Unified Government of Wyandotte County/Kansas City, Kansas, The v. United States General Services Administration

Filing 99

MEMORANDUM AND ORDER denying 12 Plaintiff's Motion to Expedite Discovery. See order for details. Signed by Magistrate Judge Karen M. Humphreys on 2/24/2012. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNIFIED GOVERNMENT OF
WYANDOTTE COUNTY/KANSAS
CITY, KANSAS,
Plaintiff,
v.
UNITED STATES GENERAL SERVICES
ADMINISTRATION,
Defendant.

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Case No. 11-2400-JTM

MEMORANDUM AND ORDER

This matter is before the court on plaintiff’s motion “to expedite discovery.”
(Doc.12).1 For the reasons set forth below, the motion shall be DENIED.

Background
The General Services Administration (GSA) currently leases a building in downtown
Kansas City, Kansas for EPA’s Region 7 headquarters. Highly summarized, GSA was
unsuccessful in negotiating a renewal of the lease and solicited bids for office space in
August 2010. On April 5, 2011, GSA announced that the contract for leased space had been

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Plaintiff is a consolidated city-county government comprised of Wyandotte
County, Kansas and the City of Kansas City, Kansas.

awarded to a new entity and that EPA’s Region 7 headquarters would be relocated to office
space in Lenexa, Kansas, a suburb in the Kansas City metropolitan area. Faced with the
prospect of losing over 500 well-paying jobs, plaintiff filed this action under the
Administrative Procedure Act (APA) to set aside the new contract, alleging that the
solicitation and contract award violated certain Executive Orders. Plaintiff also moved for
a preliminary injunction prohibiting GSA from moving EPA to its new location.

Motion to Expedite Discovery
The pending discovery motion has an unusual history which requires explanation.
Plaintiff moved for expedited discovery shortly after filing its complaint and motion for a
preliminary injunction. Plaintiff requested that (1) discovery be allowed to proceed before
the parties had conferred concerning discovery and (2) the deadline for responding to
interrogatories, production requests, and requests for admission be shortened to twenty-one
days. GSA opposed the motion, arguing that (1) plaintiff was not entitled to discovery
because the court was limited to reviewing the administrative record, (2) plaintiff had not
identified specific discovery needed to support its motion for a preliminary injunction, and
(3) plaintiff had not shown good cause for expediting discovery responses.
The undersigned judge conducted a status conference to address plaintiff’s motion on
August 11, 2011. In addition to its initial objections, GSA argued that the District Court of
Kansas did not have jurisdiction to adjudicate this contract dispute and that a motion to
dismiss would be filed. The court took the motion to expedite discovery under advisement
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pending production of the administrative record and review of additional pleadings and
briefs. Briefing concerning plaintiff’s motion for a preliminary injunction and GSA’s motion
to dismiss was completed in January 2012. Briefing concerning the motion to expedite
discovery was also completed in late January 2012; therefore, the motion to expedite
discovery is finally ripe.
The court is not persuaded that discovery (including plaintiff’s request to expedite
discovery) should proceed at this time. The well-established rule in an APA case is that
judicial review of agency action is limited to the evidence before the agency. See, e.g.,
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971)(overruled on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977)(judicial review must be based on the full
administrative record that was before the agency at the time of its decision)). The court may
go outside the administrative record only in limited instances, such as: (1) providing
necessary background, or (2) where necessary to explain technical terms or complex subject
matter. Franklin Savings Association v. Director of Office of Thrift Supervision, 934 F.2d
1127 (10th Cir. 1991). Plaintiff has not satisfied any of the limited grounds for seeking
discovery beyond the administrative record.
In addition to the general rule limiting review to the administrative record, the court
notes that GSA’s motion to dismiss on jurisdictional grounds and plaintiff’s motion for a
preliminary injunction are fully briefed. The need for expedited discovery is questionable
given the status of those two motions.
Finally, plaintiff argues that discovery is necessary for purposes of the preliminary
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injunction hearing and that GSA is relying on evidence beyond the “administrative record”
in opposing its motion for a preliminary injunction.2 The court agrees that a motion for a
preliminary injunction raises issues, such as irreparable injury and the balance of harm, that
are not likely to be addressed in an agency’s administrative record. And, under certain
circumstances, some limited discovery might be appropriate to clarify the harm a party might
suffer if an injunction were entered. However, the court is not persuaded that discovery is
necessary in this instance. Plaintiff is aware of the harm it is likely to suffer through the loss
of over 500 jobs and the “declaration” attached to GSA’s response brief explains defendant’s
claimed economic harm if prevented from moving to the new office. The court is not
persuaded that discovery is needed concerning the respective “harm” asserted by the parties.
At best, plaintiff argues that discovery is necessary to “test the facts and arguments
on which GSA and Intervenor rely.” Plaintiff’s Reply, Doc. 77, p. 3. This is a broad based
request for discovery concerning the merits of the underlying case. Because the court is
limited to the administrative record when reviewing the agency’s administrative decision in
awarding the contract, the court is not persuaded that such broad discovery is warranted.

2

GSA’s response to plaintiff’s motion for a preliminary injunction includes a three
page “declaration” from Dennis Clemons, the “Lease Contracting Officer” for the
contract explaining the current lease costs and the costs that will be incurred if EPA is not
allowed to move to the new office space. This information is not unlike plaintiff’s
general assertions concerning the loss in income and tax revenue if the move occurs.
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IT IS THEREFORE ORDERED that plaintiff’s motion for expedited discovery
(Doc. 12) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 24th day of February 2012.

S/ Karen M. Humphreys
____________________________
KAREN M. HUMPHREYS
United States Magistrate Judge

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