The Yale Law Journal

April 2024

Rationalizing the Administrative Record for Equitable Constitutional Claims

Administrative Law

abstract.This Note attempts to resolve the uncertain scope of evidentiary review for constitutional claims against agencies. It examines the conventional rules under the Administrative Procedure Act, concluding that they stem from traditional rules of relevancy for discovery, rather than a statutory mandate. It then traces the divergent approaches of lower courts and proposes that the scope of evidentiary review for constitutional claims against agencies should be determined by the decision rules for a particular claim, consonant with its reading of the principles underlying the scope of review in administrative litigation.

author. Yale Law School, J.D. 2023. Special thanks to Nicholas R. Parrillo for supervising this project and providing extensive feedback as it developed. I am also indebted to many others for their invaluable commentary as I drafted and revised this piece, including Anya Bernstein, Alvin K. Klevorick, Judith Resnik, Russell C. Bogue, Ethan Fairbanks, Anna Lipin, Daniel A. Mejia-Cruz, Mack Ramsden, and Karina M. Shah. Finally, I thank Kenneth P. Coleman, Marcella Michalek, Raquel Leslie, Dena M. Shata, and the staff of the Yale Law Journal for improving this Note through their helpful feedback and careful editorial assistance. All views—and errors—in this piece are my own.


The scope of evidentiary review in suits against federal agencies is one of the most confused—and confusing—areas of administrative law. The question of what evidence a reviewing court should consider, despite being fundamental to the effective vindication of the rights of plaintiffs harmed by the federal government, is remarkably unsettled. In particular, federal courts have not articulated clear principles about what evidence plaintiffs may obtain from the government to prove their cases when they assert equitable constitutional claims against agencies.1

Saying that this area of the law lacks clear principles is putting it somewhat charitably. This basic question has created a fractured and splintered “morass” of lower-court case law,2 largely because courts are uncertain about where to locate the right of action that permits plaintiffs to bring constitutional claims against agencies. The Administrative Procedure Act (APA) provides a statutory right of action for constitutional claims in Section 706.3 But that right of action is not exclusive. Courts recognize a separate right of action—rooted in 28 U.S.C. § 1331, Congress’s grant of equity jurisdiction to the federal courts4—for litigants to bring statutory and constitutional claims against the federal government outside the APA’s framework. This is called “nonstatutory review” or, more precisely, review of an “implied equitable right of action.”5

For suits under the APA’s statutory right of action, courts have developed a comprehensive and limiting common law of evidence and discovery by building on the APA’s “whole record” provision.6 This set of principles, known as the “record rule,” dramatically limits discovery against agencies by creating a strong presumption that a court’s review should be limited to the documents the agency submits as the “administrative record” supporting a given agency action. This is a perfectly reasonable result for ordinary judicial review of administrative action under the APA. But if it is applied to certain classes of constitutional claims that require evidence of the intent of decision makers within agencies, it can complicate and even serve as an effective judicial-review bar for those claims. Under the conventional way of thinking about the record rule, which treats it as a statutory mandate, this evidentiary restriction would not apply to cases brought through an implied equitable right of action.

For example, suppose that the Department of Homeland Security (DHS) promulgates a rule altering the standards under which noncitizens may be considered for immigrant visas or lawful-permanent-resident status. A plaintiff brings a claim under the Fifth Amendment alleging that the agency did so pretextually: that it used facially neutral reasons to support its policy decision but actually intended to reduce the number of nonwhite persons eligible to become permanent residents. Should the agency action be reviewed solely based on the administrative record (containing only those neutral statements of reason) submitted to the court, as the APA commands, or should the plaintiff be entitled to extra-record discovery to prove their claim?7 Furthermore, suppose the plaintiff challenges the same agency action as arbitrary and capricious, claiming that the facially neutral language used by the agency is a post hoc rationalization of the initial decision.8 Should they be entitled to extra-record discovery, meaning the ability to force the agency to produce nonprivileged internal documents not submitted as part of the administrative record, or even depose agency staff on the basis of their parallel constitutional claim? This Note answers these questions and attempts to create a path out of the morass.

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This story begins with the APA, which serves as a general waiver of sovereign immunity for claims against agencies. It confers jurisdiction to a federal court where a party has “suffer[ed] legal wrong because of agency action” and is “seeking relief other than money damages.”9 This “basic presumption of judicial review”10 created by the APA for agency action applies so long as Congress has not explicitly made the agency action unreviewable11 and the agency action is not “committed to agency discretion by law.”12

This waiver of sovereign immunity for claims seeking nonmonetary relief applies regardless of whether a plaintiff files suit pursuant to an APA cause of action. This general waiver springs out of the 1976 amendments to Section 702.13 The D.C. Circuit has “‘repeatedly’ and ‘expressly’ held in the broadest terms that ‘the APA’s waiver of sovereign immunity applies to any suit whether under the APA or not,’”14 unless “any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.”15 Other circuit courts that considered the issue have reached the same conclusion, finding that Section 702 operates as a general waiver of sovereign immunity for actions seeking nonmonetary relief against agencies.16

For claims brought pursuant to a cause of action within the APA,17 this waiver is cabined by a statutory finality and exhaustion requirement—that only “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court” can be reviewed by an Article III court18—and a judicial ripeness doctrine.19

The remedial scope of the APA’s grant of jurisdiction is broad, and includes provisions aimed at enabling judicial review of both agency inaction (Section 706(1)) and action (Section 706(2)). The “legal wrongs” a plaintiff may seek to remedy include (1) delayed or withheld agency action, (2) arbitrary actions, (3) procedural deficiencies in agency action, (4) actions unauthorized by statute, and (5) actions in violation of a party’s “constitutional right, power, privilege, or immunity.”20

Equitable constitutional claims, the last bucket of claims considered by the APA, have been a persistent source of conceptual and doctrinal difficulty for courts because of their unclear relationship to the rest of the statute. The statute is silent about how its procedural requirements for litigation against agencies would apply to a constitutional claim. Section 706(2)(B), which provides that “the reviewing court shall . . . interpret constitutional and statutory provisions” and “shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity,” is not clear about whether it (1) creates a separate cause of action for constitutional claims seeking an APA remedy;21 (2) channels all equitable constitutional claims seeking a remedy against an agency into the statute, making them subject to its procedural provisions;22 or (3) simply codifies some potential remedies for those implied equitable constitutional claims which already existed in the common law of federal equity practice.23

A brief note is warranted about constitutional review’s relevance to the broader project of judicial review of federal administration. Purely constitutional cases tend to proceed when all other traditional tools available to judges to control the federal administrative state have failed, due in large part to the canon of constitutional avoidance.24 While it is increasingly common for well-advised plaintiffs to plead parallel claims under the APA and the Constitution, if applicable, courts generally only reach their constitutional claims if the agency action is upheld under administrative-law doctrines. Over the last few decades, the Supreme Court has primarily focused on structural constitutionalclaims, that is, challenges to the nature and scope of Congress’s delegation of authority to agencies and their internal processes for implementing it.25 These claims are typically divorced from the specifics of any agency action. For example, a structural constitutional challenge to the appointment procedure for or removal protections afforded to a given administrative-adjudicatory body stands separately from the agency action that gives parties standing to sue; the logic behind a given decision of that body is irrelevant to whether it was constituted in a constitutionally sound way.26

The questions addressed by this Note are made more urgent by the revival of high-profile due-process, animus, and equal-protection claims under the Fifth and First Amendments over the last decade.27 These claims are related to statutory review under the APA and agency organic and enabling statutes.28 Due-process and animus claims are also cognizable as procedural deficiencies in agency process; animus claims are closely related to “pretextual” APA claims, which allege the agency acted for reasons other than those stated by it. Equal-protection claims involve a more searching review of the intent behind and impacts of agency action, in a manner somewhat similar to hard-look review.29 Taken together, these constitutional claims are firmly rooted in the record created by the agency in support of that action, as opposed to the more theoretical world of structural constitutional cases, which care about the specifics of who did what to whom and why, primarily for preliminary justiciability issues such as standing, mootness, ripeness, and exhaustion.30

Courts have sharply split on whether constitutional claims are entitled to extra-record discovery, or even covered by the common law of the APA in the first place. The issue is compounded when constitutional claims are brought alongside another APA cause of action. Should a plaintiff be able to circumvent the common-law record-rule restrictions by bringing a parallel constitutional claim? To date, the federal courts have not arrived at any coherent resolution of this issue. It has also evaded sustained scholarly analysis: Conley K. Hurst has provided the only targeted perspective in an incisive student Comment. He argues that the scope of evidentiary review for equitable constitutional claims is necessarily limited by the text of the APA and the underlying policy preferences it reflects.31 This Note seeks, in part, to offer a counterpoint to Hurst’s perspective while providing the first detailed look at the characterization of the right of action allowing plaintiffs to bring constitutional claims against federal agencies and placing the record rule in the context of the ordinary principles of civil litigation. In essence, this Note seeks to de-exceptionalize the evidentiary principles of administrative litigation while providing a framework for the effective adjudication of constitutional claims against agencies.

First, in Part I, the Note unpacks the conflicting judicial and agency interpretations of the APA’s “whole record” provision and advances the argument that the provision does not limit the scope of evidentiary review for APA claims. Instead, it argues in Part II that this scope of review should be viewed as an extension of the familiar relevancy standard found in the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Evidence (FRE).32

Second, in Part III, the Note canvasses the conflicting doctrine on the characterization of constitutional claims against agencies and the scope of evidentiary review for these claims.

For some, these claims are vestigial, supplanted by the statutory right of action in the APA to the extent it supplies an adequate remedy for improprieties in agency action or inaction.33 For others, the implied equitable right of action survives, completely unscathed by the enactment of the APA, because that statute does not purport to be the exclusive pathway for relief against agencies.34 Yet, others still see the landscape as more varied: some claims must proceed using record-rule principles, while others may be maintained, in parallel, through the implied equitable right of action.35 As a result, the record rule has varying bite for constitutional claims depending on how the reviewing court characterizes those claims.

This Note argues this third view is the right one: that the statutory right of action and the implied equitable right of action coexist. As a result, it argues that the scope of evidentiary review for equitable constitutional claims against the government should be resolved through the familiar discovery principles in the FRCP—in particular, whether discovery would produce evidence relevant to the scope of review for a well-pleaded claim. As a functional matter, this position maintains the extremely limited availability of discovery for ordinary arbitrary-and-capricious claims under the APA and the record rule. It also provides a coherent pathway to discovery for those constitutional claims with decision rules that make the application of the record rule inapposite.