Peace v. NRC, 243 U.S. App. D.C. 68, 751 F.2d 1287, 1324-26 (D.C. Cir. 1984), courts are loathe to depart from the record developed by an agency in reviewing that agency's decisions. It is clear, in short, that supplementation of the administrative record through post-administrative discovery is "the exception [and] not the rule." Id. at 1324.
One such exception warranting supplementation arises when a plaintiff "ma[kes] a prima facie showing that the agency excluded from the record evidence adverse to its position . . . ." Id. at 1327. Relying in part on this exception, plaintiffs refer to a report dated March 4, 1986 -- months before Capital was suspended -- which defendants inadvertently produced in the course of briefing the present motions. The report chronicles the results of an investigation into Capital's launch bridge kits apparently undertaken by Radian, Inc. for the Army. The report, which was not included in the administrative record, contains certain arguably exculpatory comments pertaining to Capital's work product, including Radian's ultimate recommendation that "it is not necessary to investigate the delivered AVL Bridge welds any further . . . [since] a failure of any of the Boom Outrigger welds would not be a safety hazard . . . ." Without ruling at this juncture on the probity or weight of this report,
we note that it was apparently commissioned by the Army; that the report's tenor appears strikingly more favorable to Capital than General Hansen's suspension determination; and that at the least Radian's recommendations and findings merited incorporation -- or at least reference -- in the administrative record. This is particularly true given that the suspension notice provided plaintiffs announced that the suspension was premised on certain "government testing" which purportedly evidenced material defects in Capital's products. Complaint Ex. E.
In light of this information, plaintiffs have made out their prima facie case that supplementation of the present record is appropriate. This does not mean, of course, that plaintiffs are necessarily entitled to the seven depositions and potentially voluminous documentary materials they seek. E.g., Sierra Club v. Costle, 211 U.S. App. D.C. 336, 657 F.2d 298, 390 n.2 (D.C. Cir. 1981) (court allows supplementation of record by requiring government affidavits responsive to gaps in record, but rejects requests to propound interrogatories and conduct depositions of former agency officials). We need not rule on the precise scope and manner of supplementation, however, for defendants have raised a meritorious concern as to the timing of plaintiffs' discovery. Specifically, defendants maintain that any discovery in this action must be stayed so as not to interfere with a criminal investigation of Capital and the launch bridge contract which is presently pending in the Northern District of Illinois.
Having reviewed the parties' pleadings, we now conclude that defendants' objection to discovery is meritorious. Defendants have submitted an affidavit which demonstrates that a criminal investigation involving Capital and elements of the contract here at issue is currently under way. Phillip Turner Aff. para. 2. Courts are widely acknowledged to possess the authority to stay discovery in such circumstances in order to prevent litigants from availing themselves of liberal civil discovery rules in order to circumvent the more restrictive guidelines governing criminal discovery. Gordon v. Federal Deposit Insurance Corp., 138 U.S. App. D.C. 308, 427 F.2d 578, 580 (D.C. Cir. 1970); Founding Church of Scientology v. Kelley, 77 F.R.D. 378, 380 (D.D.C. 1977); Larouche Campaign v. FBI, 106 F.R.D. 500, 501 (D. Mass. 1985). Presented with such a scenario, the court must determine the extent to which the civil discovery threatens the secrecy and integrity of criminal proceedings, and, if the discovery could prove meddlesome, whether to stay discovery entirely or to narrow the range of discovery so as not to impinge upon the criminal proceedings. Founding Church of Scientology, supra, at 381; Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962), cert. denied, 371 U.S. 955, 9 L. Ed. 2d 502, 83 S. Ct. 502 (1963).
The chronology of the filing of this action, the lodging of the present discovery requests, and the initiation of criminal proceedings raises the distinct danger that discovery obtained in the present action may be utilized to defend against the criminal action. Cf. Larouche Campaign, 106 F.R.D. at 502 (noting timing of filings and similarity of actions as relevant factors in evaluating stay request); United States v. Percuoco, 109 F.R.D. 565, 567 (D. Mass. 1986) (engaging in similar analysis). It is apparent from the parties' papers that issues central to the present civil action are also pivotal to the criminal investigation now under way in Illinois federal court. In its pleadings plaintiffs have made clear that the discovery they seek "goes directly to the issue whether Capital's [launch bridge] kits are 'materially defective.'" Plaintiff's Opposition to Motion for Protective Order at 11. In addition, plaintiffs' pleadings in an action filed in the United States Claims Court featuring the same contract averred that "the criminal investigation centers on allegations by two ex-employees of Capital that Capital intentionally performed defective work on a U.S. Army contract for bridge launchers." Capital Engineering & Mfg. Co. v. United States, No. 263-87C, Plaintiffs' Opposition to Defendant's Motion to Stay at 2-3, dated August 7, 1987. It would appear beyond peradventure, then, that the criminal investigation and civil discovery now sought are inextricably intertwined. It was surely in part for this reason that plaintiffs' parallel action in Claims Court was stayed "pending the outcome of [the] grand jury criminal investigation of plaintiff and the contract . . . ." Id., Order at 1 (Cl. Ct. Aug. 25, 1987).
Given the foregoing, the court concludes that the government's interest in protecting the secrecy and integrity of its criminal proceeding outweighs plaintiffs' need for the information which might be obtained through the discovery now sought. Because we can envision no principled way of narrowing the range of discovery so as not to compromise the criminal proceedings, we conclude that defendants' motion for a protective order must be granted as to all discovery sought by plaintiffs.
For the foregoing reasons, this case presents an actionable case or controversy over which this court has jurisdiction and which, as pleaded, is appropriate for judicial review. Moreover, plaintiffs are entitled to supplement the administrative record in order to provide for effective review of the agency's decision. Nevertheless, discovery in this action must be stayed until the grand jury convening in Illinois declines to return an indictment, or, if an indictment is returned, until the ensuing criminal trial is completed.
An order consistent with the foregoing has been entered this day. Date: September 8, 1988
Upon consideration of plaintiffs' motion to amend the complaint, defendants' motion to dismiss, defendants' motion for protective order, defendants' motion to conduct an in camera review of certain documents, plaintiffs' oppositions to defendants' motions, and the entire record herein, and for the reasons expressed in a memorandum opinion entered this day, it is by the court this 8th day of September, 1988
ORDERED that plaintiffs' motion to amend the complaint is hereby granted, and it is
ORDERED that defendants' motion to dismiss is hereby denied, and it is
ORDERED that defendants' motion to conduct an in camera review of certain documents is hereby denied without prejudice, and it is
ORDERED that defendants' motion for protective order is hereby granted, and it is
ORDERED that all discovery in this action is hereby suspended pending termination of criminal proceedings currently pending in the Northern District of Illinois.