A motion to strike is an effective tool not only to reduce the record, but as importantly to put before the court early in the case your view that the filed record is filled with extraneous materials and that what counts either is not in the record or is insufficient to sustain the agency action. Sixth , try to depose the agency official certifying the record. When the record is filed, it will have been certified by an agency official as being full and complete. You may be able to establish sufficient questions about that certification to secure an order allowing you to depose that certifying official, particularly if the agency has to repeatedly update or supplement the record and with each addition, provide a new certification that this time it really is complete. Seventh , contest supplementary or explanatory affidavits by the agency.
Courts tend to allow agencies to supplement the record in their own defense with affidavits.
This is very difficult to combat because the courts are not inclined to allow the challenger to depose or cross-examine the author of the affidavit. If the government uses affidavits to explain its action, try to use these affidavits to your advantage by arguing that the government is being given the unfettered opportunity to explain away deficiencies in the agency s decision-making process. These administrative law doctrines allow the government for the most part to define the record and thereby the field on which claims of arbitrary and capricious action are litigated. They severely hinder a challenging party s ability to decipher and present a full factual account of what the agency did and why it is arbitrary and capricious. To make a dent in the government s position, counsel should press for early filing of the record, carefully scrutinize it both for what it contains and what is omitted and pursue the above strategies to secure a record more reflective of what actually happened when the agency made its decision.