In Re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed October 6, 1998

No. 97-5228

In Re: Subpoena Duces Tecum Served on the Office of the
Comptroller of the Currency

Consolidated with
No. 97-5229

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Appeal from the United States District Court
for the District of Columbia
(94ms00329)
(95ms00006)

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On Petition for Rehearing

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Before: Edwards, Chief Judge, Silberman and Sentelle,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: The government's petition for
rehearing raises one point that calls for a response. We held
that the government's deliberative process privilege does not

apply when a cause of action is directed at the government's
intent. We explained that the privilege had developed in and
applies to circumstances where the government decisionmak-
ing process is "collateral" to a plaintiff's claim. The govern-
ment suggests that the term "collateral" is imprecise and that
the deliberative process privilege has been employed in cir-
cumstances where the government's decisionmaking process
could not be thought collateral to the cause of action. Ac-
cording to the government, our reasoning could be interpret-
ed as suggesting that the deliberate process privilege would
not apply in a case where the government action is challenged
as arbitrary and capricious under the APA because, if an
illegal motive were shown, then the government's action
would necessarily be arbitrary and capricious.

When a party challenges agency action as arbitrary and
capricious the reasonableness of the agency's action is judged
in accordance with its stated reasons. Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). Agency
deliberations not part of the record are deemed immaterial.
See Camp v. Pitts, 411 U.S. 138 (1973); United States v.
Morgan, 313 U.S. 409 (1941). That is because the actual
subjective motivation of agency decisionmakers is immaterial
as a matter of law--unless there is a showing of bad faith or
improper behavior. See Saratoga Dev. Corp. v. United
States, 21 F.3d 445, 457-58 (D.C. Cir. 1994); Overton Park,
401 U.S. at 420. (Where there is no administrative record to
review, the party challenging the agency action may inquire
into the decisionmaking process in order to create such a
record, but it does not necessarily follow that the party can
also probe subjective motivations.)

Whether or not under those circumstances it is accurate to
refer to the agency's decisionmaking process as collateral, it
is clear that the ordinary APA cause of action does not
directly call into question the agency's subjective intent. And
our holding that the deliberative process privilege is unavail-
able is limited to those circumstances in which the cause of
action is directed at the agency's subjective motivation.