How to Take Discovery Against the Government in APA Cases

Inside Counsel
09.01.11
In this article, Adam Feinberg discusses the possibility of obtaining discovery against the government in Administrative Procedure Act (APA) cases.  The “record review rule” states that a challenge to a federal agency’s action as being “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the APA is usually limited to the agency’s administrative record.  As a corollary to that rule, courts typically will not permit free-ranging discovery against the government.  However, discovery is often appropriate if it is necessary for meaningful judicial review, if the agency decision-makers engaged in bad faith or improper conduct, or if the case involves an agency delay or refusal to take a non-discretionary act.  In such cases, an APA plaintiff should consider filing a motion for leave to take discovery against the government.
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