Subpoena Duces Tecum Served on Office of Comptroller of Currency, In re
Decision Date | 06 October 1998 |
Docket Number | 97-5229,Nos. 97-5228,s. 97-5228 |
Citation | 156 F.3d 1279 |
Parties | IN RE: SUBPOENA DUCES TECUM SERVED ON THE OFFICE OF THE COMPTROLLER OF THE CURRENCY |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (94ms00329)(95ms00006).
Before: EDWARDS, Chief Judge, SILBERMAN and SENTELLE, Circuit Judges.
ON PETITION FOR REHEARING
The government's petition for rehearing raises one point that calls for a response. We held that the government's deliberative process privilege does not apply when a cause of action is directed at the government's intent. We explained that the privilege had developed in and applies to circumstances where the government decisionmaking process is "collateral" to a plaintiff's claim. The government suggests that the term "collateral" is imprecise and that the deliberative process privilege has been employed in circumstances where the government's decisionmaking process could not be thought collateral to the cause of action. According to the government, our reasoning could be interpreted as suggesting that the deliberate process privilege would not apply in a case where the government action is challenged as arbitrary and capricious under the APA because, if an illegal motive were shown, then the government's action would necessarily be arbitrary and capricious.
When a party challenges agency action as arbitrary and capricious the reasonableness of the agency's action is judged in accordance with its stated reasons. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Agency deliberations not part of the record are deemed immaterial. See Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). That is because the actual subjective motivation of agency decisionmakers is immaterial as a matter of law--unless there is a showing of bad faith or improper behavior. See Saratoga Dev. Corp. v. United States, 21 F.3d 445, 457-58 (D.C.Cir.1994); Overton Park, 401 U.S. at 420, 91 S.Ct. 814. (Where there is no administrative record to review, the party challenging the agency action may inquire into the decisionmaking process in order to create such a record, but it does not necessarily follow that the party can also probe subjective motivations.)
Whether or not under those circumstances...
To continue reading
Request your trial-
Landry v. Fed. Deposit Ins. Corp.
... ... Placement Services; and an Ecuadorian currency scheme through which one could purportedly ... 721, there was no showing that the Comptroller General's exposure to removal by Congress in any ... The office of STJ was "established by Law" (the threshold ... relies on an erroneous reading of In re Subpoena Duces Tecum Served on the OCC, 145 F.3d 1422 ... ...
-
Ridenour v. Kaiser Hill Co., L.L.C.
... ... 's motion to dismiss, their request to subpoena the Government's person most knowledgeable about ... intervene, the complaint is unsealed and served on the defendant. § 3730(b)(3). If the ... They rely on In re: Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 156 F.3d 1279 (D.C.Cir.1998). The ... ...
-
State v. Salazar
... ... Matt Bledsoe, Office of Attorney General, Montgomery, AL, for ... its stated reasons.' (quoting In re Subpoena Duces Tecum Served on Office of Comptroller of ... ...
-
Outdoor Amusement Bus. Ass'n, Inc. v. Dep't of Homeland Sec.
... ... II, the Acting Administrator of DOL's Office of Foreign Labor Certification ("OFLC"). ECF 69-1 ... irrelevant as a matter of law." In re Subpoena Duces Tecum , 156 F.3d 1279, 1279 (D.C.Cir.1998) ... ...
-
Overly restrictive administrative records and the frustration of judicial review.
...as a waiver of its claim of privilege."). (187) In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 156 F.3d 1279, 1280 (D.C. Cir. 1998). (188) See supra Part IV.A. (189) 457 F. Supp. 2d 1158 (D. Wash. 2006). (190) The court granted plaintiffs' motion to comp......