As I noted in a recent opinion, a clear distinction must be drawn between the Court’s allowing supplementation of the administrative record and the Court’s considering extra-record evidence: “For a court to supplement the record, the moving party must rebut the presumption of administrative regularity and show that the documents to be included were before the agency decisionmaker. On the other hand, for a court to review extra-record evidence, the moving party must prove applicable one of the eight recognized exceptions to the general prohibition against extra-record review.”

Sara Lee Corp. v. Am. Bakers Ass’n, 2008 U.S. Dist. LEXIS 65848 (D.D.C. Aug. 27, 2008)

The magistrate judge in this recent opinion addressed the distinction between supplementation of the administrative record and consideration of evidence outside the administrative record. The two categories may seem similar but the burden of proof is quite different.


The Sara Lee case has a long history.

Sara Lee contended that the PBGC’s determination that the American Bakers Association Retirement Plan was a multiple-employer pension plan was arbitrary and capricious. In a prior 1979 decision, the PBGC had determined that the plan was an aggregate of single-employer plans. The distinction has relevance on the point of withdrawal liability – and that was the economic issue that gave rise to the dispute.

Administrative Proceedings

The case combines issues of administrative law with familiar issue of the appropriate standard of review. The issue discussed in the opinion is one of administrative law, not a Section 1132 case.  Nonetheless, the case presents interesting analogies, however, for ERISA practitioners who must come to grips with the administrative law paradigm so often applied in the Section 1132 setting.

Discovery Issue

The plaintiff wanted to get the “real” story behind the agency’s reversal of position. As the magistrate judge explained:

In this instance, plaintiff claims both that the PBGC considered additional documents that were not made part of the record and that the PBGC should have considered the information it seeks to have produced in the discovery it wants.

The proof standard was difficult. The plaintiff had to prove that the documents was before the actual decisionmakers involved in the determination. The judge ruled that the plaintiff failed to meet this burden.

Extra-Record Discovery

The plaintiff’s request was, in effect, a bid to have the court consider “extra-record” evidence. The argument was well-framed, but short on proof according to the court.

The premise of plaintiff’s argument, that the PBGC’s 2006 determination is not adequately explained by the record currently before the Court, falls within one of the exceptions to the general rule that judicial review of agency actions is limited to the administrative record. . . . However, the Court need only consider the possibility that review of extra-record evidence is appropriate if it agrees with plaintiff that the PBGC’s action is not already adequately explained. In this case, review of the PBGC’s 2006 determination indicates that a resort to extra-record evidence is unnecessary as the PBGC’s decision is clear on its face.

Note: Discovery issues can merge to some extent with appeals of administrative proceedings.

. . . plaintiff’s approach to “discovery” in this APA case is fundamentally flawed. As plaintiff would have it, deficiencies in the PBGC’s reasoning, its having promulgating a rule without notice, or making its decision retroactive without considering the consequences, justify discovery. While if true they may justify remand to the agency for reconsideration, they not do have anything to do with the fundamental question of whether record is to be limited to the administrative record that has been filed and on which the PBGC’s determination will rise or fall.

Comparing The Standard Of Review – The standard of judicial review under 5 U.S.C. § 706(2)(A) is virtually the same as that in the ERISA context:

the appropriate standard for review was, accordingly, whether the Comptroller’s adjudication was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ as specified in 5 U.S.C. § 706(2)(A). In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new  record made initially in the reviewing court