Document Type
Article
Publication Date
2017
Abstract
This Article examines the proliferation of judicially created exceptions to the “record review rule” governing arbitrary and capricious review of informal agency action under the Administrative Procedure Act (APA). Although the Supreme Court in Overton Park and subsequent cases established that judicial review must be confined to the administrative record before the agency, lower courts have developed a fragmented and inconsistent body of federal common law permitting consideration of extra-record evidence. These exceptions vary across circuits, employ inconsistent terminology, and at times conflict with foundational principles of administrative law, including issue exhaustion and the deferential nature of APA review.
The Article argues that this doctrinal disarray produces circuit splits, uncertainty for litigants, and distortions in substantive outcomes. In response, it proposes a new procedural framework that distinguishes between omitted record evidence and true extra-record evidence and conditions admissibility on the availability of meaningful public participation in the underlying agency process. By anchoring evidentiary review to procedural opportunities—particularly notice-and-comment rulemaking—the proposed approach harmonizes extra-record doctrine with modern administrative law principles and restores coherence to arbitrary and capricious review.
Recommended Citation
Travis O. Brandon, Reforming the Extra-Record Evidence Rule in Arbitrary and Capricious Review of Informal Agency Actions: A New Procedural Approach, 21 Lewis & Clark L. Rev. 981 (2017)
