Expanding the Administrative Record in Administrative Procedure Act Litigation

• Publication year: 2023

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Steven D. Gordon ^*

In this article, the author explains that in most Administrative Procedure Act cases, there is no issue about the completeness of the administrative record. The basis for the agency's action is fully disclosed in the record that it produces. And when an administrative record is incomplete, the matter can sometimes be resolved through discussions between counsel. Litigation over expanding the administrative record is unusual. But, the author concludes, it can be vital to the outcome of the case.

Challenges to federal agency actions under the judicial review provisions of the Administrative Procedure Act (APA) are normally adjudicated without any discovery, on the basis of an administrative record that is produced by the agency. The Supreme Court has instructed that "courts are to decide, on the basis of the record the agency provides, whether the action passes muster under the appropriate APA standard of review." ¹ "[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." ² If the reviewing court cannot evaluate the challenged agency action on the basis of the record before it, the matter is usually remanded to the agency for additional investigation or explanation. ³

Nonetheless, there are three situations in which an APA plaintiff may seek to expand the administrative record produced by the agency. The first is where the plaintiff believes that the agency has omitted relevant documents or information from the record and seeks to complete the record by adding them. The second is where the plaintiff seeks to supplement the existing record with documents or materials that were not before the agency but which the plaintiff believes are necessary for the court to assess the APA claim. The third is where the plaintiff seeks discovery from the agency to supplement the administrative record.

"[J]udicial review cannot function if the agency is permitted to decide unilaterally what documents it submits to the reviewing

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court as the administrative record." ⁴ However, "[t]here is a strong presumption against discovery into administrative proceedings born out of the objective of preserving the integrity and independence of the administrative process." ⁵ The rationale is that "further judicial inquiry into 'executive motivation' represents 'a substantial intrusion' into the workings of another branch of Government and should normally be avoided." ⁶ Furthermore, "limiting supplementation of the administrative record serves both to incentivize parties to 'structure their participation [in the administrative process] so that it . . . alerts the agency to the [parties'] position and contentions,' and to prevent parties from making an end run around the agency's substantive . . . judgments.'" ⁷

The courts recognize that, in exceptional circumstances, it is appropriate to expand the administrative record supplied by the agency or even to permit discovery about the administrative decision-making process. In the U.S. Court of Appeals for the Ninth Circuit, "a reviewing court may consider extra-record evidence where admission of that evidence (1) is necessary to determine whether the agency has considered all relevant factors and has explained its decision; (2) is necessary to determine whether the agency has relied on documents not in the record; (3) when supplementing the record is necessary to explain technical terms or complex subject matter; or (4) when plaintiffs make a showing of agency bad faith." ⁸ The U.S. Court of Appeals for the District of Columbia Circuit has said that additional evidence may be considered when: (1) the agency failed to examine all relevant factors, (2) the agency failed to explain adequately its grounds for decision, (3) the agency acted in bad faith, or (4) the agency engaged in improper behavior. ⁹ "Underlying all of these exceptions is the assessment that resort to extra-record information [is necessary] to enable judicial review to become effective." ¹⁰

The Contents of the Administrative Record

The APA specifies that judicial review is to be based on the "whole record" before the agency. ¹¹ The Supreme Court has held that the "whole record" means "the full administrative record that was before the Secretary at the time he made his decision." ¹² This includes "all documents and materials directly or indirectly

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considered by the agency." ¹³ Documents indirectly considered by the agency include those that were relied on by subordinates and so were constructively considered by the ultimate decision-maker. ¹⁴

"A complete administrative record . . . does not include privileged materials, such as documents that fall within the deliberative process privilege, attorney-client privilege, and work product privilege." ¹⁵ However, the treatment of predecisional and deliberative documents has sparked division among the courts. There are two rationales for excluding such deliberative materials: (1) judicial review of agency action should be based on an agency's stated justification, not the predecisional process, and (2) excluding deliberative materials promotes better decisions by encouraging uninhibited and frank discussion among policy makers. ¹⁶

The D.C. Circuit has held that deliberative documents "are not a part of the administrative record to begin with," are not discoverable, and "do not need to be logged as withheld from the administrative record." ¹⁷ But the Second, Fourth, and Ninth Circuits have upheld the use of privilege logs with respect to deliberative materials in APA cases. ¹⁸ And a number of district courts have held that "deliberative documents are not categorically excluded from the administrative record. Rather, they are excluded upon a substantiated claim of the deliberative process privilege." ¹⁹ They have reasoned that "[a]llowing courts a role in adjudicating whether particular documents are properly withheld from the record on the basis of privilege is consistent with, not contrary to, the mandate of the courts to review the 'whole record.'" ²⁰

Some district courts have gone further and required "deliberative materials (such as internal comments, draft reports, emails, and meeting notes) to be added to the administrative record if they were considered in the agency's decision." ²¹ District courts in the Ninth Circuit are split on this issue. ²²

Accordingly, in courts apart from the D.C. Circuit, plaintiffs should consider raising the issue of whether deliberative materials are being withheld from the administrative record and demanding a privilege log if they are. Further, this issue may affect a plaintiff's choice of venue in an APA suit. Plaintiffs can file suit either where they are located or in the District of Columbia where the government is located. ²³ If there is a desire to seek access to deliberative materials in connection with the case, then suit should not be brought in D.C.

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Expanding the Record to Explain Agency Action

The administrative record may be expanded when necessary to explain agency action. However, this exception is limited to "gross procedural deficiencies—such as where the administrative record itself is so deficient as to preclude effective review." ²⁴ In such a case, the court may "obtain from the agency, either through affidavits or testimony, such additional explanations of the reasons for the agency decision as may prove necessary." ²⁵ Note that this exception does not necessarily permit discovery by the plaintiff. Indeed, "[w]hen there is a need to supplement the record to explain agency action, the preferred procedure is to remand to the agency for its amplification." ²⁶

This exception has been described as "the most difficult to apply." ²⁷ It permits a district court to consider extra-record evidence to develop a background against which it can evaluate the integrity of the agency's analysis, but it does not permit the court to use extra-record evidence to judge the wisdom of the agency's action. "[R]eviewing courts may not look to this evidence as a basis for questioning the agency's scientific analyses or conclusions." ²⁸

Expanding the Record to Explain Agency Inaction

APA cases predicated on agency inaction, that is, seeking to compel an agency to act, are something of a special category. Like other APA suits, they are supposed to be decided on the basis of the record before the agency. However, "when a court is asked to review agency inaction before the agency has made a final decision, there is often no official statement of the agency's justification for its actions or inactions." ²⁹ Thus, in these cases, "the administrative record provides 'the presumptive starting point,' . . . but not necessarily the outer limit of evidence that may be considered." ³⁰

"For example, where an agency has failed to act, there simply may not be a record to review because the agency quite literally has done nothing." ³¹ "And because there is no clear end-point to decision-making when an agency has failed to act, some courts have allowed an agency to supplement the record with relevant documents generated after the agency produced the administrative record." ³²

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To determine whether agency action has been unreasonably delayed, many courts apply the six-factor TRAC test established by the D.C. Circuit. ³³ Accordingly, in one recent case, although the agency filed a 4,616-page...