Reforming the Extra-Record Evidence Rule in Arbitrary and Capricious Review of Informal Agency Actions: A New Procedural Approach

Following the Supreme Court’s decision in Overton Park, a core principle of the judicial review of informal agency action is that such review is limited to the “full administrative record that was before the [agency].” And yet, ever since Overton Park, courts have struggled to apply the “record review rule” to the vague and undefined boundaries of the administrative records produced by the informal rulemaking process. As a result, courts have often felt the need to go outside of the administrative record on a case-by-case basis in order to consider “extrarecord evidence.” In the process, the federal circuits have developed a number of ad hoc “exceptions” to the record review rule. These federal common law exceptions are incoherent, vary significantly between and within the federal circuits, and in several instances facially contradict clear Supreme Court precedent. Moreover, the fact that these exceptions vary greatly between circuits has led to several circuit splits on important matters of substantive federal law. This chaotic and contradictory case law poses a significant problem for courts, agencies, and litigants who have little reliable guidance on when extra-record evidence may be considered in review of informal agency action. The first Part of this Article closely examines the case law regarding the various exceptions to the record review rule that have developed in the federal circuits and explains the problems created by this muddled case law. The second Part of the Article proposes a new approach to determining the scope of the administrative record for review that focuses on the procedural opportunities for public participation in the agency decisionmaking process. Applying this procedural approach will simplify the evaluation of extra-record evidence and bring the case law back in line with the main body of modern administrative law.