Opinions on ACUS: The U.S. Court of Appeals for the D.C. Circuit

This post is the second in a series exploring how the federal judiciary has referenced the Administrative Conference and its body of work in judicial opinions.  The focus of this post is on the U.S. Court of Appeals for the D.C. CircuitOur first post in the series examined references to ACUS work in Supreme Court opinions.

The D.C. Circuit has primary jurisdiction over a variety of federal actions and is well-known for its administrative law jurisprudence.  The Conference has close connections with some of its esteemed jurists. Judge Brett Kavanaugh is currently the court’s Liaison Representative, Senior Judge Stephen F. Williams is a Senior Fellow and was its Liaison Representative from 1990 to 1995.  He is also a former Conference consultant.  Former D.C. Circuit Chief Judge Patricia Wald was an Administrative Conference Council Member from 2010 until 2012, and described her service as “among the most satisfactory parts of my public career.”

Twenty-one D.C. Circuit judges have authored thirty-six opinions citing Conference scholarship, including one each by then-Judges now-Justices Antonin Scalia and Ruth Bader Ginsburg.  More than thirty of these references were in the opinion for the court, although Conference works were also occasionally cited in concurrences or dissents.  Judges Harold Leventhal, Carl McGowan, and Patricia McGowan Wald mentioned Conference works in four or more opinions.  Judges Charles Fahy, A. Raymond Randolph, and Spottswood Robinson III discussed Conference findings in three opinions each. 

Three particularly well-known administrative law cases issued in the late 1970s and early 1980s—Home Box Office, Inc. v. FCC,[1] Sierra Club v. Costle,[2] and Association of Data Processing Service Organizations v. Board of Governors of the Federal Reserve System[3]—reference the Conference’s Recommendation 74-4, Preenforcement Judicial Review of Rules of General Applicability.  The consultant for that study was Professor Paul Verkuil, the Conference’s current Chairman.  The Conference Chairman at the May 1974 Plenary Session where Recommendation 74-4 was adopted was Antonin Scalia, who later cited the recommendation when he authored the D.C. Circuit’s opinion in Association of Data Processing.  A central concern of Verkuil’s research was defining the administrative materials that should be included in the “record” on review of agency informal rulemaking, as this concept evolved in the courts.  Both Home Box Office and Sierra Club v. Costle acknowledged continued debate in the legal academy over this definitional concern, and examined whether the record in challenges to informal agency rulemakings ought to include information about “ex parte” communications with individual members of the public.

The D.C. Circuit’s per curiam opinion in Home Box Office is perhaps best known for requiring certain ex parte contacts with agency officials made after the close of the public comment period, but prior to publication of the rule, to be disclosed in the public rulemaking docket of an informal rulemaking proceeding before the Federal Communications Commission.  In Home Box Office, the D.C. Circuit held that “[e]ven the possibility that there is here one administrative record for the public and this court and another for the Commission and those ‘in the know’ is intolerable.”[4]  The court found that requiring the agency to report certain ex parte contacts in the public rulemaking docket would not be unduly burdensome.  It also observed that agency compliance with a reporting requirement would be consistent with the Conference’s recommendation to include “factual information . . . considered by the authority responsible for the promulgation of the rule or that is proffered by the agency as pertinent to the rule” in the materials before the court for use in evaluating, on preenforcement review, the factual basis for informal rulemakings.[5]  In a special concurrence, Judge MacKinnon cautioned that the broad language of the case might be applied more generally and urged its limited application to the “precise type of case before the court.”[6]  Subsequent caselaw has clarified that this holding was indeed limited to its facts, rather than generally applicable to all informal rulemaking proceedings.[7]

Sierra Club v. Costle, for example, examined ex parte contacts made during Executive branch review of an informal rulemaking, also after the close of the public comment period but prior to publication of the rule.  Here though, the court found that record disclosures were unnecessary.  Judge Wald’s opinion held that:

The purposes of full-record review which underlie the need for disclosing ex parte conversations in some settings to do not require that courts know the details of every White House contact, including a Presidential one, in this informal rulemaking setting.  After all, any rule issued here with or without White House assistance must have the requisite factual support in the rulemaking record, and under this particular statute the Administrator may not base the rule in whole or in part on any “information or data” which is not in the record, no matter what the source.[8] 

While acknowledging the possibility that intra-Executive Branch contacts during the post-comment period could affect the outcome of a rule in ways that might be difficult for the court to police, the D.C. Circuit declined to find that an agency’s failure to docket one such meeting with the President violated due process requirements or the procedural requirements of the governing statute.  

However, the court left open the possibility that “docketing of conversations between the President and his staff or other Executive Branch officers or rule makers may be necessary to ensure due process.”[9]  Judge Wald in dicta cited the Conference’s general suggestions for docketing intra-Executive Branch communications in Recommendation 80-6, Intragovernmental Communications in Informal Rulemaking, including its suggestion that Executive departments and agencies should docket “material factual information (as distinct from indications of governmental policy) pertaining to or affecting a proposed rule)” received from the President, the Executive Office of the President or other executive branch agencies (emphasis added). The Conference later took up the question of when information about communications with external actors during presidential review of agency rules should be included in the public rulemaking docket in Recommendation 88-9, Presidential Review of Agency Rulemaking.

Since the Administrative Conference was reestablished in 2009, the agency has revisited its prior work on both ex parte communications and the administrative record in informal rulemaking.  It remains to be seen whether these efforts and the accompanying recommendations will inform the D.C. Circuit’s discourse in future cases at the intersection of these subjects.

Next, we look at references to the Conference's scholarship in other U.S. Courts of Appeals...

[1] Admin. Conf. of the U.S., Recommendation 76-3, Procedures in Addition to Notice and the Opportunity for Comment in Informal Rulemaking, available at: www.acus.gov/76-3; Stephen F. Williams, “Hybrid Rulemaking” under the Administrative Procedure Act: A Legal and Empirical Analysis, 4 ACUS 499 (1979) and 42 U. Chi. L. Rev. 401 (1975).

[2] 567 F.2 9 (D.C. Cir. 1977).

[3] 657 F.2d 298 (D.C. Cir. 1981).

[4] 745 F.2d 677 (D.C. Cir. 1984).

[5] Home Box Office, 567 F.2 at 57 n. 130 (citing Recommendation 74-4, Preenforcement Judicial Review of Rules of General Applicability § 1(4)).

[6] Id. at 62-64.

[7] Iowa State Commerce Commission v. Office of Federal Inspector, 730 F.2d 1566, 1576 (D.C. Circuit 1984) (noting “at the outset that this court has not interpreted Home Box Office to apply in all informal rulemaking proceedings”); see also Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, Adrian Vermeule, Administrative Law and Regulatory Policy 596 (6th ed. 2006).

[8] Sierra Club, 657 F.2d at 407-408 (emphasis in original) (D.C. Cir. 1984)..

[9] Id. at 407.