890 F. Supp. 2d 305
S.D.N.Y.2012Background
- Soundview challenges HRSA’s 2012–2017 Bronx Health Center Program grant award to Urban Health Plan, arguing the administrative record is incomplete and prejudiced against Soundview.
- HRSA conducted a Service Area Competition (Bronx SAC) with three applicants: Soundview, Urban Health, and Union; Urban Health was selected based on ORC evaluation and a rank-order list.
- Macrae, as Associate Administrator and Authorizing Program Official, awarded the grant to Urban Health after reviewing the ORC’s rank and final summary statements.
- Soundview sought to enlarge the administrative record to include deliberative pre-decisional materials and post-review evaluations, and additional connected documents; HRSA opposed expanding the record, arguing such materials are outside the record and not considered by decision-makers.
- The court denied Soundview’s motion to enlarge the administrative record, ruling that deliberative materials are generally excluded, post-review evaluations are irrelevant to the scoring/decision, and older emails related to Espada do not pertain to the challenged 2012–2017 grant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the record should include deliberative pre-decisional materials | Soundview argues such materials were before the decision-makers. | HRSA contends these materials are deliberative and not part of the record. | No; deliberative materials are excluded from the record. |
| Whether post-review evaluations should be added to the record | Post-review evaluation forms are relevant to the process. | Those forms were not considered and are not relevant to scoring/decision. | No; post-review evaluations are not part of the record and not needed for review. |
| Whether emails about Espada should be added to show prejudice | Emails reflect prejudice against Soundview due to Espada’s alleged misconduct. | No evidence these emails were before decision-makers or pertain to the 2012–2017 grant. | No; emails are not part of the record and not relevant to HRSA’s decision. |
| Whether the court should consider bad-faith extra-record evidence | Bad-faith misapplication of criteria could justify extra-record inquiry. | Bad faith requires strong showing; record evidence does not establish it. | No; insufficient showing of bad faith to justify extra-record materials. |
Key Cases Cited
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (U.S. 1971) (full record before agency required for review; deference to agency record)
- Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps. of Eng’rs, 448 F.Supp.2d 1 (D.D.C. 2006) (include only materials actually considered by agency decision-makers)
- State of Delaware Dep’t of Natural Res. and Envtl. Control v. U.S. Army Corp. of Eng’rs, 722 F.Supp.2d 535 (D.Del. 2010) (agency’s designation of record presumed regular; supplementation is the exception)
- Tafas v. Dudas, 530 F.Supp.2d 786 (E.D. Va. 2008) (limits on discovery in APA review; deliberative materials exclusion)
- Ad Hoc Metals Coalition v. Whitman, 227 F.Supp.2d 134 (D.D.C. 2002) (deliberative intra-agency materials ordinarily privileged and not in record)
- In re Subpoena Duces Tecum, 156 F.3d 1279 (D.C.Cir. 1998) (actual subjective motivation irrelevant absent bad faith)
- Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534 (9th Cir. 1993) (excludes internal deliberative process from record)
- San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 789 F.2d 26 (D.C.Cir. 1986) (deliberative materials not part of administrative record)
- Sierra Club v. U.S. Army Corps. of Eng’rs, 701 F.2d 1011 (2d Cir. 1983) (agency errors do not by themselves show bad faith)
- Four Points by Sheraton v. United States, 63 Fed.Cl. 341 (Ct. Fed. Cl. 2005) (court review of agency action and record rigor)