ROYCE C. LAMBERTH, Chief Judge.
Before the Court are the Parties' Joint Motion [580] for a Scheduling Order, plaintiffs' Motion [586] to Compel Discovery, and defendants' Motion [589] for a Protective Order. Having carefully considered the motions, oppositions, replies, the entire
This is an old case, inherited by this Court from the Honorable Oliver Gasch in February 2000. As described in an early opinion of this Court, plaintiffs claimed, in 1988, that various agencies
In June 2011, defendants moved this Court, pursuant to Federal Rule of Civil Procedure 60(b)(5), to vacate Judge Gasch's 1993 Order, which modified and furthered the enforcement of the permanent injunction. Defs.' Mot. Vacate [568-1] 5, June 22, 2011 (referring to Order [331] Apr. 21, 1993; see also Nat'l Law Ctr., 819 F.Supp. at 77). Defendants contend that the 1993 Order is "no longer equitable" because "its objectives have been achieved" and because of "changes in the law and in circumstances." Defs.' Mot. Vacate [568-1] 1, 6. Defendants allege that they have "consistently complied with the Court's Order" and aver that they have an "unassailable track record." Id. 7-8. Apart from these representations, defendants' motion contains no evidence supporting their claim that changed circumstances warrant this Court's exercise of its equitable powers to dissolve the longstanding injunction.
In September 2011, plaintiffs filed an unopposed motion seeking additional time to respond to defendants' motion to vacate the 1993 Order. Pls.' Mot. Extension [577] Sept. 26, 2011. Plaintiffs indicated that good cause for the extension existed because "the parties have agreed to craft a mutually agreeable schedule that allows for some discovery, which [p]laintiffs believe is necessary to oppose [d]efendants'
The Court agrees with plaintiffs that they are entitled to some discovery. Defendants' opposition to plaintiffs' request for discovery, based upon their belief that review of agency action is limited to the administrative record absent a showing of bad faith, Defs.' Mot. Protective Order [589-1] 8-10, reflects a pair of fundamental confusions.
First, defendants confuse a challenge to final agency action and a challenge to an agency's failure to act. Defendants are correct that, in a challenge to final agency action, judicial review is ordinarily limited to the administrative record in existence at the time of the agency's decision. Aguayo v. Harvey, 476 F.3d 971, 976 (D.C.Cir.2007) (citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985)). In such circumstances, the district court acts like an appellate court, and the "entire case" is "a question of law." Amer. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001). Even when an agency's factual findings are at issue, the question for the district court is still a question of law — i.e., "whether [the agency] acted in an arbitrary and capricious manner." Univ. Med. Ctr. v. Shalala, 173 F.3d 438, 440 n. 3 (D.C.Cir.1999).
However, when it comes to agency inaction under 5 U.S.C. § 706(1), "review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record." Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir.2000). Said another way, if an agency fails to act, there is no "administrative record" for a federal court to review. Telecomms. Research & Action Ctr. v. F.C.C., 750 F.2d 70, 79 (D.C.Cir.1984). Therefore, "there may well be reason for discovery, since agency delay is not necessarily a discrete event resulting from a decision based upon some sort of administrative record, but may be simply ... after-the-event justifications [] which may need to be explored by plaintiffs." Milanes v. Chertoff, No. 08 Civ. 2354(LMM), 2008 WL 2073420, at *1 (S.D.N.Y. May 13, 2008).
Such is the case here, where no administrative record was ever filed. Accordingly, in Judge Gasch's opinion granting plaintiffs' motion for summary judgment in 1988, he reviewed that motion under 5 U.S.C. § 706(1) (authorizing reviewing courts to "compel agency action unlawfully withheld or unreasonably delayed"), and made findings of fact based upon a statement of facts submitted by plaintiffs (to which defendants did not object), which referenced deposition testimony, various exhibits, and other discovery. Nat'l Coalition for the Homeless v. U.S. Veterans
However, defendants' motion to vacate the 1993 Order does not involve review of agency action or inaction under the APA. This brings us to defendants' second confusion. Defendants are also confusing a challenge to agency action generally — as was the case originally in this litigation — and a court's monitoring of compliance with its own orders. While, in reviewing agency action under the APA, the agency is ordinarily the finder of fact, when it comes to a court's enforcement and monitoring of its own orders, the court is the judge and jury. As noted above and repeated by Judge Gasch and this Court at various stages of this litigation, a federal court has broad discretion in using its inherent equitable powers to ensure compliance with its orders. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (discussing the inherent powers of federal courts). These powers are governed by no rule or statute, "but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Chambers, 501 U.S. at 43, 111 S.Ct. 2123 (citations and quotations omitted). The "power of a court of equity to modify a decree of injunctive relief ... is long-established, broad, and flexible." Salazar ex rel. Salazar v. District of Columbia, 633 F.3d 1110, 1116 (D.C.Cir.2011) (citations and quotations omitted). Equity would not be achieved if a court decided simply to rubber-stamp an enjoined party's unsupported self-assessment of its compliance with a court order. This is reflected in this Circuit's law, which requires courts to make factual inquiries in evaluating motions to vacate or modify injunctions under Federal Rule of Civil Procedure 60(b)(5). See Petties ex. rel. Martin v. District of Columbia, 662 F.3d 564, 571 (D.C.Cir.2011). With respect to defendants' motion to vacate the 1993 Order, they bear the burden, under Rule 60(b)(5), of "establishing that changed circumstances warrant relief." Horne v. Flores, 557 U.S. 433, 129 S.Ct. 2579, 2593, 174 L.Ed.2d 406 (2009). Defendants cannot meet their burden, and plaintiffs (and this Court) cannot test defendants' allegations, absent facts.
Therefore, the Court will allow some discovery in this case to facilitate its evaluation of defendants' motion to vacate the 1993 Order. Such discovery will be limited to the development of those facts necessary to advance the parties' arguments with respect to defendants' motion to vacate the 1993 Order. The Court will order the parties to meet and confer, to both narrow any differences between them on the scope of this discovery and to reach a
How defendants came to believe that they could persuade the Court to lift a longstanding injunction on nothing other than their own say-so is baffling, and their failure to cooperate on discovery has resulted in a significant and unnecessary delay in the resolution of their own motion. While this is an old case, it's an important one, with real consequences for people who have fallen about as far down in the depths as one can in this country. The Court hereby advises defendants that it expects their sincere cooperation with plaintiffs in discovery going forward.
Accordingly, it is hereby
ORDERED that plaintiffs' Motion [586] to Compel Discovery is GRANTED IN PART AND DENIED IN PART; and it is further
ORDERED that defendants' Motion [589] for a Protective Order is DENIED; and it is further
ORDERED that the Parties' Joint Motion [580] for a Scheduling Order is DENIED AS MOOT; and it is further
ORDERED that the parties, within thirty (30) days of this Memorandum and Order, shall meet and confer, and shall file with the Court a proposed scheduling order — jointly if possible, separately if necessary — for the conduct of limited discovery in this case. This discovery shall be limited to what is necessary to permit the parties to support their arguments on behalf of, or in opposition to, defendants' Motion [568] to Vacate the Court's April 21, 1993 Order.
SO ORDERED.