The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Previously pending on this court's law and motion calendar for January 12, 2012, was plaintiff's motion for discovery, filed December 8, 2011. The parties filed a joint statement on January 6, 2012. Plaintiff appeared in pro se. Alison Garner appeared telephonically for defendant. Having now heard oral argument and reviewed the joint statement, the court issues the following order.
The operative complaint is the amended complaint which contains two distinct causes of action for (1) breach of contract (actually breach of federal statutory duties within the context of a "settlement contract") and (2) lack of procedural due process.*fn1 The undersigned will not repeat the entire discussion as to how these claims were ascertained, see docket #s 19, 20; suffice it to say here that the first claim is to be decided under the standards of the Administrative Procedures Act, and the second claim stands on its own as a constitutional claim independent of the strictures of the APA.
Plaintiff has moved to compel discovery, but defendant responds that because this is an action for review of an administrative record under the Administrative Procedure Act ("APA"), the government is exempt from Rule 26. Plaintiff argues that his claim for lack of procedural due process is a claim arising under the Constitution and therefore it is not subject to the APA.
I. THE PARTIES' CONTENTIONS
It is difficult to determine exactly what discovery plaintiff is moving to compel as the joint statement contains briefing akin to a summary judgment motion. Plaintiff has set forth a statement of facts, disputed factual issues, and disputed evidentiary issues, and defendant has responded to this format of briefing. Although plaintiff's motion to compel discovery, filed December 8, 2011, requests discovery in general, claiming that the administrative record ("AR") is incomplete and defendants have acted in bad faith which is an exception to limited AR review, the joint statement filed on January 6, 2012, indicates that plaintiff not only seeks discovery of documents allegedly missing from the AR, but also disputes that certain documents should be contained in the AR because they are not relevant, and further seeks to supplement the AR with plaintiff's exhibits.
Defendant first contends that both of plaintiff's claims are governed by the APA. The first claim, that the Forest Service violated the APA in its decision process regarding plaintiff's permit, clearly comes under the APA. Defendant further argues that the second claim, for lack of procedural due process, arises under the APA because 5 U.S.C. § 706(2)(b) provides that "the reviewing court shall ... hold unlawful and set aside agency action... contrary to constitutional right, power, privilege or immunity." 5 U.S.C. §706(2)(B). Because the United States cannot be sued unless it waives sovereign immunity, defendant contends that plaintiff cannot proceed with his procedural due process claim unless there is this waiver which necessarily comes from the APA.
Defendant next argues that plaintiff has failed to demonstrate exceptional circumstances to justify extra-record review. In this regard, defendant argues that the court is required to presume that the Forest Service properly designated the record and included all documents directly or indirectly related to its decision. Defendant asserts that plaintiff has failed to present evidence to overcome the presumption that the record has been properly designated. Defendant also contends that even if further explanation by the agency is later deemed necessary, remand to the agency is the preferred course.
Plaintiff's second basis for requesting extra-record evidence is bad faith. Defendant asserts that this exception is especially narrow and mere allegations of bad faith are not sufficient to warrant extra-record review.
Plaintiff makes no argument regarding these exceptions to administrative record review in the joint statement; however,in his motion, plaintiff asserts that when defendants rescinded the construction permit, and then later terminated the use permit contract, they were motivated by considerations which are unknown and which may constitute affirmative misconduct at worst. Any such discovery may be contrary to their written statements. Therefore, plaintiff contends, the administrative record is incomplete in this regard. (Pl.'s Mot. at 6.)
Cases brought under the APA ordinarily do not consider extra ...