Legal Memorandum: Record on Review

Issue: In a federal district court proceeding, if an issue is not raised at the underlying administrative hearing and is not contained in the administrative record, is the issue considered waived?

Area of Law: Administrative Law, Administrative Law & Regulation (Federal and State), Litigation & Procedure
Keywords: Administrative record; Limited to the record before the agency
Jurisdiction: Federal
Cited Cases: 395 F.3d 1019
Cited Statutes: None
Date: 01/01/2006

Review of an administrative agency’s action is limited to the record before the agency.  Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S. Ct. 1598, 1607, 84 L. Ed. 2d 643 (1985).  Review is of the entire record before the agency.  The court has the discretion to review those parts of the record not submitted to the court by the parties.  Jordan v. Clark, 847 F.2d 1368 (9th Cir. 1988).  The Ninth Circuit has made an exception to the strict limitation to the record.  A reviewing court may go outside the record, and consider additional matters, if it is necessary to determine whether an agency has considered all relevant factors and explained its decision, if the agency relied on documents not in the record, if it is necessary to do so in order to explain technical terms or complex subject matter, or if there is a showing of agency bad faith.  Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005).


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