In re Department of Commerce et al.

Whether in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decision maker.

Respondents are several U.S. states and cities and the District of Columbia. Petitioners, the Department of Commerce and the Census Bureau, added a "citizenship status" question to the decennial census, contrary to concerns that households with non-citizens would be disincentivized to participate. The Secretary of Commerce issued a letter articulating the reasons for the decision, positing that the cost associated with fewer responses was outweighed by the accuracy of information. The district court granted Respondents’ request for extra-record discovery to explore the Commerce Secretary's mental processes and compel depositions of other high-ranking Executive Branch officials. The Second Circuit denied mandamus relief. The Supreme Court granted certiorari to decide whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decision maker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decision maker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis. Petitioner argues that the district court’s decision defies settled law that judicial review should be limited to the existing administrative record. They ask the Court to issue a writ of mandamus to the district court ordering it to halt the deposition of the Commerce Secretary, exclude all extra-record discovery, and confine its review to the administrative record already in existence. Alternatively, they ask that the Court construe their petition as a petition for writ of certiorari, grant it, and reverse the refusal of the court of appeals to grant mandamus relief.