administrative Procedure Act (APA) governs the court's review.⁶ The APA establishes the requirement that the agency provide the court with a record that documents not only the agency's decision-making process, but also the basis for the agency's decision--the Administrative Record. The APA provides that when determining whether to affirm or remand an agency's decision, "the court shall review the whole record or those parts of it cited by a party."⁷ Generally, "[t]he administrative record constitutes the universe of facts on which the parties must rely in making their arguments in the case. If the particular fact is not in the administrative record, then, for purposes of the litigation, that fact simply does not exist."⁸

Thus, the Administrative Record is the foundation upon which judicial review of an agency's final decision takes place. Agencies use the Administrative Record as a shield, plaintiffs use it as a sword, and courts use it as the basis for their decision whether to uphold or set aside agency action. Ultimately, an agency's decision will stand or fall based upon the content of the Administrative Record.

III. The Administrative Record - Content and Organization

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When I asked several experts what types of issues they have seen most often with Administrative Records, their responses were remarkably consistent addressing both content and organization. Comments on the content of Administrative Records mostly referred to "missing" content such as (1) an incomplete record;⁹ (2) a record with indecipherable contents (especially if there are maps or other diagrams that do not scan well);¹⁰ (3) lack of a clear explanation of the basis for the agency's decision;¹¹ and (4) lack of evidence of facts supporting the agency's decision (i.e., the facts exist but the agency fails to include them, or a reference to them, in the record).¹² "Where agencies get in trouble is where they fail to address something that should have been addressed."¹³

Even assuming the Administrative Record contains the proper content, if the parties and the court cannot effectively locate or access information, it doesn't matter. Common organizational problems include (1) an un-paginated record (no bates numbers); and (2) lack of a useable/workable table of contents.¹⁴ According to United States Magistrate Judge Michael Hegarty, the "organization, table of contents, and size (smaller is better) impact the Court's review."¹⁵ Philip Lowe, an attorney advisor with the Department of the Interior's Office of the Regional Solicitor, summed it up with this description of the good, the bad, and the ugly:

The good are well organized, indexed and hyperlinked electronic documents, the bad are poorly indexed and paper copies bates numbered without a coherent structure based on the document types, and the ugly are those with hyperlinks that don't work, corrupt files that won't open and indexes without logical structure

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and are disorganized to the point where a judge can't connect the documents in the record to support the decision or are missing key documents. ¹⁶

In Western Watersheds,¹⁷ the court addressed the Administrative Record in the first footnote with the following observation and admonition: "The information on the [8] CDs was not set forth in an easy-to-find format. Consequently, the court had a very difficult time locating documents. In the future, Government counsel should work together with the agency to ensure that the Administrative Record can be easily accessed."¹⁸ Cutting to the chase--the Administrative Record is critical, both content and organization.¹⁹ What follows are some lessons from cases, war stories, advice from experts, and questions to consider when dealing with Administrative Records in APA cases.

IV. Does the Administrative Record Support the Agency's Decision?

Unless you are a plaintiff, here is a sentence from a Tenth Circuit decision that you hope you never see in one of your cases: "Despite our thorough review of the administrative record, we find it difficult to ascertain exactly what the agency did or did not do in this case."²⁰ The Tenth Circuit continued by stating that the "agency must make plain its course of inquiry, its analysis and its reasoning. After-the-fact rationalization by counsel in briefs or argument will not cure noncompliance by the agency with these principles."²¹ In sum, "[a]n agency's action must be upheld, if at all, on the basis articulated by the agency itself."²²

I too learned this lesson, but not from reading this case. My one vivid memory relating to an APA case was standing in court before Judge Kane,²³ making what I'm sure I thought was a convincing oral argument on behalf of an agency as to why some decision it made should be upheld. There's a lot I don't remember, like what case it was, or the issue, or what argument I was making, but, I do very clearly remember Judge Kane stopping me and saying: "I don't accept post hoc rationalizations of counsel. Where is it in the Record?" And, while simultaneously trying to think of the meaning of "post hoc" and shuffling through my papers for

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a non-existent cite to the Administrative Record, I decided that this would be the last time I made that mistake. Answering the question Judge Kane asked me--where is it in the Record--became my mantra for my arguments both oral and written.²⁴

Laura Lindley, Special Counsel, Welborn Sullivan Meek & Tooley, P.C., pointed me to a case which...