Filed: May 18, 2018
Latest Update: May 18, 2018
Summary: ORDER ON MOTION TO COMPEL F. DENNIS SAYLOR, IV , District Judge . This is an action arising out of the Environmental Protection Agency's directive banning scientists in receipt of certain EPA grants from serving on the agency's federal advisory committees. The complaint alleges that the directive was arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. 701-706. On March 27, 2018, defendants moved to dismiss the complaint on the bases of standing, ripeness
Summary: ORDER ON MOTION TO COMPEL F. DENNIS SAYLOR, IV , District Judge . This is an action arising out of the Environmental Protection Agency's directive banning scientists in receipt of certain EPA grants from serving on the agency's federal advisory committees. The complaint alleges that the directive was arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. 701-706. On March 27, 2018, defendants moved to dismiss the complaint on the bases of standing, ripeness,..
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ORDER ON MOTION TO COMPEL
F. DENNIS SAYLOR, IV, District Judge.
This is an action arising out of the Environmental Protection Agency's directive banning scientists in receipt of certain EPA grants from serving on the agency's federal advisory committees. The complaint alleges that the directive was arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. §§ 701-706.
On March 27, 2018, defendants moved to dismiss the complaint on the bases of standing, ripeness, finality, and justiciability. The motion to dismiss also contends (in abbreviated fashion) that even if the complaint is justiciable, the complaint fails to state a claim because the agency's action was not arbitrary and capricious.
Plaintiffs have moved to compel production of the administrative record on the ground that the issue of whether the agency action was "arbitrary and capricious" cannot be resolved without reference to the record. Defendants note, correctly, that the administrative record is not normally necessary to resolve issues of standing, ripeness, finality, or justiciability. Plaintiffs, however, point to defendants' alternative basis for dismissal, which is that the agency complied with the APA.
It is true that production of the administrative record is ordinarily required in order to resolve the issue of whether an agency action complied with the APA. See Atieh v. Riordan, 727 F.3d 73, 75-76 (1st Cir. 2013). Here, however, defendants have raised that issue only in conditional form: defendants contend that even if the justiciability requirements are met, the agency complied with the statute. Under the circumstances, and at this stage, the Court will not require production of the administrative record while it considers the justiciability issue. However, at this stage, it will not consider defendants' alternative and conditional argument that the agency complied with the APA. If the complaint survives the justiciability review, the Court will again take up the issue of production of the administrative record if appropriate.
Accordingly, plaintiffs' motion to compel is DENIED without prejudice to its renewal consistent with this order.
So Ordered.
