eg0788,
From
AILF, following section deals with discovery to develop administrative record if it's not sufficiently developed for court to make a decision. In your case, looks like the AUSA is planning to submit what's currently available regarding your AOS with USCIS to the court when AUSA files the answer to your complaint, without going through discovery.
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9. Discovery
• Can discovery be carried out against the government agency in an APA suit?
Yes, in certain cases. The general rule in an APA action is that judicial review is limited to the administrative record and thus no discovery is allowed. There are exceptions to this rule. Moreover, in any case in which there are additional claims besides the APA claim, the court may permit discovery outside of the administrative record with respect to those claims.
As a general rule, judicial review under the APA is limited to the administrative record that was before the agency when it made its decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (“[T]he focal point for judicial review [in an APA suit] should be the administrative record already in existence, not some new record made initially in the reviewing court”). This rule is particularly applicable in challenges to a decision or agency action in an individual case. Based upon this general rule, the government will frequently object to any discovery being carried out in any action brought under the APA.
There are exceptions to the general rule. The primary exception applies when there is no administrative record for the court to review, or the record may be insufficient with respect to the claims in the suit. Such an incomplete record “may frustrate judicial review,” Voyageurs National Park Assoc. v. Norton, 381 F.3d 759, 766 (8th Cir. 2004), and discovery may be necessary to supplement the agency record. See also Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988) (court may inquire outside the record when necessary to explain the agency’s action or when the agency has relied on documents not in the record).
This often will be the case where the suit challenges a pattern or practice of agency decisions or action, rather than the decision in one individual case. In such pattern and practice cases, there is not a single agency record to be reviewed and the court may permit discovery.
Even in individual cases, however, discovery may be necessary to supplement the agency record. To remedy an incomplete or inadequate record, the district court may allow discovery, although the court may narrowly tailor the scope of discovery to respond to whatever is missing in the agency record. Voyageurs National Park Assoc., 381 F.3d at 766. In particular, the Supreme Court has said that inquiry into the mental processes of the agency decision-maker is to be avoided unless it is “the only way there can be effective judicial review.” Overton Park, 401 U.S. at 420.
For example, in an APA challenge to the denial of a marriage-based visa petition for alleged fraud, the plaintiffs sought to depose two agency employees engaged in the investigation of the visa petition. Sabhari v. Cangemi, No. 04-1104 ADM/JSM, 2005 U.S. Dist. LEXIS 3550 (D. Minn. 2005). The plaintiffs argued that these depositions were necessary because the record was incomplete in that there was no contemporaneous administrative record to explain why USCIS deviated from its normal practices and procedures when investigating the marriage petition. Id., 2005 U.S. Dist. LEXIS 3550, *6. The district court agreed with this, but more narrowly tailored the discovery, ordering that the defendant USCIS was to submit the information that plaintiffs sought in affidavits rather than by deposition. Id.
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A. The parties conferred on September 24, 2008. Because this action is brought under the APA, the case will be decided on the administrative record, and discovery is not appropriate. Accordingly, the parties are exempt from the initial disclosure requirement. Defendants will file a copy of the administrative record and provide a copy to Plaintiff when their Answer is filed with the Court.
