The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
Currently pending and ready for resolution is plaintiff's Motion for Leave to Serve Discovery and to Supplement the Administrative Record of Sara Lee Corporation, Lewis Bros. Bakeries, Inc., American Bakers Association Retirement Plan, and Board of Trustees of the American Bakers Association Retirement Plan. For the reasons stated below, plaintiff's motion to supplement the administrative record and conduct additional discovery will be granted in part and denied in part. i.e., as to the three categories of documents the Pension Benefit Guarantee Corporation ("PBGC") has already agreed to make part of the Administrative Record ("AR"), plaintiff's motion will be granted. As to all other aspects, plaintiff's motion will be denied
The underlying basis for plaintiff's current motion is its belief that the determination issued by the PBGC in 2006 as to the American Bakers Association Retirement Plan ("the Plan") was based on a different legal standard than the determination made in 1979. Memorandum of Law in Support of Motion for Leave to Serve Discovery and to Supplement the Administrative Record of Sara Lee Corporation, Lewis Bros. Bakeries, Inc., American Bakers Association Retirement Plan, and Board of Trustees of the American Bakers Association Retirement Plan ("Plains. Mem.") at 3.
According to plaintiff, the 1979 determination focused on how the plan was structured and how it operated, while the 2006 determination focused on how the Plan was classified. Id. at 3-4. Specifically, plaintiff contends that the 1979 determination identified the Plan as an aggregate of single-employer plans based on PBGC's demonstration that there were means in place that would effectively restrict the co-mingling of employee contributions but that the 2006 determination stated that in order to be classified as an aggregate of single-employer plans, the Plan had to effectively eliminate the risk of cost-shifting among Plan participants by specifically creating and maintaining separate accounts for each employer's contributions. Id. at 4. Plaintiff asserts that the PBGC's 2006 decision changed the applicable standard and therefore was actually a rulemaking without any notice to plaintiff thereby violating the Administrative Procedures Act. Id. at 6, 27.
Plaintiff now moves this Court for the right to conduct additional discovery to determine what standards were actually used by the PBGC in making its 2006 determination and to clarify whether the 2006 determination was intended to apply retroactively. Id. at 4-6.
Plaintiff also seeks 1) a privilege log as to those documents being withheld by the PBGC, id. at 16-17, 2) copies of e-mails and other electronically stored documents maintained by PBGC staffers who were involved in the 2006 decision-making process, id. at 17, 3) answers to its requests for admissions as to numerous topics, id. at 18, 4) copies of communications between Interstate Brands Corporation ("IBC")*fn2 and PBGC prior to the 2006 determination, id. at 24, and 5) information relating to the retroactive application of the 2006 determination. Id. at 26. Ultimately plaintiff seeks to have the administrative record supplemented with the materials yielded by this discovery.
In opposition, defendants argue 1) that plaintiff has not made the requisite showing of either bad faith or incompleteness to justify supplementation of the administrative record, PBGC's Memorandum in Opposition to Motion for Leave to Serve Discovery and to Supplement the Administrative Record ("Defs. Opp.") at 3-4, 2) that the PBGC's collection of the administrative record is entitled to a presumption of regularity, id. at 3, 3) that plaintiff's request for additional discovery is subject to an even higher burden than that used to analyze plaintiff's request to supplement the record, id. at 4, 4) that, in any event, the information plaintiff seeks was already turned over in response to plaintiff's previous Freedom of Information Act ("FOIA") request, id. at 5, and 5) that the PBGC need not turn over every relevant document in this APA proceeding-only those documents that were either directly or indirectly considered by the PBGC in making the decision that plaintiff claims is arbitrary and capricious. Id.
As I noted in a recent opinion, a clear distinction must be drawn between the Court's allowing supplementation of the administrative record and the Court's considering extra-record evidence: "For a court to supplement the record, the moving party must rebut the presumption of administrative regularity and show that the documents to be included were before the agency decisionmaker. On the other hand, for a court to review extra-record evidence, the moving party must prove applicable one of the eight recognized exceptions to the general prohibition against extra-record review." Pac. Shores Subdivision, Cal. Water Dist. v. U. S. Army Corps of Eng'rs, 448 F. Supp. 2d 1, 6 (D.D.C. 2006) (citing Fund for Animals v. Williams, 391 F. Supp. 2d 191, 197-98 (D.D.C. 2005)); Am. Wildlands v. Kempthorne,530 F.3d 991, 1002 (D.C. Cir. 2008) (supplementation of administrative record permitted only in unusual circumstances justifying departure from general rule that record is limited under APA to administrative record; only permitted when agency deliberately or negligently excluded documents, background information is needed to determine whether agency considered all of relevant factors or agency failed to explain administrative action so as to frustrate judicial review); Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989).
In this instance, plaintiff claims both that the PBGC considered additional documents that were not made part of the record and that the PBGC should have considered the information it seeks to have produced in the discovery it wants.
A. Supplementation of ...