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NRDC, Inc. v. Herrington , 768 F.2d 1355
(D.C. Cir. 1985)
DOE has the power to set a standard for appliance
efficiency that preempts stricter state standards
DOE has a rulemaking for a non-rule, i.e., it
publishes the support for its conclusion that there
should not be a rule.
NRDC challenges the explanation of the model it
used and the assumption that there would be no
meaningful increase in energy use by preemption
CA standards.
Were DOE’s actions arbitrary and capricious?
American Dental Assn. v. Martin , 984 F.2d
823 (7th Cir. 1993)
OSHA bloodborne pathogens rule
Requires universal precautions in all health care
workplaces
These include gloves, sharps management, eye
protection, and other controls to reduce exposure
to blood
Dentists charge that the agency did not show specific
risks in dentistry and thus the rule was arbitrary and
capricious
Were they right?
Challenging Agency Action - Review
First, you have to show it is a final agency action
Rules Orders Everything else
Then you argue about standard of review
The more agency process, the more deference Unless the statute or congressional intent conflicts with the agency action or interpretation
De Novo Review Under the APA
Section 706(2)(F) provides for setting aside
agency action found to be “unwarranted by the
facts to the extent that the facts are subject to trial
de novo by the reviewing court.”
Overton Park - such de novo review is authorized
when the action is adjudicatory in nature and the
agency factfinding procedures are inadequate
Absent bad faith, the court never finds this
In real life, you only get de novo rule by statute
Judicial Remedies for Improper Rules
Remand but leave the rule in force
Cannot do this for unconstitutional rules or rules that exceed agency authority
What is the impact of staying the rule?
Pulling a diabetes drug off the market?
Remand and stay the rule
Will wild animals escape? Will there be risks? Is the court defeating agency policy making?
Relying on Agency Advice - Equitable
Estoppel
You cannot get money damages - no appropriations
Not under the tort claims act
It is a defense to criminal claims
Can be a defense to civil enforcement fines
How did you get the advice? IRS letter ruling v. advice over the phone?
Relying on an agency mistake that you know about or failure to enforce a law does not work
Non-Acquiesce
The government can relitigate the same facts (different parties) in different circuits to get better results Or to get a split to get United States Supreme Court review Intra-circuit non-acquiesce is more controversial Agency loses in the circuit in a specific case, but continues to apply the same law to other parties Non-acquiesce only applies to adjudications If a rule is found invalid, it is invalid everywhere Why?
