254 F. Supp. 3d 160
D.D.C.2017Background
- Plaintiffs challenge denial of their EB-5 visa petitions under the Administrative Procedure Act and assert retroactivity, due process, and equal protection claims.
- Plaintiffs moved for discovery into the agency’s past adjudicatory policies and practices to support those constitutional and retroactivity claims.
- The government argued that judicial review is limited to the administrative record and that discovery is inappropriate absent a showing of unusual circumstances or bad faith.
- Plaintiffs concede they are not entitled to discovery on their arbitrary-and-capricious APA claims but contend constitutional and retroactivity claims place them outside the APA record-review restriction.
- The Court reviewed precedent on whether constitutional or retroactivity claims allow supplementation of the administrative record and found plaintiffs’ authorities unpersuasive or distinguishable.
- The Court denied the motion for discovery and ordered the parties to submit a revised dispositive-motion briefing schedule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discovery/supplementation of the administrative record is permitted for plaintiffs’ constitutional (due process and equal protection) claims | Constitutional claims are outside the APA record-review rule and therefore allow discovery under courts’ equitable powers | Judicial review of constitutional claims in APA cases remains confined to the administrative record; allowing discovery would undermine APA limits and invite constitutional labels to evade record-review rules | Denied — constitutional claims here are essentially the same as APA claims; discovery is not appropriate and record-review rule applies |
| Whether discovery is permitted for the alleged retroactivity claim | Retroactivity claim is non-APA and governed by factor-balancing (Retail, Wholesale & Dep’t Store Union), so discovery into agency practices is allowed | Retroactivity claims are not a separate cause of action that removes APA record-review limits; plaintiffs point to no authority that automatically allows discovery | Denied — court declines to treat retroactivity claim as exempt from the administrative-record rule and refuses discovery absent stronger authority or showing |
| Whether plaintiffs made the requisite showing of unusual circumstances or bad faith to justify discovery | Plaintiffs assert discovery is necessary to find evidence of a new agency policy or internal materials | Plaintiffs have not shown a prima facie case of bad faith or that the administrative record is incomplete | Denied — plaintiffs failed to make the substantial showing required to supplement the record |
| Whether precedent cited by plaintiffs (e.g., Carlsson/Chang) compels discovery here | Carlsson allowed limited discovery on retroactivity; Chang noted district-level discovery on retroactivity | Courts reviewing Chang/Carlsson emphasize factual differences; Chang did not rule discovery appropriate and involved actual rule changes | Denied — court finds those authorities distinguishable and not persuasive to justify broad discovery here |
Key Cases Cited
- Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44 (D.C. Cir.) (administrative-review courts should have neither more nor less information than the agency had)
- Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685 (D.C. Cir.) (judicial review of informal agency rulemaking ordinarily confined to administrative record)
- City of Dania Beach v. FAA, 628 F.3d 581 (D.C. Cir.) (discovery/supplementation permitted only for unusual circumstances)
- Air Transp. Ass’n of Am. v. Nat’l Mediation Bd., 663 F.3d 476 (D.C. Cir.) (party must make a substantial showing that material indicative of bad faith or an incomplete record exists)
- Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 58 F.3d 1191 (D.N.M.) (denying discovery on First Amendment claim; permitting APA record limits)
- Harvard Pilgrim Health Care v. Thompson, 318 F. Supp. 2d 1 (D.R.I.) (denying discovery on constitutional claims in APA review)
- Puerto Rico Pub. Housing Admin. v. U.S. Dep’t of Housing & Urban Dev., 59 F. Supp. 2d 310 (D.P.R.) (discovery permitted where administrative record was absent)
- Rydeen v. Quigg, 748 F. Supp. 900 (D.D.C.) (limited allowance of extra-record affidavits distinct from broad discovery)
- Chang v. United States, 327 F.3d 911 (9th Cir.) (district-court discovery on retroactivity noted but appellate court did not rule on appropriateness)
- Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F.2d 380 (D.C. Cir.) (factor-balancing test for retroactivity inquiries)
- U.S. Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir.) (constitutional claims reviewed with no deference to agency)
- Mass. Bd. of Retirement v. Murga, 427 U.S. 307 (U.S.) (rational-basis standard for classifications not involving suspect classes)