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AMFAC RESORTS, L.L.C. v. U.S. DEPT. OF INTERIOR

April 24, 2001

AMFAC RESORTS, L.L.C., PLAINTIFF,
V.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS. NATIONAL PARK HOSPITALITY ASSN., PLAINTIFF, V. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS. HAMILTON STORES, INC., PLAINTIFF, V. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS. ARAMARK SPORTS AND ENTERTAINMENT SERVICES, INC., PLAINTIFF, V. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lamberth, District Judge.

  MEMORANDUM AND ORDER

Now before the Court are several issues related to the parties' access to and use of information. The plaintiffs seek discovery of materials outside the administrative record, and seek to share with their experts certain proprietary information that is already in the record. The defendants oppose the plaintiffs' motions for discovery, and demand a protective order limiting the circumstances under which the plaintiffs' experts may view portions of the administrative record. After a full consideration of the parties' memoranda, the applicable law, and for the following reasons, the Court DENIES the plaintiffs' discovery motions, and GRANTS in part and DENIES in part the defendants' motion for a protective order.

I. BACKGROUND

The plaintiffs in these cases have been concessioners at various national parks throughout the United States for over 30 years. Although their concession contracts expire at the close of this year, they are interested in continuing as concessioners. To this end, they have been participating in the National Park Service ("NPS") bidding process. It is this process to which the plaintiffs object, and seek to reform by the instant suit.

The plaintiffs' suits allege that the NPS's contracting process violates the Administrative Procedure Act ("APA") and the Tucker Act in that it

(1) denies the plaintiffs a preferred status in the contract renewal process;
(2) undervalues the plaintiffs' capital investment in their concession stores; and
(3) permits the NPS to review corporate transfers of "any controlling interest in a concessioner."

See, e.g., Complaint for Aramark, Dec. 22, 2000, at 3, 18.

From the outset of these cases, a chief area of dispute has been the information available to the plaintiffs. Although an official administrative record has been filed with the Court, the plaintiffs seek information beyond the record which they believe bolsters their cases. Specifically, the plaintiffs seek two main classes of information:*fn1 (1) information related to the plaintiffs' preferred status in contract renewal, and (2) information related the NPS's possessory interest valuation process.

With respect to the preferred status issue, the plaintiffs claim that discovery is necessary to show that they are indeed entitled to a preferred status in the contract renewal process. The plaintiffs concede that their concession contracts do not explicitly grant them such a status, but contend nonetheless that it is an implied term in the contracts. Discovery of information surrounding the contract negotiations will show, allege the plaintiffs, that a preferred status was contemplated and agreed upon by the parties.

With regard to the valuation issue, the plaintiffs claim that discovery is necessary to show that NPS's calculation of franchise fees and possessory interests is arbitrary and capricious. These calculations form an important part of the concession contract negotiation process, and an understanding how these values are calculated, argue the plaintiffs, is essential to challenging their validity. Although the administrative record includes a 13-page summary of the valuation process, the plaintiffs still claim that further information is necessary.

Besides seeking discovery, the plaintiffs also seek to share the aforementioned 13-page summary with their experts. Currently, the defendant argues that the summary contains important proprietary information, and that any expert who views it must agree never again to serve as an expert in a concession contract case against the NPS. The plaintiffs argue that such a condition prevents them from retaining an expert for their cases. They therefore propose a protective order that would permit limited disclosure to their experts.

II. ANALYSIS

A. The Plaintiffs' Demand for Discovery

Although the parties have characterized this as a discovery dispute, it is more properly understood as a dispute over the sufficiency of the administrative record. For, in cases brought under the APA and the Tucker Act, judicial review is normally confined to the administrative record.*fn2 Thus, any discovery request is necessarily predicated on the notion that the record is insufficient.*fn3 The Court below undertakes ...


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