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1ST CAS~ Z _avel 1 printed in FULL form. WILFRED E. ALLICK, JR., Plaintiff, v. MANUEL LUJAN, JR., Defendant ALLICK v. LUJAN Civil Action No. 89-2269 (CRR) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 1990 U.S. Dist. LEXIS 9101 July 16, 1990, Decided July 17, 1990, Filed JUDGES: [*1] Charles R. Richey, United States District Judge. OPINIONEY: RICHEY OPINION: ORDER PAGE 2 The plaintiff in the above-captioned case challenges the decisions of the National Park Service of the Department of Interior in terminating his concessions permit, to conduct sail boat excursion cruises from St. Croix to Buck Island Reef National Monument in the Virgin Islands. For the most part, the plaintiff's lawsuit is a standard Administrative Procedure Act ("APA") challenge of the agency's decisions, based upon the administrative record, as "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). However, in addition to this APA attack on the agency's "attrition policy" and the decisions made pursuant to that policy to revoke his permit and not issue him another permit, the plaintiff also makes constitutional due process and equal protection arguments grounded upon the alleged lack of a "rational basis" for the agency's attrition policy. The defendant has filed a motion for summary judgment along with the administrative record. In his opposition, the plaintiff contends, inter alia, that the record is incomplete and that the defendant has failed to [*2] consider material information. Moreover, the plaintiff argues that he should be permitted to supplement the record and that the Court should order the defendant to respond to the plaintiff's outstanding discovery requests, which have been stayed pending resolution of the defendant's dispositive motion. Due to certain questions raised by the plaintiff's papers and not adequately addressed by the administrative record, the Court holds that, at this time, it cannot rule on the defendant's summary judgment motion and that the plaintiff should have an opportunity to conduct appropriate discovery and supplement the yp record. The Court acknowledges that "judicial review of agency action is CT normally confined to the full administrative record before the agency at the time the decision was made." Environmental Defense Fund v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981). However, it is by no means unique or unprecedented for a court, in an effort to satisfy its responsibility to conduct a "substantial inquiry," to permit S=~ = LEXISg NEXt_~== =M LEXIS' NEXt LEXJS' NEXtS==i Services of Mead Data Central, Inc.

J S. Dist. LEXIS 9101, *2 PAGE 3 discovery and allow the record to be supplemented. See id. at 285 (the court "felt that it could not adequately discharge its duty to engage in a 'substantial inquiry' if [*3] it were required to 'take the agency's word that it considered all relevant matters"' (quoting Asarco, Inc. v. United States Environmental Protection Agency, 616 F.2d 1153 (9th Cir. 1980)). This Circuit has recognized several exceptions to the general rule that judicial review of agency action is confined to the administrative record, including, inter alia: (1) when agency action is not adequately explained in the record before the court; (2) when the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence which it failed to include in the record; . . . (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; (6) in cases where agencies are sued for a failure to take action ... Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989). Although the scope of an appropriate administrative record may be entirely clear when the challenged agency decision is formal hearing and adjudication or a formal rulemaking in connection with a "notice and comment" procedure, when the agency decision under attack--as in this case--is the result of a relatively informal, less structured [*4] process, the precise boundaries of the applicable administrative record may be less clear. Moreover, in view of the plaintiff's constitutional challenge to the entire attrition policy instituted and administered by the defendant, the Court is loathe to bind the plaintiff inextricably to the administrative record developed in the course of applying that challenged policy. For the foregoing reasons and without in any way resolving the underlying merits of this dispute, the Court will stay its ruling on the defendant's summary judgment motion until the plaintiff has had an opportunity to supplemer.~ the record with information relevant to his claims. To that end, the Court will order the defendant to respond to the plaintiff's outstanding discovery requests and to any discovery requests, permissible under the Federal Rules of Civil Procedure, that he deems necessary in light of this Order and the entire record herein. After the completion of this discovery, the plaintiff may supplement the record, nl and he may also file a motion for summary judgment if he so desires. In any event, both parties will have an opportunity to supplement the papers that are currently before the Court. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - nl If the plaintiff did in fact receive an additional one-year permit, effective from June 1983 to June 1984--as he claims and the defendant disputes--this will give him an opportunity to produce the permit and include it in the record before the Court. - - - - - - - - - - - - - - - - - End Footnotes - - - - - - - - - - - - - - - - - [*5] Accordingly, it is, by the Court, this 16 day of July, 1990, ORDERED that the defendant shall respond forthwith to the plaintiff's outstanding discovery requests and to any other discovery requests he may propound that are consistent with the Federal Rules of Civil Procedure; and it LEXIS" NEXt_=~ = LEXIS'NEXIS"01110"N" LEXIS~NEXISg==~ SPrvices of Mead Data Centra(, Inc.

J S. Dist. LEXIS 9101, *5 is PAGE 4 FURTHER ORDERED that all of the above-ordered discovery shall be completed by 4:00 p.m. September 17, 1990; and it is FURTHER ORDERED that, by 4:00 p.m. September 21, 1990, the plaintiff shall file the material, if any, that he deems necessary to supplement and complete the administrative record or file a written statement that he does not wish to supplement the record; and it is FURTHER ORDERED that, by 4:00 p.m. September 26, 1990, the plaintiff shall indicate, in writing, whether he intends to supplement his opposition or file a motion for summary judgment and the defendant shall indicate, in writing, whether it intends to supplement its motion for summary judgment. ~ Q ~ CT~ ~ C~! Od ~ ~ LEXIS ~ NEXISR= = LEXIS~NEXIS== = LEXIS ~ NEXtS ==_ Servrces of Mead Data Central, Inc.