McClung et al v. Masset et al

Filing 30

ORDER granting 26 Motion to Strike and denying Petitioners' request for a jury trial. The Court's 25 Initial Scheduling Order is vacated. The Court denies without prejudice petitioners' request for discovery. Respondents' motion for extension is denied as moot 29 . Signed by Judge Kristine G. Baker on 10/24/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
JOHN AND KIM McCLUNG,
v.

PETITIONERS

Case No. 1:13-cv-00044-KGB

GLEN A. MASSET, COLONEL, in his official
capacity as District Engineer, Little Rock District,
U.S. ARMY CORPS OF ENGINEERS;
and the U.S. DEPARTMENT OF THE ARMY,

RESPONDENTS

ORDER
Petitioners bring this action for review of an agency decision pursuant to the
Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-06 (Dkt. No. 1). Before the Court is
respondents’ motion to strike petitioners’ jury trial request and for the Court to issue a briefing
schedule (Dkt. No. 26). Respondents request that the Court strike petitioners’ request for a jury
trial because petitioners are not entitled to a jury trial under the APA. Respondents also request
that the Court issue a briefing schedule in place of the Rule 26(f) deadlines set forth in the
Court’s Initial Scheduling Order (Dkt. No. 25), arguing that this action is exempt from the
requirements of Federal Rule of Civil Procedure 26. Petitioners have not responded, and the
time for filing a response has passed. For good cause shown, respondents’ motion to strike is
granted (Dkt. No. 26).
The APA permits judicial review of agency actions. 5 U.S.C. § 702. A reviewing court
will not set aside agency action unless it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Sierra Club v. Kimbell, 623 F.3d 549, 559 (8th Cir.
2010) (quoting 5 U.S.C. § 706(2)(A)). The reviewing court shall decide all relevant questions of
law, interpret constitutional and statutory provisions, and determine the meaning or applicability
of agency action. 5 U.S.C. § 706. APA review of agency action is normally confined to the

agency’s administrative record. Newton Cnty. Wildlife Ass’n v. Rogers, 141 F.3d 803, 807 (8th
Cir. 1998); Camp v. Pitts, 411 U.S. 138, 142 (1973). “By confining judicial review to the
administrative record, the APA precludes the reviewing court from conducting a de novo trial
and substituting its opinion for that of the agency.” Rochling v. Dep’t of Veterans Affairs, 725
F.3d 927, 936 (8th Cir. 2013) (quoting Voyageurs Nat. Park Ass’n v. Norton, 381 F.3d 759, 766
(8th Cir. 2004)). Nothing in the APA provides a right to a jury trial. Accordingly, respondents’
request to strike petitioners’ request for a jury trial is granted.
Respondents are correct that actions for review on an administrative record generally are
except from the initial disclosure requirements of Rule 26(a)(1) and, in turn, the requirements of
the Rule 26(f) conference regarding initial disclosures. See Fed. R. Civ. P. 26(a)(1)(B)(i), (f)(1).
Local Rule 16.2(1) of the Eastern and Western Districts of Arkansas specifically exempts actions
for review of an administrative record from the Rule 16(b) Scheduling Order.
The Court acknowledges that petitioners state in their petition that this is a case of bad
faith and request that the Court allow full discovery (Dkt. No. 1, ¶ 16). The Court is not
convinced at this stage of the litigation based on the record before it that the proper showing has
been made and, therefore, denies without prejudice petitioners’ request for discovery. “If the
agency record is for some reason inadequate, ‘the proper course, except in rare circumstances, is
to remand to the agency for additional investigation.’” Newton, 141 F.3d at 807 (quoting Florida
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). When there is “a contemporaneous
administrative record and no need for additional explanation of the agency decision, ‘there must
be a strong showing of bad faith or improper behavior’ before the reviewing court may permit
discovery and evidentiary supplementation of the administrative record.” Id. Petitioner may
renew this request and brief the issue further, if appropriate, as the case proceeds.

2

For these reasons, respondents’ motion for extension of time for the Rule 26 conference
and report is denied as moot (Dkt. No. 29).
Accordingly, respondents’ motion to strike is granted (Dkt. No. 26). Petitioners’ request
for a jury trial is denied. The Court’s Initial Scheduling Order is vacated. At this time, the Court
denies without prejudice petitioners’ request for discovery. Respondents’ motion for extension
is denied as moot (Dkt. No. 29). The Court will issue a briefing schedule by separate order.
SO ORDERED this the 24th day of October, 2013.

__________________________________
Kristine G. Baker
United States District Judge 

3