COMMISSIONS, AND OFFICERS (INCLUDING SOCIAL SECURITY CASES)
(a) Commencement of Action.
(1) Review of final agency action. Review of an order, decision, rulemaking,
or other final action taken or withheld by an administrative agency under an agency’s
establishing statute or the Administrative Procedure Act shall be commenced by filing a properly
denominated complaint or petition for relief as specified by the statute under which relief is
requested. The complaint or petition for relief shall include:
(A) identification of the final agency action or part thereof being
challenged;
(B) factual allegations relating to the grounds on which the agency
action is being challenged; and
(C) the legal basis for subject matter jurisdiction for plaintiff/
petitioner entitlement to relief.
If two or more persons are entitled to seek judicial review of the same order and their
interests are such as to make joinder proper, they may file a joint pleading. As used in this rule,
the term “agency” includes any federal agency, board, commission, or officer.
(2) Social Security Cases.
(A) Review of a decision of the Commissioner of Social Security shall
be commenced by filing a “Complaint and Petition for Review” identifying the specific order or
decision for which review is sought and the date that order or decision was issued;
(B) In responding to the complaint, the Commissioner shall file a
certified copy of the transcript of the relevant administrative record and any affirmative
defense, which if not then filed, shall be waived.
(3) Service of Process. Service of process shall be in the manner provided by
Fed. R. Civ. P. 4, unless a different manner of service is prescribed by an applicable statute.
(4) The responding party need not file an answer to the complaint/petition.
(5) If the parties disagree over the applicability of this rule to their case, or if
a case involves unusually complicated or out-of-the-ordinary claims warranting modifications to
the requirements of this rule, a party shall request as promptly as possible after service of
process, and no later than 30 days before the deadline for filing the record under subsection (b)
of this rule, an initial scheduling conference with the Court for resolution of such issues.
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(b) Administrative Record.
(1) Composition of the record. Unless the applicable statute provides
otherwise, the record in proceedings to review agency action is comprised of:
(A) the final agency action being challenged;
(B) all documents and materials directly or indirectly considered by
the agency and/or agency decision-makers; and
(C) if existing, the pleadings, evidence, and proceedings before the
agency.
(2) Filing of the record. Unless a different time is provided by statute or
otherwise ordered by the Court, the agency shall file the record with the Clerk of Court within
ninety (90) days of proper service of the complaint or petition for review (sixty (60) days for
Social Security case). The record shall be consecutively numbered and contain an index
including the date and description of the document(s). To the extent practicable, the record
shall be provided to the Court in text searchable format and the agency shall provide a log
describing any document(s) withheld under a claim of privilege, including a claim that the
document(s) reflect the deliberative process of the agency.
(3) Supplementation of the record. Supplementation of the record will be
allowed only upon leave of Court. Any request for completion of the record, or for
consideration of extra-record evidence, must be filed within fourteen (14) days after the record
was filed. Local Rule 7.1(b), pertaining to briefing of non-dispositive motions, shall apply. Extra-
record evidence will be considered only in extremely limited circumstances.
(c) Briefing Schedule.
Unless otherwise ordered by the Court, the party seeking review must serve and file an
opening brief within forty-five (45) days after the date on which the record is filed. If a motion is
filed under (b)(3) of this rule, plaintiff/petitioner must serve and file an opening brief within
forty-five (45) days after the date either (1) a supplemental record is filed; or (2) the motion is
denied. The responding party must serve and file a brief within thirty (30) days after service of
the opening brief. The plaintiff/petitioner may serve and file a reply brief within fourteen (14)
days after service of the responsive brief. Unless otherwise ordered by the Court, briefs shall be
filed in accordance with Fed. R. App. P. 32(a)(4) through (a)(7). The Court may render a decision
upon the briefs and the record without oral argument unless the Court grants a request for oral
argument.
(d) Amicus Briefs.
Unless otherwise ordered by the Court, motions for leave to file and the filing of amicus
briefs shall be governed by Fed. R. App. P. 29.
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(e) Motions to Intervene.
Unless a statute provides another method, intervention of parties shall be governed by
Fed. R. Civ. P. 24. If there is more than one intervening party, joint briefing shall be governed by
10th Cir. R. 31.3.
(f) Injunctions and Restraining Orders.
Requests for injunctive relief in proceedings under this rule shall be governed by Fed. R.
Civ. P. 65 and 65.1.
(g) Motions for Summary Judgment.
Motions for summary judgment shall not be filed.
(h) Serving and Filing Pleadings and Other Papers.
The parties to any proceedings governed by this rule shall give the same notice of the
filing of pleadings, records and other documents as is required by Fed. R. Civ. P. 5.
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