What Is Extra-Record Evidence in a DOL 401(k) Rule Challenge?

Extra-record evidence is not a second chance to build the administrative case after DOL has acted. In ordinary APA review, the court starts with the agency record. A party asking the court to look beyond that record needs a legal reason for the departure, not merely evidence that would make its argument stronger.

That principle matters in 401(k) rule litigation because the most persuasive document in court may be the wrong document procedurally.

A trade association can commission a devastating economic analysis after a final rule.

A recordkeeper can submit a declaration showing that implementation cost is far higher than DOL projected.

A former official can describe internal disagreement.

None of those facts answers the threshold question:

Why may the reviewing court consider this material when judging the agency action that already occurred?

That question comes first.

Extra-Record Evidence Starts With a Classification Problem

The phrase:

“supplement the record”

is often too vague to be useful.

A party may actually be asking for one of several different things:

Those requests can overlap.

They do not use the same legal test.

A motion that says only:

“Plaintiff seeks supplementation because the evidence is relevant”

has skipped the hardest part.

Relevance alone is not the rule.

Why Does APA Review Normally Stay Within the Record?

Section 706 directs the reviewing court to review the whole record or the portions cited by a party.^[1]

The structure is retrospective.

The court is evaluating:

the agency action DOL made

using:

the legal and factual basis connected to that action.

The lawsuit is not supposed to become a new regulatory proceeding.

That preserves the line between:

• agency fact development
• agency policy judgment
• judicial review.

If courts routinely accepted new evidence merely because it was persuasive, the object of review would drift.

The case would stop asking:

Was DOL's action lawful when made?

and start asking:

What result seems best on the evidence available now?

Those are different proceedings.

Overton Park Rejects a Litigation-Built Substitute Record

Citizens to Preserve Overton Park v. Volpe is the starting point.^[2]

The lower courts had relied on litigation affidavits to evaluate the Secretary of Transportation's decision.

The Supreme Court rejected that approach.

The affidavits were not the whole administrative record.

More importantly, litigation explanations can become:

post-hoc rationalizations.

They can make an agency action look better after the fact than the contemporaneous record shows.

For a DOL rule challenge, the same risk arises when the government files a declaration stating:

“The Department considered X, rejected Y and selected Z because of factors A, B and C.”

If that reasoning cannot be traced to the agency action or legitimate contemporaneous record, the declaration cannot simply replace the administrative process.

INV-229's Chenery analysis addresses the rationale problem.

INV-230 addresses the underlying record.

Does Overton Park Allow Testimony From Agency Officials?

Sometimes, but not as routine discovery.

Overton Park recognized that the absence of formal findings can make review impossible in an unusual case.^[2]

The Court allowed the possibility of requiring participating officials to explain their action.

It also warned that inquiry into decisionmakers' mental processes is ordinarily to be avoided and associated deeper inquiry with a strong showing of bad faith or improper behavior.^[2]

That distinction is critical.

There is a major difference between:

“The existing record does not disclose the determinative agency reason.”

and:

“The challenger wants to depose the Secretary because the final rule is controversial.”

The second proposition does not follow from the first.

A Disagreement With DOL Is Not a Bad-Faith Showing

Assume a final retirement rule contains an economic estimate that regulated firms consider unrealistic.

That can support a merits argument.

It does not automatically support:

• depositions of EBSA officials
• document discovery into private motives
• interrogatories asking who preferred which policy
• discovery into political communications.

A challenger needs something more concrete before moving from:

the rule is badly reasoned

to:

the agency's stated explanation is not the real explanation.

Department of Commerce v. New York shows why that sequence matters.

Camp v. Pitts Makes the Existing Record the Focal Point

Camp v. Pitts is unusually direct.^[3]

The Supreme Court rejected a district-court approach that would have created a new evidentiary record to review an agency decision.

The focal point is the administrative record already in existence.^[3]

If the contemporaneous explanation is inadequate, Camp allows a more targeted response.

The court can seek clarification of the agency's determinative reason.

That is not the same as:

opening discovery and rebuilding the case.

This distinction matters because an agency explanation can be:

• terse
• ambiguous
• incomplete

without making every new piece of evidence admissible.

Clarification Is Not a New Evidentiary Hearing

Suppose DOL denies a prohibited-transaction exemption and gives one sentence:

“The proposed safeguards are not sufficiently protective.”

The administrative record contains extensive submissions.

The court cannot tell which safeguard failed.

A challenger asks to present:

• a new expert
• new transaction data
• testimony about safeguards developed after the decision.

Camp points toward a narrower problem.^[3]

The issue may be the agency's explanation.

A court can seek clarification or remand.

The court does not automatically need a new factual record.

Florida Power & Light Makes Remand the Better Default When Review Cannot Be Performed

Florida Power & Light Co. v. Lorion reinforces that institutional boundary.^[4]

When the administrative record does not support the agency action or does not permit the court to evaluate it, the ordinary course is to remand to the agency for additional explanation or investigation.^[4]

That principle prevents a subtle error.

A thin record does not necessarily justify:

more evidence in court.

It can justify:

more work by the agency.

For DOL litigation, this matters when the disputed issue depends on technical or policy judgment committed to the Department.

The court reviews that judgment.

It does not make the initial judgment itself.

Record Completion Is Different From Going Outside the Record

INV-230 introduces this distinction.

It deserves sharper treatment here.

Completion

The material already belonged to the historical agency process.

Example:

DOL's final rule expressly cites:

Economic Memorandum 17.

The certified record filed in court omits Economic Memorandum 17.

A motion to add it is trying to repair the record the court is supposed to review.

Extra-record evidence

The material did not belong to that historical record.

Example:

After the final rule, a trade association commissions:

Economic Report 2026-A.

DOL never saw it.

The report may be excellent.

It is still new.

The party is asking the court to go beyond the ordinary record.

That requires a different justification.

Courts Do Not Use “Supplementation” With Perfect Consistency

Terminology creates unnecessary confusion.

Some opinions use:

supplement the administrative record

to describe adding omitted material that should have been there.

Others use:

supplementation

for evidence outside the original record.

Some distinguish:

• completion
• supplementation
• extra-record evidence.

Others do not.

The safest approach is functional.

Do not ask:

“Is this called supplementation?”

Ask:

1. Did the material exist when DOL acted?
2. Was it before or considered by DOL?
3. Is the claim that the filed record omitted it?
4. Or is the party asking the court to consider genuinely new material?
5. Why does the court need it?

Those facts matter more than the label.

Department of Commerce Shows the Correct Sequence

Department of Commerce v. New York involved the decision to add a citizenship question to the 2020 census.^[5]

For record doctrine, the chronology is the important part.

The agency initially produced an administrative record.

Later, a supplemental memorandum revealed that the record did not tell the full decisionmaking story.

The district court ordered the record completed with additional material.

It also authorized extra-record discovery.

The Supreme Court concluded that the initial extra-record discovery order came too early.^[5]

At that point, the warranted response was completion of the administrative record.

Only later, after unusual evidence emerged, did the case present a stronger basis for inquiry outside the record.

That creates a disciplined sequence:

identify suspected omission → complete the historical record if warranted → evaluate the completed record → determine whether exceptional extra-record inquiry is still necessary.

Skipping the middle step makes ordinary record review disappear.

Department of Commerce Is Not a General Discovery Rule

The census litigation produced extraordinary facts.

That makes it a dangerous case to summarize casually.

It does not stand for:

“Allege pretext and obtain discovery.”

The Supreme Court preserved the basic rule that judicial review ordinarily uses the administrative record and contemporaneous explanation.^[5]

A challenger invoking Department of Commerce should identify the specific reason ordinary record review is inadequate.

Examples might include:

• a supplemental agency memorandum contradicting the original chronology
• evidence that central communications were omitted from the filed record
• a serious mismatch between the stated reason and documented decision path
• concrete evidence of improper behavior.

A complaint's adjective:

“pretextual”

does not do that work by itself.

Biden v. Texas Reaffirms the Baseline

Biden v. Texas again treated contemporaneous agency explanation and the existing administrative record as the ordinary basis for review.^[6]

That matters because the most aggressive reading of Department of Commerce would turn record review into ordinary civil discovery.

The Supreme Court did not do that.

The baseline remains:

agency action + contemporaneous explanation + administrative record.

A party seeking more needs a recognized reason.

The Fifth Circuit Uses an “Unusual Circumstances” Test

Medina County Environmental Action Association v. Surface Transportation Board is particularly important for DOL retirement litigation in Texas because it states the Fifth Circuit's approach directly.^[7]

The court said supplementation is not allowed unless the moving party demonstrates:

unusual circumstances justifying a departure

from the general presumption that review is limited to the agency-compiled record.^[7]

Medina identified three circumstances in which supplementation may be permitted:

1. the agency deliberately or negligently excluded documents that may have been adverse to its decision
2. background information is needed to determine whether the agency considered all relevant factors
3. the agency failed to explain its action sufficiently for judicial review.^[7]

The word:

may

matters.

These are not automatic admission rules.

Medina Does Not Mean Every Adverse Document Belongs in the Case

The petitioner in Medina sought to add documents about environmental effects at another location.^[7]

The court examined what the materials actually added.

It concluded that they did not contain information materially adverse to the challenged decision or identify additional factors the agencies had failed to consider.^[7]

The supplementation motion was denied.

That holding exposes the weakness in this argument:

“The document cuts against the agency, therefore the court must add it.”

The material has to matter to the challenged agency decision under the governing standard.

Agency Possession Is Not Enough

Medina also involved an argument that certain materials were in an agency's possession.^[7]

That alone did not resolve whether they belonged in the record.

This distinction is essential for DOL.

A federal department can possess enormous amounts of information across:

• EBSA
• OSHA
• BLS
• OALJ
• Office of the Solicitor
• other components.

The fact that DOL as an institution possesses a document does not prove it was part of the decisionmaking process for a specific 401(k) rule.

A record motion should identify the connection.

For example:

“EBSA's Regulatory Impact Analysis cites this BLS dataset by name.”

is much stronger than:

“BLS had data that would have been relevant.”

Background Information Is Not a Free Pass

Medina recognizes that background information can sometimes be needed to determine whether an agency considered relevant factors.^[7]

That exception should not be converted into:

“Anything that helps the judge understand the industry is admissible.”

There is a difference between material needed to make record review intelligible and material offered to prove that the agency reached the wrong factual conclusion.

Suppose a case uses highly technical actuarial terminology.

A court may need limited explanatory context to understand:

• what a mortality table is
• how a rollover cost model works
• what a particular accounting term means.

That is different from allowing a new expert to re-run DOL's model using a different methodology and asking the court to choose the better model.

The second request moves toward merits factfinding.

“Agency Failed to Explain” Can Point Toward Remand, Not Evidence

Medina's third category involves agency explanation so inadequate that review is frustrated.^[7]

That category has to be read with Camp and Florida Power & Light.^[3][4]

If the problem is:

DOL never explained why it chose threshold X

the solution is not automatically:

let the challenger prove threshold Y in court.

The better route may be:

• agency clarification
• remand
• vacatur plus remand, depending on the merits and remedy analysis.

The reviewing court should resist turning an explanation failure into a new administrative trial.

The D.C. Circuit Also Treats Extra-Record Review as Exceptional

Theodore Roosevelt Conservation Partnership v. Salazar states the D.C. Circuit principle clearly.^[8]

APA review is limited to the administrative record except in unusual circumstances, including a strong showing of bad faith or improper behavior or a record so bare that it prevents effective judicial review.^[8]

The court described resort to extra-record information as:

the exception, not the rule.^[8]

That language is useful beyond environmental litigation.

It forces a party to explain the defect in ordinary review.

The inquiry is not:

Would this evidence help?

Almost all favorable evidence would help.

The inquiry is:

Why is ordinary review legally inadequate without it?

Cape Cod Hospital Shows What Record Correction Looks Like

Cape Cod Hospital v. Sebelius is a cleaner example of a missing record item.^[9]

Hospitals challenged Medicare rules.

Their consultant had delivered a comment letter to the responsible agency division during the rulemaking period.

The agency accepted the comment but failed to include or address it in the relevant rulemaking record.

The D.C. Circuit upheld supplementation of the record with that comment under the unusual facts.^[9]

Why is that different from a new expert report?

Because the comment existed during the rulemaking.

It was submitted to the agency through the rulemaking process.

The dispute was whether the historical record accurately reflected what the agency received.

That is fundamentally different from evidence created after final agency action.

Worked Example: DOL Accepts a Comment but Omits It

DOL proposes a 401(k) disclosure rule.

A recordkeeper timely submits a 60-page comment with:

• participant testing
• call-center data
• readability results.

DOL staff accept the filing.

The final rule never mentions the comment.

The filed administrative-record index omits it.

The first question is not whether a court should admit new evidence.

It is whether the agency record is incomplete.

Cape Cod shows why procedural receipt can matter.^[9]

A properly submitted comment cannot be converted into nonexistent evidence merely because the agency's record assembly later omitted it.

Worked Example: The Comment Was Never Submitted

Change one fact.

The recordkeeper prepared the 60-page analysis but never sent it to DOL.

After losing in rulemaking, the company attaches it to the complaint.

Now the argument is different.

The analysis may show:

DOL's assumption was factually wrong.

But it does not show:

DOL ignored this submitted evidence.

The agency never had it.

The party needs a legitimate extra-record basis before asking the court to use the analysis to judge the historical agency action.

Otherwise, the litigation would reward withholding evidence during rulemaking and introducing it only after the agency acts.

Oceana Adds an Important Deliberative-Process Limit

Oceana, Inc. v. Ross addresses another recurring record fight.^[10]

Under D.C. Circuit law, the court held that predecisional and deliberative documents are not part of the administrative record merely because they existed during agency decisionmaking, absent the special circumstances recognized by the court.^[10]

The court also rejected a requirement that the agency list all such deliberative materials on a privilege log as if they had first been part of the record and then withheld.^[10]

This matters for DOL rule litigation involving demands for:

• drafts
• internal policy recommendations
• preliminary economic estimates
• staff debates
• predecisional legal views.

The D.C. Circuit does not treat those materials as ordinary record content.

Oceana Should Not Be Universalized

The danger is replacing one overstatement with another.

Oceana is important D.C. Circuit authority.^[10]

It is not a Supreme Court decision defining administrative-record content for every federal court.

Record-completeness and privilege doctrine can differ across jurisdictions and factual settings.

A national article should therefore say:

“Under D.C. Circuit law...”

not:

“Federal law always excludes every deliberative document from every administrative record.”

Venue matters.

So does the exact claim.

Extra-Record Evidence and Deliberative-Process Privilege Are Not the Same Problem

Suppose a challenger seeks an internal EBSA draft memorandum.

Two distinct questions can arise.

Record-content question

Was this kind of predecisional material part of the administrative record under controlling circuit law?

Privilege question

Even if relevant to a broader discovery inquiry, is the material protected by deliberative-process privilege or another privilege?

Those questions can overlap.

They should not be merged.

A party can lose because the document is outside the administrative record before the court ever reaches privilege.

Or a court can conclude that a special inquiry is justified but still require privilege analysis.

Section 706(2)(F) De Novo Review Is a Separate Narrow Route

The APA itself contains a de novo review provision in Section 706(2)(F).^[1]

That language is sometimes cited as though Congress gave courts a broad power to take new evidence whenever agency facts are disputed.

Overton Park rejected that reading.^[2]

The Supreme Court described de novo review as available only in two narrow circumstances:

1. when the action is adjudicatory in nature and agency factfinding procedures are inadequate
2. when issues not before the agency arise in a proceeding to enforce nonadjudicatory agency action.^[2]

That is not the ordinary posture of a facial challenge to a DOL notice-and-comment retirement rule.

De Novo Review Is Not the Same as an Extra-Record Exception

These concepts answer different questions.

Extra-record evidence

The ordinary APA standard still applies, but the court is asked to consider material beyond the usual agency record under a recognized exception.

Section 706(2)(F) de novo review

The statute itself authorizes independent judicial fact review in narrowly defined circumstances.

A motion should not say:

“Extra-record evidence is allowed because the APA permits de novo review.”

unless the Section 706(2)(F) conditions actually fit the case.

For most DOL rule challenges, they will not.

A 401(k) Rule Challenge Is Usually Not a De Novo Trial

Notice-and-comment rulemaking is generally reviewed under Section 706's ordinary legal and arbitrary-and-capricious standards, not as a fresh trial of retirement policy.

That means a district judge ordinarily does not hear competing experts and decide:

• which fee estimate is best
• which participant survey is most credible
• which rollover model produces the right number
• which compliance system is most practical.

The court asks whether DOL acted within legal authority and whether the Department's own decisionmaking can survive the applicable APA review.

That is a narrower role.

Extra-Record Evidence Cannot Cure a Chenery Defect

Suppose DOL's final rule relies on:

Rationale A.

During litigation, government counsel finds a record document that supports:

Rationale B.

The government argues that B proves the rule was sensible.

Even if the document was in the administrative record, that does not necessarily solve the problem.

INV-229 explains why.

Chenery asks whether DOL itself adopted the rationale that supposedly sustains the action.^[12]

Extra-record doctrine asks what material the court may consider.

A court should not confuse:

evidence existed

with:

agency adopted this reason.

The doctrines intersect.

They do not merge.

New Evidence Cannot Become a Retroactive Agency Rationale

The same problem is even clearer with genuinely new material.

Suppose DOL never quantified a claimed participant harm.

After suit begins, the Department commissions a new study showing:

$8 billion in annual harm.

That study may support a future rulemaking or new agency action.

It cannot automatically become the contemporaneous basis for the old rule.

The historical agency decision is already fixed.

New evidence can inform:

• new agency action
• remand proceedings
• perhaps some remedial issue where legally appropriate.

It cannot rewrite the past.

Extra-Record Evidence and Harmless Error Are Different

INV-228 covers prejudicial error.

The distinction here is simple.

Extra-record question

May the court consider this material?

Harmless-error question

Assuming a legal error occurred, did the error matter enough under the governing prejudice rule?

Evidence admitted for one purpose can become relevant to prejudice.

But admissibility does not answer prejudice automatically.

Likewise, a highly prejudicial procedural defect does not automatically authorize unlimited extra-record discovery.

The sequencing matters.

Preliminary-Injunction Evidence Creates a Separate Complication

DOL rule challenges often begin with emergency relief.

At the preliminary-injunction stage, parties may file declarations addressing:

• implementation cost
• operational burden
• timing
• irreparable harm.

Those declarations can be proper for the equitable stay or injunction analysis.

That does not necessarily make them part of the administrative record for the APA merits.

One document can be relevant to:

irreparable harm

without being evidence the court may use to decide:

whether DOL's original rulemaking was arbitrary and capricious.

A litigation database should label the purpose.

Otherwise, preliminary-relief evidence can silently migrate into merits analysis.

Worked Example: Implementation Declaration

A large recordkeeper submits a declaration stating that compliance will cost:

$25 million before the rule takes effect.

The declaration was created after final agency action.

It may support:

• standing
• irreparable harm
• balance-of-equities analysis.

It does not automatically prove that DOL had the same information when it finalized the rule.

If the merits claim is:

“DOL ignored $25 million in implementation cost evidence”

the record must show what DOL actually received or should have addressed at the time.

Post-rule declaration and rulemaking evidence are different categories.

Worked Example: New Evidence Reveals a Serious Real-World Problem

Assume a DOL rule has been operating for one year.

New market data show the rule causes a harmful effect that nobody predicted.

That fact can be extremely important as policy.

It can support:

• petition for new rulemaking
• request for amendment
• new agency study
• legislative action
• challenge to later agency action, depending on circumstances.

But it does not automatically prove the original rule was arbitrary based on information the agency never had.

APA review is not simply hindsight review.

A later fact can matter greatly without belonging to the original record.

A 2026 Fifth Circuit-Area Decision Shows Medina Is Still Being Applied

A 2026 Southern District of Mississippi decision in National Council of Negro Women v. Duffy applied the Fifth Circuit's Medina County framework when parties sought extra-record evidence.^[11]

The court repeated the principle that the administrative record is the focal point and that a departure requires unusual circumstances.^[11]

The value of the case is modest but current.

It shows that Medina is not merely an old environmental-law citation that disappeared from Fifth Circuit-area practice.

Its record-rule framework remains active.

The case should not be described as a DOL or ERISA holding.

It is a current procedural illustration.

Circuit Doctrine Can Change the Motion

Consider the same internal draft DOL memorandum in two cases.

Case A is filed in the D.C. Circuit.

Case B is filed elsewhere.

The document may receive different treatment depending on:

• circuit record doctrine
• deliberative-process rules
• privilege
• whether bad faith is alleged and supported
• whether the document was actually relied upon
• whether the request is completion or discovery.

That makes venue legally important before any record motion is drafted.

A generic national checklist of:

“eight exceptions to the record rule”

can be misleading if it ignores controlling circuit law.

Older Exception Lists Should Be Used Carefully

Administrative-law research frequently surfaces long lists of circumstances in which courts have considered material outside the record.

Those lists can be useful research leads.

They are dangerous as automatic rules.

Later cases often narrow, restate or reclassify them.

For a DOL 401(k) challenge, the better method is:

• start with Supreme Court baseline
• identify controlling circuit precedent
• classify the requested material
• state the purpose for which it is offered
• identify the exact exception or completion theory
• explain why ordinary record review fails without it.

That is more defensible than importing a generic list from another circuit.

The Purpose of the Evidence Matters

The same document can be offered for different purposes.

Suppose an academic study was published after DOL acted.

A party might offer it to show:

Merits fact

DOL's economic conclusion was wrong.

That is a direct extra-record merits use.

Technical background

This is what the statistical term in the record means.

Different purpose.

Remedy

Immediate vacatur would disrupt current plan operations.

Different issue again.

Standing or irreparable harm

The rule changes current market conduct.

Different procedural stage.

Courts can treat those uses differently.

A motion should state the purpose expressly.

Evidence “About” the Record Is Not Always Evidence “Against” the Agency

A limited extra-record source can sometimes help the court understand what the administrative record already contains.

That does not mean the court may use the source as a competing merits record.

A technical glossary, for example, may make an actuarial model understandable.

It should not silently become new evidence proving that DOL selected the wrong actuarial assumption.

This is why background-information exceptions require discipline.

The court's comprehension function is not a back door to de novo factfinding.

Bad Faith Requires More Than Aggressive Policy

Agency rulemaking can be political in the ordinary sense that elected administrations choose policy priorities.

That does not equal legal bad faith.

A change in administration can produce:

• new priorities
• different balancing
• changed enforcement preferences
• rescission of prior rules.

INV-224 addresses judicial estoppel.

INV-229 addresses changed rationales and Chenery.

Extra-record mental-process inquiry should not be used merely because a new administration prefers a different retirement policy.

The record must present a stronger reason to suspect improper behavior.

What Should a Record Motion Actually Show?

A strong motion does not begin with twenty exhibits.

It begins with a classification.

For each proposed item, identify:

That structure prevents doctrinal drift.

Extra-Record Evidence Should Not Become a Merits Shortcut

Suppose a challenger has a weak arbitrary-and-capricious claim on the existing record.

It discovers a persuasive new expert willing to say DOL's analysis was poor.

The temptation is to turn the lawsuit into:

expert A versus DOL.

That is not ordinary APA review.

The proper question remains whether DOL's contemporaneous decisionmaking was lawful on the record and under the governing standard.

A brilliant new expert cannot change the review framework.

The Agency Also Faces the Record Rule

The constraint is not one-sided.

DOL cannot ordinarily defend an action by flooding the court with new factual support that the Department never used.

If the government needs:

• a new economic model
• new participant data
• a new policy rationale
• new factual findings

to sustain the action, the stronger route may be new agency work after remand.

That is one of the deeper purposes of record review.

It prevents both sides from converting judicial review into a replacement administrative process.

Extra-Record Evidence Review Checklist

Before saying a court can or cannot consider material beyond DOL's record, verify:

1. What agency action is being reviewed?

Rule, exemption, advisory opinion, order or another action?

2. What stage is the case in?

• merits
• preliminary injunction
• standing dispute
• remedy
• appellate review?

3. What is the proposed material?

Be specific.

4. When was it created?

Before or after DOL acted?

5. Did DOL have it?

Receipt, citation, reliance and mere departmental possession are not interchangeable.

6. Is the filed record allegedly incomplete?

If yes, analyze completion first.

7. Is the party asking the court to go outside the historical record?

If yes, identify the controlling exception.

8. What circuit governs?

Medina, Theodore Roosevelt and Oceana illustrate why this matters.

9. Is the request actually for discovery?

If so, what doctrine permits discovery?

10. Is a decisionmaker's mental process targeted?

If yes, identify the exceptional showing supporting that inquiry.

11. Is clarification enough?

Camp may make a narrower remedy appropriate.

12. Would remand solve the problem?

Florida Power & Light may make agency reconsideration preferable to judicial factfinding.

13. Does the evidence create a Chenery issue?

A new reason cannot simply replace DOL's old reason.

14. What will the evidence be used to prove?

• merits
• background
• standing
• harm
• remedy
• bad faith
• record completeness?

15. What happens if the court admits it?

Admission alone does not decide prejudice or remedy.

Practical Decision Matrix

Fast Answers

What is extra-record evidence?

Material outside the ordinary administrative record that a party asks a court to consider while reviewing agency action.

Is extra-record evidence normally allowed in an APA case?

No. Ordinary review is based on the administrative record.^[1][2][3]

Is record completion the same thing?

No. Completion argues that material already connected to the agency decision was omitted from the filed record.

What did Camp v. Pitts establish?

The focal point for review is the administrative record already in existence, not a new record created in court.^[3]

What if the existing record is inadequate?

Clarification or remand may be appropriate. Florida Power & Light says remand is ordinarily the route when the record does not permit judicial evaluation.^[4]

Can a challenger routinely depose DOL officials?

No. Inquiry into decisionmakers' mental processes is exceptional and associated with a strong showing of bad faith or improper behavior.^[2][5]

Did Department of Commerce make extra-record discovery routine?

No. The Supreme Court said the district court's initial extra-record discovery order was premature because completing the record was the warranted first step.^[5]

What does Medina County require in the Fifth Circuit?

Unusual circumstances justifying departure from the presumption of record-only review.^[7]

What three categories did Medina identify?

Potentially adverse documents deliberately or negligently excluded, necessary background information, and an agency explanation so inadequate that judicial review is frustrated.^[7]

Does satisfying a Medina category guarantee admission?

No. Medina says supplementation may be permitted, and the court denied the requested supplementation on the facts before it.^[7]

Can a new report created after DOL acts complete the record?

Ordinarily no. It did not exist in the historical agency record.

What did Cape Cod Hospital show?

A properly submitted comment accepted by the agency but omitted from the rulemaking record can justify adding that historical material to the record.^[9]

What did Oceana hold?

Under D.C. Circuit law, predecisional and deliberative documents are not part of the administrative record merely because they existed during agency decisionmaking, absent special circumstances.^[10]

Does Oceana control every circuit?

No.

Does Section 706 allow de novo review?

Yes, but Section 706(2)(F) is narrowly limited. Overton Park identified two specific circumstances rather than a general right to retry agency facts.^[1][2]

Can new evidence fix a missing DOL rationale?

Not simply by being persuasive. Chenery generally requires agency action to stand or fall on the grounds the agency itself invoked.^[12]

Can extra-record evidence prove harmlessness or prejudice?

It may be relevant if properly considered for that purpose, but admissibility and prejudice are separate questions.

What is the safest one-sentence rule?

Before asking a court to consider material outside a DOL administrative record, classify the request as completion, extra-record evidence, clarification, discovery or de novo review; identify controlling circuit law; show why ordinary record review is inadequate; and keep the evidence's permitted purpose separate from the ultimate merits and remedy.

Sources & References

1. U.S. House of Representatives — Office of the Law Revision Counsel: 5 U.S.C. §706 — Scope of Review — https://uscode.house.gov/view.xhtml?edition=prelim&num=0&req=granuleid%3AUSC-prelim-title5-section706
2. Supreme Court / Legal Information Institute: Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) — https://www.law.cornell.edu/supremecourt/text/401/402
3. Supreme Court / Legal Information Institute: Camp v. Pitts, 411 U.S. 138 (1973) — https://www.law.cornell.edu/supremecourt/text/411/138
4. Supreme Court / Legal Information Institute: Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) — https://www.law.cornell.edu/supremecourt/text/470/729
5. Supreme Court / Legal Information Institute: Department of Commerce v. New York, 588 U.S. 752 (2019) — https://www.law.cornell.edu/supremecourt/text/18-966
6. Supreme Court / Legal Information Institute: Biden v. Texas, 597 U.S. 785 (2022) — https://www.law.cornell.edu/supremecourt/text/21-954
7. U.S. Court of Appeals for the Fifth Circuit: Medina County Environmental Action Association v. Surface Transportation Board, 602 F.3d 687 (5th Cir. 2010) — https://www.ca5.uscourts.gov/opinions/pub/09/09-60108-CV0.wpd.pdf
8. U.S. Court of Appeals for the D.C. Circuit / FindLaw: Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) — https://caselaw.findlaw.com/court/us-dc-circuit/1532789.html
9. U.S. Court of Appeals for the D.C. Circuit / Justia: Cape Cod Hospital v. Sebelius, 630 F.3d 203 (D.C. Cir. 2011) — https://law.justia.com/cases/federal/appellate-courts/cadc/09-5447/09-5447-1287996-2011-02-28.html
10. U.S. Court of Appeals for the D.C. Circuit / OpenJurist: Oceana, Inc. v. Ross, 920 F.3d 855 (D.C. Cir. 2019) — https://openjurist.org/920/f3d/855/oceana-inc-v-ross
11. U.S. District Court for the Southern District of Mississippi / Justia: National Council of Negro Women v. Duffy, No. 1:22-cv-314, Order on Extra-Record Evidence (2026) — https://law.justia.com/cases/federal/district-courts/mississippi/mssdce/1%3A2022cv00314/116815/77/
12. Supreme Court / Legal Information Institute: SEC v. Chenery Corp., 318 U.S. 80 (1943) — https://www.law.cornell.edu/supremecourt/text/318/80

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