956 F.3d 634
D.C. Cir.2020Background
- EPA relies on ~22 scientific advisory committees; GSA regulations require agency heads to assure committee members conform to federal ethics and conflict-of-interest rules.
- OGE’s uniform standards permit agency-specific supplemental ethics rules but historically allowed EPA grant recipients to serve on advisory committees so long as they did not participate in matters that would specially affect their grants.
- In October 2017 EPA issued a one-page Directive (and short Memorandum) barring any non-governmental advisory-committee member who currently receives EPA grants from serving on EPA federal advisory committees.
- Three individual scientists (former grantees) and three organizations sued under the Administrative Procedure Act, alleging the Directive is unreviewable or, alternatively, arbitrary and capricious, contrary to law, and procedurally invalid for failing to use OGE’s supplemental-regulation process.
- The district court dismissed the complaint (holding the Directive unreviewable or lawful); the D.C. Circuit reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reviewability under APA §701(a)(2) | Directive is reviewable; GSA and OGE regulations supply "law to apply" | Directive is committed to agency discretion or lacks law to apply | Reviewable: GSA/OGE rules provide manageable standards, so §701(a)(2) does not bar review |
| Whether Directive is contrary to OGE uniform standards (substantive) | Directive impermissibly departs from OGE’s uniform ethics rules | EPA may adopt agency-specific appointment criteria; OGE allows supplemental rules | Rejection of this claim: OGE permits agencies to issue supplemental rules, so substantive conflict claim dismissed (problem is procedural, not substantive) |
| Arbitrary and capricious (change in policy) | EPA reversed long-standing policy without reasoned explanation or addressing prior OGE/EPA determinations allowing grantees to serve | Directive acknowledged a policy change and stated goals; no more required under Fox | Held for plaintiffs: Directive is arbitrary and capricious because it fails to address or explain prior policies and important reliance/interests in permitting grantees to serve |
| Procedural violation (failure to submit supplemental regulation to OGE) | Directive is a binding ethics-related rule and EPA failed to follow OGE’s supplemental-regulation process | Directive is only a discretionary appointment policy, not an ethics regulation; OGE disclaimer precludes enforcement-based challenge | Held for plaintiffs: Directive implicates OGE’s supplemental-regulation process and EPA’s failure to follow it is reviewable under the APA; OGE disclaimer does not bar APA challenges |
Key Cases Cited
- Heckler v. Chaney, 470 U.S. 821 (1985) (presumption that some agency actions are unreviewable)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (no law to apply bars review when no meaningful standard exists)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard; requirement to provide reasoned explanation)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (standards for reviewing agency changes in policy)
- Lincoln v. Vigil, 508 U.S. 182 (1993) (agency discretion and reviewability principles)
- Ball, Ball & Brosamer, Inc. v. Reich, 24 F.3d 1447 (D.C. Cir. 1994) (agencies cannot adopt regulations that erase APA reviewability absent clear congressional intent)
- Aid Ass'n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166 (D.C. Cir. 2003) (distinguishing non-reviewable internal documents from binding rules)
- Drake v. FAA, 291 F.3d 59 (D.C. Cir. 2002) (judicially manageable standards may be found in policies and regulations)
- Lone Mountain Processing, Inc. v. Secretary of Labor, 709 F.3d 1161 (D.C. Cir. 2013) (agency changing course must supply reasoned analysis)