Challenges to Federal Agency Action
| Publication year | 2009 |
| Pages | 83 |
2009, October, Pg. 83. Challenges to Federal Agency Action
October 2009
Vol. 38, No. 10 [Page 83]
About the Author
Terry Fox is an attorney with the Civil Division of the Office of the U.S. Attorney in Denver. Her work involves representing the United States, federal agencies, and individual federal employees engaged in defensive civil litigation-(303) 454-0158, terry.fox@usdoj.gov. The analysis provided in this article is that of the author and not that of the U.S. Department of Justice (DOJ), the U.S. Attorney's Office for the District of Colorado, or the client agencies of the DOJ or the U.S. Attorney's Office.
Litigation brought under the state or federal Administrative Procedure Act (APA) differs from traditional litigation in many ways. This article presents information to assist lawyers in suing-or defending-APA cases.
Challenges to federal agency decisions involve final agency action(fn1) and most often are pursued under the federal Administrative Procedure Act (APA).(fn2) The type of decisions challenged are almost limitless. Some examples are: (1) the denial of a federal license or permit; (2) changes to grazing activities on federal lands; (3) the granting or withdrawal of environmental protection to various organisms (fish, mammals, birds, and so on); (4) the withdrawal or modification of federal government benefits; and (5) the denial of immigration benefits.
This article describes the key elements of the APA process and provides insight into how to effectively posture the case to secure effective judicial review. The discussion focuses on the court challenge-the appeal-of an agency's action. The article assumes that counsel will have input in the process leading to the agency's decision. If the lawyer has not been involved in the administrative phase of the case, his or her authority to effectively challenge the federal agency's decision may be severely compromised-or even barred.(fn3)
The Statutory Framework
A critical element of the challenge to the agency's decision is the applicable statutory framework. This framework governs the challenge and may supply the review standard. For example, the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) provides that "a person adversely affected or aggrieved by a final decision of the Secretary under [Part E]" may seek review of that final decision in the appropriate U.S. District Court within sixty days of the date that the final decision was issued.(fn4) The standard of review contained in the EEOICPA is more deferential to the agency than the APA's standard of review of "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law."(fn5) The EEOICPA's review standard requires a plaintiff to prove that a final decision was both "arbitrary and capricious" before a court may modify it or set it aside.(fn6) If the statute does not specify a standard of review, the APA's "arbitrary and capricious" review standard applies.(fn7)
Most federal statutes, including those that rely on the APA's review provisions, require that the challenging party fully participate in the administrative process and exhaust all available remedies.(fn8) The rationale for the exhaustion requirement is to give the agency fair notice and an opportunity to reconsider whether it has erred and to fix that error without court intervention.(fn9) Of course, the agency may disagree that it has erred and may stand by its decision. In this situation-and provided the aggrieved party has taken advantage of the available administrative remedies-the aggrieved party may seek judicial review of the agency's decision.
The Administrative Review Process
A significant difference between traditional civil cases and a case brought pursuant to the state or federal APA is that there is no discovery in APA cases. Rather, the challenge, and the decision, is based on the administrative record. In this sense, an APA case is more akin to an appeal than to standard litigation. Additionally, the APA litigant is not entitled to have a jury decide his or her case. The judge decides the APA challenge. The judge can hold a hearing on the APA challenge, but is not required to do so. It is largely at the judge's discretion whether to schedule argument on an APA challenge.(fn10)
In APA cases, the court often requires the parties to attend a conference to set a briefing schedule for the case. Before the scheduling conference, the parties must meet and confer about their proposed briefing schedule.(fn11) At this time, the parties can discuss when the agency's litigation counsel anticipates filing the administrative record. If the record is lengthy, the parties might negotiate additional time to allow litigation counsel to review the proposed administrative record and remove and log any privileged documents contained in the proposed administrative record.(fn12)
Contents of the Administrative Record
The administrative record should consist of everything that was before the agency pertaining to the merits of its decision.(fn13) A properly compiled record is the exclusive basis for the court's judicial review,(fn14) and evidence outside the record may not be cited.(fn15) If the record is inadequate to support the agency action, the proper remedy is a remand for further proceedings. It is not proper to generate a new record in court.(fn16) Similarly, if the plaintiff successfully contends that the agency decision is flawed because it failed to take into account evidence erroneously excluded from the record, the proper remedy is to remand the matter to the agency to reconsider in light of the erroneously excluded evidence, not for the reviewing court to reconsider the matter itself.(fn17)
To avoid potentially protracted battles concerning the contents of the administrative record, the agency's litigation counsel should consider providing the opposing party's counsel (or the party, if it is proceeding pro se) an advance copy of the proposed record, or at least an index of the proposed record. If the challenger finds that key documents appear to be missing, the parties can confer about the contents of the record, including whether those missing documents should be made part of the record.
Because the record must contain all materials on which the agency action was based, courts have required the supplementation of a certified record when the agency appears to have relied on documents or materials...
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