This Comment argues that courts should more readily permit extra-record discovery when preliminary signs of pretext strongly suggest "bad faith and improper behavior" by agency decision-makers. 3 1 Section L.A sets the scene by describing the basic mechanics of litigation challenging agency decisions. Section I.B shifts focus by examining two recent Supreme Court decisions that illustrate the Court's struggle to review executive action where an agency seems to have offered a pretextual justification. Part II then shows how agencies' reliance on pretextual justifications is becoming a growing and serious problem-especially within the Trump Administration-and describes a 2017 decision by the Fish and Wildlife Service that raised concerns about pretextual decision-making. Part III first presents a solution: courts should examine whether preliminary signs of pretext strongly suggest "bad faith or improper behavior" by agency officials, allowing challengers to engage in extra-record discovery, including depositions of administrative actors. Part III then proposes and defends five factors that courts should weigh when considering whether the context surrounding an agency's actions sufficiently suggests pretext. 3 2 These five factors include: (1) the political climate of the agency action; (2) the posture of the agency action, such as whether the agency is rescinding, withdrawing, or promulgating a rule; (3) the extent to which the agency relied on scientific uncertainty; (4) the agency's underlying congressional mandates; and (5) the agency's interaction with interest groups. Considering these factors collectively would help courts evaluate whether extra-record discovery should be permitted, which in turn would enable courts to meaningfully determine if there is a "significant mismatch" between the agency's proffered and "genuine" justification. 3 3 The Comment ends with a brief discussion of the benefits and drawbacks of such an approach.
Expanding the Administrative Record: Using Pretext to Show "Bad Faith or Improper Behavior",
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol92/iss2/6