The Administrative Record Flashcards
What are the two areas to focus on in dealing with a 50,000 page record? [2 prongs]
Ask agency counsel what the most:
(a) important from agency’s perspective
(b) controversial areas/studies that the opposing party flags as deficient
“[T]he focal point for judicial review should be the administrative record that already existed at the time of decision”
Case?
Camp v. Pitts
Section 7(2)(F) allows for de novo review under only 2 circumstances. Which ones?
What does this imply?
(1) when the action is adjudicatory in nature and the agency factfinding procedures are inadequate or (2) when issues that were not before the agency are raised [for the first time] in a proceeding to enforce non-adjudicatory agency action.”
[note that this implies de novo review is BARRED in any other situations]
What DOJ’s position on what the court can review in administrative record cases?
Judicial review can be made only the record
What is the fork in the law of what counts as the “whole record”
(1) CONSIDERED STANDARD. All materials directly or indirectly considered by the agency decision-maker, regardless of whether they support the agency’s position. Thompson v. Dept. of Labor (9th Circuit)
(2) BEFORE STANDARD. The whole record consists of “everything that was before the agency pertaining to the merits of its decision.” Portland Audubon Society v. Endangered Species Comm., (9th Circuit)
It is “the settled . . . rule that all necessary prerequisites to the validity of official action are presumed to have been complied with, and that where the contrary is asserted it must be affirmatively shown.” Case on presumption of regularity
Lewis v. United States (1929)
What is the plaintiff’s burden in showing that the administrative record is incomplete?
Two words
“___, ____ grounds”
“Reasonable, non-speculative grounds to believe that materials considered in the decision-making process are not included in the record.” Amfac Resorts v. U.S. Dep’t of Interior (D.D.C. 2001)
What is the D.D.C. case that explains the difference between supplementing the record vs. extra-record reviews
Pacific Shores Subdivision v. U.S. Army Corps of Eng’rs (D.D.C. 2006)
How can a FOIA request rebut the presumption of regularity?
The FOIA request reveals agency discussions with an individual who was clearly involved
Cases brought under this APA section operates somewhat outside the administrative record
706(1)
What is the administrative record
All documents that were directly or indirectly considered by the agency decision-maker, regardless of whether they support the agency’s position.”
“[T]he focal point for judicial review should be the AR already in existence, not some _______”
Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam)
new record made initially in the reviewing court.”
Common exceptions for when a court will look outside of the record (F-E-C-B)
(1) Factors: didn’t consider all relevant factors
(2) Exclusion: agency relied on materials not included in the record.
(3) Complex: technical terms need to be explainted
(4) Bad faith: Strong showing of agency bad faith or improper behavior
There is a difference between adding the record in these two different ways
Supplementing the record versus Going beyond the record
What are Decision Files
A spreadsheet of the documents you make as you make the decision
Public comments - are they in or out of the administrative record?
In the record
An agency’s policy directive listing priorities – in the Record or out?
In the record
Important documents not available at the time decision was made – in the record or not?
Not in the record
These three circuits exclude agency deliberations material in compiling the record
D.C., 1st, and 6th Circuits
Website with environmental data used for making decision – in record or not record?
In the record
What is the name of the party that certifies the record
The agency custodian
Why does the agency compile the record, not the lawyers
Because the agency are the decisionmakers for the agency action, not the lawyers
When adding emails into the record, make sure you include ____
The attachment to the emails
When compiling the index, you need to have one line per ___
one line per document (with the left-most name being the computer link for hyperlink)
What is the Key Custodian’s job
Coordinate with agency decision makers to access files that make up the record, and provide a declaration. Typically mid-level official with knowledge of the decision, but not the final decisionmaker
