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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Delicate Technicalities of Judicial Review of Final Agency Action

Posted in Judicial Process, Judicial Review & Remedies

Several weeks ago, this blog alluded to a court of appeals criticism of its district court that focused on the nature of the remedy in judicial review of final agency action under the Administrative Procedure Act (APA): that the court enjoined a rule when it should have set the rule aside.  This criticism may seem hypertechnical – even verging on a return to the little loved, archaic Blackstonian common law forms of action – but it is not a unique issue.  Lawyers and courts often make similar small mistakes – including the use of preliminary injunctions and summary judgment for stays and judgment on the record.  All illustrate the rarity and complexity of judicial review of final agency action when contrasted with the general litigation before United States district courts.  All are technically wrong, but very common applications of the bench and bar’s normative practices.  “Return with us now to those thrilling days of yesteryear….”*

At times, presenting issues sequentially actually makes sense – and the technicalities of judicial review of final agency action may present one of those times.

Preliminary Injunctions & Stays:  Lawyers often inadvertently mislead a court at the very beginning of a case by demanding an injunction as remedy in their complaint and following up immediately with a motion for a preliminary injunction.  Lawyers and judges are accustomed to this oft-repeated maneuver and the complex recipe for a preliminary injunction in trial practice as recently canonized in Winter v. Natural Resources Defense Council:

A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.

Not quite so in judicial review of final agency action.  Here, they really mean an order “staying” the agency action pending review under the APA, 5 U.S.C. § 705, as was the case in Sierra Club v. Jackson, which also dealt with a stay under a specific statute.  A stay involves other complicated procedures not required for a preliminary injunction (e.g. often a stay request to the agency), but temporarily holds the parties in place until the court resolves the case.  While the standards for a stay of a final rule are the same as for a preliminary injunction, the process confusion at the very beginning of litigation sets in motion potential further missteps.

Summary Judgment & Judgment on the Record:  A second delicate technicality lies in the manner in which judicial review is resolved in the district courts.  Lawyers routinely seek summary judgment under Federal Rule of Civil Procedure 56 when facts are not disputed.  Summary judgment is appropriate, under the familiar formulation, when the pleadings, the disclosure and discovery material, and any affidavits show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

In judicial review of final administrative action, the facts lie in the administrative record certified by the agency (most of the time, unless a ground for dispute or supplementation is well plead).  While the mechanism for resolving a case is familiar under the summary judgment rule, the motion is correctly denominated as a “Motion for Judgment on the Record.”  This subtle difference does have meaning:  the motion effectively accepts the agency’s certified record as undisputed and raises only questions of law and application of law to that record.  The United States District Court for the District of Columbia, the district court most commonly faced with such cases, and some other courts even have local rules for this situation.

Setting Aside & Permanent Injunction:  The criticism that prompted the initial comment and this post comes from R.J. Reynolds Tobacco Company v. Food and Drug Administration, the case in which the United States Court of Appeals for the District of Columbia Circuit struck down the Food and Drug Administration (FDA)’s graphic cigarette warning label regulations.

The court of appeals pointed out that the district court’s permanent injunction did not square with the APA requirement, 5 U.S.C. § 706(2), that the court:

hold unlawful and set aside agency action, findings, and conclusions found to bed –

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law[.]

Citing a previous decision, the court of appeals reminded that a district court reviews an agency regulation as an appellate tribunal rather than a trial court, and a district court should vacate and remand unlawful actions.

Sidebar:  In R.J. Reynolds, the court (without comment) did not slow to apply any “balancing” of relative harm and program disruption when vacating procedural failures under Allied Signal v. NRC.  Balancing harm simply doesn’t apply to a remedy in substantive First Amendment cases – the regulations must be vacated.  Whether the APA permits the discretion embodied in the Allied Signal test is unresolved and debated.

A permanent injunction, however, provides relief in a more refined “as applied” analysis rather than the “setting aside” more facial approach.  Permanent injunctions do not bar the rule itself, but the enforcement of the rule against a particular person for a particular violation of the constitution or statute, as was the case in Newland v. Sebelius.  A rule itself is “set aside” not enjoined.

Cumulative Error:  One small error can cumulate in other errors.  Judicial review of final administrative action is as complex as any litigation – but very different from the pre-trial and trial process that make up the normal course for lawyers and judges.  Care should be taken, lest a small error become a major failure.

Opening voiceover from The Lone Ranger.