Dept. of Commerce v. USDC SD NY

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 decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials —when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

Petitioner received a request from the Department of Justice to include a citizenship question on the 2020 decennial census. After reviewing options and noting that the non-response rate would not be materially affected, Petitioner included the question. Respondents filed suit alleging that the inclusion violates the Administrative Procedure Act 5 U.S.C. §701 et seq., and that it denies equal protection to racial minorities, among other claims. After several requests for extra-discovery and depositions, Petitioner filed writs of mandamus with the Second Circuit to halt further discovery for some of the requests and was denied. Petitioner also filed stays with the Supreme Court which were denied. Petitioner argues that citizenship is a non-controversial question that has a history of inclusion on the census. Therefore, the extra-discovery of Secretary Ross’ mental process is outside the scope of the administrative record. Petitioner argues despite whether the Secretary’s motives were actually in bad faith, as long as the formal decision-making process was adhered to, that does not amount to bad faith and Respondents may not probe his mental processes. Petitioners asked that the Court treat the petition as a writ of certiorari and reverse the court of appeals’ refusal to grant mandamus. The Court vacated the Second Circuit’s orders with instructions to see United States v. Munsingwear, Inc., 340 U.S. 36 (1950). VACATED and REMANDED.