Opinion
Civil Action No. 00-1288, Section "R" (2)
December 11, 2002
ORDER AND REASONS
Plaintiff, Roynell J. Williams, held a dual-status position with the United States Air Force as a civilian employee and an Air Force reservist. He was discharged from both positions for misconduct. Williams pursued administrative appeals through the Merit Systems Protection Board for the loss of his civilian job and the Air Force Board for Correction of Military Records for the loss of his military reserve status. He eventually filed this lawsuit against James G. Roche, Secretary of the Air Force, challenging both actions.
Pursuant to Fed.R.Civ.P. 25(d)(1), James G. Roche is substituted for the former Secretary of the Air Force and original defendant, F. Whitten Peters.
Plaintiff's claim of discriminatory retaliation under Title VII concerning his loss of civilian employment was dismissed on defendant's motion for lack of subject matter jurisdiction. Record Doc. No. 14. Williams's claim concerning the loss of his military status was administratively stayed in this court pending the outcome of his administrative appeal before the Air Force Board for Correction of Military Records. Id.
After his military administrative appeal was denied, Williams amended his complaint and the instant action was reopened on February 13, 2002. Record Doc. Nos. 15, 17. The amended complaint seeks review of the decision of the Merit Systems Protection Board under the Civil Service Reform Act of 1978, 5 U.S.C. § 7701 et seq., and review of the decision of the Air Force Board for Correction of Military Records under the Administrative Procedures Act. 5 U.S.C. § 702. Record Doc. No. 15, Amended Complaint.
The amended complaint does not mention Title VII as a jurisdictional basis, but it alleges that Williams was discharged in retaliation for a prior discrimination complaint. Record Doc. No. 15, Amended Complaint, ¶ XXXVII. As noted above, this claim was previously dismissed for lack of subject matter jurisdiction. Although the court's order of dismissal did not state whether the dismissal of the Title VII claim was with or without prejudice, the court's reasoning for the dismissal would undoubtedly apply again if the amended complaint were construed as attempting to reinstate this claim. In his memorandum in opposition to defendant's motion for protective order, Williams does not argue that he has a pending Title VII claim. Record Doc. No. 27.
The Secretary filed another motion to dismiss, which was denied, Record Doc. No. 24, and he filed his answer on July 26, 2002. Record Doc. No. 25.
Defendant recently filed a motion to quash and for protective order, arguing that all of plaintiff's discovery requests (interrogatories, requests for production and requests for admissions) should be quashed. He contends that, because plaintiffs claims must be decided on the administrative record under both the Civil Service Reform Act and the Administrative Procedures Act, no discovery should be allowed. Record Doc. No. 26.
Williams filed a timely opposition memorandum. He argues that his discovery requests are designed in part to elicit the administrative record from defendant, because that record has not yet been filed with the court, and in part to narrow the scope of any issues that will be litigated by eventual summary judgment motions. Record Doc. No. 27.
The parties agree that this court's review is governed by the Civil Service Reform Act and the Administrative Procedure Act, both of which generally limit judicial review of an agency's action to the administrative record before the agency at the time of its decision. 5 U.S.C. § 702, 706, 7703(c); Florida Power Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985); Chappell v. Wallace, 462 U.S. 296, 303 (1983) (review of military appeals board decision); Camp v. Pitts, 411 U.S. 138, 142 (1973); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977); Community for Creative Non-Violence v. Lujan, 908 F.2d 992, 997 (D.C. Cir. 1990).
In reviewing a final Merit Systems Protection Board decision in a "mixed case" that involves both discrimination and non-discrimination claims, the court must review the discrimination claim de novo and the non-discrimination claim on the administrative record. Murray v. United States Dep't of Justice, 821 F. Supp. 94, 101, 108 (E.D.N.Y.), aff'd, 14 F.3d 591 (2d Cir. 1993) (citing 5 U.S.C. § 7703(c); Barnes v. Small, 840 F.2d 972, 979 (D.C. Cir. 1988); Romain v. Shear, 799 F.2d 1416, 1421 (9th Cir. 1986)); accord Randle v. Benson, 19 F.3d 371, 373 (7th Cir. 1994); Mirza v. Department of Treasury, 875 F. Supp. 513, 521 (N.D.Ill. 1995); Cohen v. Austin, 861 F. Supp. 340, 342-43 (E.D.Pa. 1994). In the instant mixed case, the presiding district judge dismissed Williams's discrimination claim but exercised her discretion to retain jurisdiction of his non-discrimination claim. Record Doc. No. 24. Accordingly, review of that claim will be on the administrative record, pursuant to the Civil Service Reform Act.
In deciding whether a federal agency's challenged action was arbitrary and capricious, not in accordance with law or unsupported by substantial evidence, which are the standards of review under both Acts, the court "must conduct `a searching and careful review' of the facts to determine whether `the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.'" Chemical Mfrs. Ass'n v. United States Envtl. Protection Agency, 870 F.2d 177, 199 (5th Cir. 1989) (quoting Citizens to Preserve Overton Park, 401 U.S. at 416)).
It is well established that the court "may not consider evidence outside the administrative record when determining whether to uphold agency action," except that "administrative officials who participated in the action may explain their actions" either through testimony or affidavits. Harris v. United States, 19 F.3d 1090, 1096 n. 7 (5th Cir. 1994) (citing Citizens to Preserve Overton Park, 401 U.S. at 416; State v. Verity, 853 F.2d 322, 327 n. 8 (5th Cir. 1988); Asarco, Inc. v. United States Envtl. Protection Agency, 616 F.2d 1153, 1159, 1160 (9th Cir. 1980)).
In certain limited circumstances, a court may permit supplementation of the administrative record when such supplementation is necessary to provide a full explanation of the agency's decision. A court also may find it necessary in some cases to consider explanations regarding the state of the original record and decision, although it may not entertain post hoc rationalizations where no rationale was set forth before.Common Sense Salmon Recovery v. Evans, 217 F. Supp.2d 17, 20 (D.D.C. 2002) (citing James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996); Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989); Walter O. Boswell Mem. Hosp. v. Heckler, 749 F.2d 788, 791-92 (D.C. Cir. 1984);Carlton v. Babbitt, 900 F. Supp. 526, 531 (D.D.C. 1995)).
Because the court's scope of review is narrow, discovery is generally limited to the materials in the administrative record. Sokaogon Chippewa Community v. Babbitt, 929 F. Supp. 1165, 1172 (W.D.Wis. 1996). However, "[t]he `whole record' is not necessarily those documents that the agency has compiled and submitted as `the' administrative record. . . . The `whole' administrative record . . . consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position." Exxon Corp. v. Department of Energy, 91 F.R.D. 26, 32-33 (N.D.Tex. 1981) (Higginbotham, J.) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88 (1951);Tenneco Oil Co. v. Department of Energy, 475 F. Supp. 299, 317 (D.Del. 1979); Petrolane Inc. v. Department of Energy, 79 F.R.D. 115, 119 (C.D.Cal. 1978)).
Thus, the court and the parties may look outside the administrative record specified by the agency under limited circumstances. Limited discovery may be permitted, for example, when it appears that the agency relied on substantial materials not included in the record or when the procedures used and factors considered by the decisionmaker require further explanation for effective review. Camp, 411 U.S. at 142-43;Citizen Advocates for Responsible Expansion v. Dole, 770 F.2d 423, 437 n. 18 (5th Cir. 1985); Public Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982); Sokaogon Chippewa Community, 929 F. Supp. at 1172;Preserve Endangered Areas of Cobb's History, Inc. ("P.E.A.C.H.") v. United States Army Corps of Eng'rs, 915 F. Supp. 378, 383 (N.D.Ga. 1995). Plaintiff may be permitted some limited discovery to explore whether the agency considered other evidence, either directly or indirectly, in reaching its decision and to determine whether the administrative record is actually complete. Dopico v. Goldschmidt, 687 F.2d 644, 654 (2d Cir. 1982); P.E.A.C.H., 915 F. Supp. at 383; Texas Steel Co. v. Donovan, 93 F.R.D. 619, 621 (N.D.Tex. 1982); Exxon Corp., 91 F.R.D. at 33.
Finally, a court may permit discovery "(1) when there is a `strong showing of bad faith or improper behavior,' or (2) when discovery provides `the only possibility for effective judicial review and when there have been no contemporaneous administrative findings.'" Common Sense Salmon Recovery, 217 F. Supp.2d at 20 (quoting Community for Creative Non-Violence, 908 F.2d at 997).
In the instant case, defendant has not filed the administrative record with the court. While it appears that defendant's request for an order "protecting Defendant from future discovery respective to the instant suit" is overly broad, neither plaintiff nor the court can tell at this time what discovery of information outside the administrative record, if any, might be permitted. Accordingly,
IT IS ORDERED that defendant's motion to quash and for protective order is DENIED AS PREMATURE, subject to the following order:
No responses to the subject discovery are required at this time. Instead, defendant must file the administrative record into the court's record no later than December 31, 2002. Williams must review the record after it has been filed, and no later than January 15, 2003. No later than 15 days following plaintiffs review of the administrative record, counsel for both parties must confer in good faith pursuant to Local Rule 37.1E to determine whether the need for discovery has been obviated by defendant's filing of the administrative record, and if not, what specific discovery plaintiff seeks to pursue. If the parties cannot reach agreement as to what discovery, if any, is required, a new motion, either to compel or for a protective order, may be filed thereafter.