RE: BROAD DISCOVERY DENIED IN ENERGY STANDARDS CASE
 A federal magistrate judge has, for now, denied an effort by the Plaintiffs to obtain wide-ranging discovery from the U.S. Department of Energy (DOE) in the case that was brought in the United States District Court for the Western District of Texas to invalidate DOE’s impending high-cost manufactured housing energy standards rule.

In an order and opinion entered on June 17, 2024 (copy attached), Magistrate Judge Susan Hightower ruled that in a case brought under the Administrative Procedure Act (APA), such as the DOE challenge, discovery (and judicial review) is typically limited to the “administrative record” compiled by the agency, absent “unusual circumstances.” In this case, however, the court ruled that insofar as the administrative record has yet to be provided by DOE to either the court or the Plaintiffs, it would be impossible to determine, at this time, if such circumstances, warranting additional discovery, outside of the agency administrative record, exist.

 Accordingly, the court denied such additional discovery, at the present time, while noting that the matter could be addressed again at a later point in the proceedings.

As a result, the nature of the materials included by DOE in the administrative record will be crucial. Given the track record of improper communications by DOE, collusion with special interests and other significant rulemaking irregularities and abuses documented many times by MHARR, it is highly unlikely that any “record” compiled by DOE will be either accurate or complete. As a result, it will be essential that the issue of supplemental discovery be raised once again by the Plaintiffs.

 MHARR will continue to closely monitor this litigation for further developments.

cc: Other Interested HUD Code Manufactured Housing Industry Members

 Manufactured Housing Association for Regulatory Reform (MHARR)
1331 Pennsylvania Ave N.W., Suite 512
Washington D.C. 20004
Phone: 202/783-4087
Fax: 202/783-4075