Making sense of procedural injury

Administrative Law Review

Volumn 62, Issue 1, 2010, Pages 1-18

  Pierce Jr , Richard J ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78650529643     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (90)

1. See Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U. S. 150, 152, 156 (1970).
2. For detailed discussion of the cases, see RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 16.5 (5th ed. 2010).
3. 504 U. S. 555, 572 n. 7 (1992).
4. Many of the procedural injury cases are resolved by deciding whether the procedure the agency failed to provide affected what the Court refers to as a "separate concrete interest" of the petitioner, e.g., the agency action would damage a tract of land the petitioner uses for recreational purposes. I have discussed that class of disputes in detail elsewhere.
5. See, e.g., Richard J. Pierce, Jr., Issues Raised by Friends of the Earth v. Laidlaw Environmental Services: Access to the Courts for Environmental Plaintiffs, 11 DUKE ENVTL. L. & POL'Y F. 207, 210 (2001);
6. Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N. C. L. RRV. 1741, 1752-58 (1999). For purposes of this Article, I am ignoring that important class of cases. I am focusing only on cases in which the agency's failure to provide the procedure at issue jeopardizes a separate concrete interest of the petitioner and in which the only question the court must resolve is whether the petitioner has demonstrated an adequate causal relationship between the omission of that procedure and the resolution of the underlying substantive dispute against the petitioner.
7. E.g., Elec. Power Supply Ass'n v. FERC, 391 F.3d 1255, 1261-62 (D. C. Cir. 2004) (acknowledging that if the Association's procedural rights had been violated, the decisionmaking would be affected);
8. FEC v. NRA Political Victory Fund, 6 F.3d 821, 824 (D. C. Cir. 1993) (finding error with the lower court's holding that the petitioner needed to allege a different outcome would have occurred in the agency's decision).
9. Ctr. for Law & Educ. v. Dep't of Educ, 396 F.3d 1152, 1159 (D. C. Cir. 2005)
10. (quoting Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 665 (D. C. Cir. 1996) (en banc)).
11. 129 S. Ct. 1696 (2009).
12. 5 U. S. C. § 706 (2006) ("[A] court shall review the whole record... and due account shall be taken of the rule of prejudicial error.").
13. 129 S. Ct. at 1704 (incorporating § 706 into its opinion).
14. Id. at 1704-05.
15. Id. at 1707.
16. Id.
17. E.g., Neder v. United States, 527 U. S. 1, 19-20 (1999) (noting that a court considers whether certain evidence could lead to a contrary holding);
18. O'Neal v. McAninch, 513 U. S. 432, 434-35 (1995) (concluding that an "uncertain judge should treat the error... as if it affected the verdict");
19. Kotteakos v. United States, 328 U. S. 750, 771 (1946) (stating that misnomers cannot be considered prejudicial).
20. 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 2883 (2d ed. 1995) (citation omitted).
21. Id.
22. Id. § 2885.
23. Id. § 2887.
24. Id. § 2886.
25. E.g., Kevin M. Clermont & Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 CORNELL L. REV. 1124, 1126, 1137 (1992) (demonstrating that the "win ratio" ranges from 0.85 to 1.15 in most types of cases, but is significantly more different in product liability and medical malpractice cases);
26. Harry Kalven, Jr., The Dignity of the Civil Jury, 50 VA. L. REV. 1055, 1064-65 (1964) (finding vast agreement between judge and jury decisions in both criminal and personal injury cases).
27. One way of testing the accuracy of this assertion is to ask how often an evidence student submits an error-free final exam paper. In my decades of teaching the subject to hundreds of students, I have never seen a perfect paper. I must also admit that I always discover that the answer sheet I initially made up for grading purposes has errors that I correct as I read exam papers in which one or more students did a better job of answering a question than I did. Once I detect and correct the errors in my initial answer sheet, I regrade any of the exams that I previously graded using my initially flawed answer sheet.
28. The Supreme Court recognized with approval the universal use of a plausibility test in the context of deprivation of hearing rights in its opinion in Lujan v. Defenders of Wildlife. 504 U. S. 555, 572 (1992).
29. The Court also approved of the practice in the context of environmental impact statements in Lujan.
30. Id. at 572 n. 7.
31. Courts routinely entertain arguments by petitioners that an agency denied the petitioner the right to notice and comment conferred by APA § 553 by erroneously claiming that the rule was exempt from the notice-and-comment procedure. I have collected and described scores of such cases in my treatise.
32. PIERCE, supra note 2, §§ 6.3-6.5, 7.10. I have not read a single such opinion in which a court has required a petitioner to show that the provision of the right to notice and comment probably would have caused the agency to issue a rule more favorable to the petitioner.
33. E.g., Elec. Power Supply Ass'n v. FERC, 391 F.3d 1255, 1262 (D. C. Cir. 2004) (deciding that if FERC were involved in illegal ex parte communication, the petitioner would be adversely affected).
34. See generally PIERCE, supra note 2, § 8.4 (discussing ex parte communications in adjudications).
35. FEC v. NRA Political Victory Fund, 6 F.3d 821, 824 (D. C. Cir. 1993) (reiterating that less favorable treatment does not need to be shown by a petitioner if the agency was unconstitutionally constituted).
36. See generally PIERCE, supra note 2, §§ 2.4-2.5 (outlining the relationship between separation of powers, checks and balances, and independent agencies).
37. Courts routinely address arguments that an agency violated the Federal Advisory Committee Act (FACA) without requiring a petitioner to prove the impossible-that compliance with FACA probably would have changed the outcome of the proceeding.
38. E.g., Pub. Citizen v. U. S. Dep't of Justice, 491 U. S. 440, 447-48 (1989) (restating the Justice Department's argument that the action did not fall within FACA).
39. For discussion of many other FACA cases, see PIERCE, supra note 2, § 5.19.
40. Courts are even more reluctant to reverse agencies based on erroneous evidentiary rulings than to reverse judgments in civil cases based on erroneous evidentiary rulings.
41. See Richard J. Pierce, Jr., Use of the Federal Rules of Evidence in Federal Agency Adjudications, 39 ADMIN. L. REV. 1, 6-7 (1987) ("If an agency's statutory and regulatory provisions relating to admissibility of evidence incorporate only the A[dministrative] P[rocedure] A[ct (APA)] standard, it seems impossible for an agency action to be reversed on the basis that the agency erroneously admitted evidence. Courts routinely decline to reverse agencies on this basis.").
42. E.g., Shkabari v. Gonzales, 427 F.3d 324, 328-29 (6th Cir. 2005) (averring that the inconsistencies in the agency documents lessened their credibility);
43. Tourus Records, Inc. v. DEA, 259 F.3d 731, 739 (D. C. Cir. 2001) (pointing out that the internal memoranda were clear and therefore the DEA's rationale was reasonable).
44. See generally PIERCE, supra note 2, § 8.5 (dissecting APA § 557 (3) (A) which requires agencies to provide findings and conclusions in certain situations).
45. E.g., Chamber of Commerce v. SEC, 443 F.3d 890, 900-01, 904 (D. C. Cir. 2006) (stating that the SEC's reliance on material outside the record required additional opportunities for comment).
46. See generally PIERCE, supra note 2, § 7.3 (outlining the APA's adequate notice requirement).
47. E.g., USA Group Loan Servs., Inc. v. Riley, 82 F.3d 708, 713-14 (7th Cir. 1996) (finding no fault on the part of the Secretary of Education for not adequately discussing the differences between strict liability and negligence liability as brought up in comments).
48. See generally PIERCE, supra note 2, § 7.4 (discussing the relationship between comments and the statutory requirement of incorporating a general statement of basis and purpose, and the requirements of agencies to respond to comments).
49. E.g., La. Ass'n of Indep. Producers & Royalty Owners v. FERC, 958 F.2d 1101, 1111-12 (D. C. Cir. 1992) (per curiam) (holding that no harmful error occurred when FERC representatives engaged in ex parte communication because the appellants did not suffer prejudice as it was a purely procedural proceeding).
50. See generally PIERCE, supra note 2, § 8.4 (discussing the role of ex parte communications in administrative adjudications).
51. E.g., Heartland Reg'l Medical Ctr. v. Sebelius, 566 F.3d 193, 197-98 (D. C. Cir. 2009) (discussing how the first Allied-Signal factor counsels courts to remand without vacating if an agency can cure a defect by an explanation of its decision);
52. Allied-Signal, Inc. v. NRC, 988 F.2d 146 (D. C. Cir. 1993) (creating a test to determine when courts should overrule agency decisions and when courts should remand, vacating the decision).
53. See generally PIERCE, supra note 2, § 7.13 (describing a court's ability to overturn rules or remand without vacating in order to correct instances of error).
54. E.g., Buckley v. Valeo, 424 U. S. 1, 142 (1976) (per curiam) (upholding the actions of the FEC even though the selection of its members violated statute).
55. See generally PIERCE, supra note 2, § 2.4 (discussing the use of the Judiciary as a check on federal agencies).
56. E.g., Cal. Forestry Ass'n v. U. S. Forest Serv., 102 F.3d 609, 613 (D. C. Cir. 1996) (reversing the district court's grant of summary judgment to the Forest Service because its program was in fact under FACA and therefore plaintiffs had standing to bring suit).
57. See generally PIERCE, supra note 2, § 5.19 (discussing the Advisory Committee Act).
58. Ctr. for Law & Educ. v. Dep't of Educ, 396 F.3d 1152 (D. C. Cir. 2005).
59. Id.
60. Id. at 1154.
61. Id.
62. (quoting 20 U. S. C. § 6571 (b) (3) (B) (2006)).
63. Id. at 1155-56.
64. Id. at 1154-55.
65. Id. at 1155.
66. See id. at 1156 (restating that the district court found for Department of Energy on the grounds that plaintiffs lacked standing, actual injury, and causation).
67. Id.
68. See id. at 1156-62 (holding that the plaintiff lacked standing because the act did not create a right of action, the plaintiff could not show an injury to a concrete interest, and the plaintiff failed to show a causal connection). The third member of the panel wrote a concurring opinion in which he disagreed with the majority's reasoning and conclusion with respect to the procedural injury test and concurred on the basis of his belief that the petitioner had failed to demonstrate that the individual plaintiff had a concrete interest that was at stake in the rulemaking.
69. Id. at 1166-68 (Edwards, J., concurring).
70. Id. at 1159 (majority opinion) (citation omitted) (alteration in original).
71. 5 U. S. C. app. § 5 (b) (2) (2006).
72. See, e.g., Cal. Forestry Ass'n v. U. S. Forest Serv., 102 F.3d 609 (D. C. Cir. 1996) (finding for plaintiffs because the panel was not fairly balanced).
73. See generally PIERCE, supra note 2, § 5.19 (discussing the balancing requirement of the Advisory Committee Act).
74. See supra notes 36-45 and accompanying text.
75. Shinseki v. Sanders, 129 S. Ct. 1696, 1705 (2009).
76. Ctr. for Law & Educ., 396 F.3d at 1159
77. (citing Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658 (D. C. Cir. 1996)).
78. E.g., Chamber of Commerce v. SEC, 43 F.3d 890, 896-97 (D. C. Cir. 2006) (applying the plausibility test to find that the plaintiff had standing);
79. Chamber of Commerce v. SEC, 412 F.3d 133, 138 (D. C. Cir. 2005);
80. Elec. Power Supply Ass'n v. FERC, 391 F.3d 1255, 1262 (D. C. Cir. 2004).
81. 396 F.3d at 1159 (citation omitted) (alteration in original).
82. 94 F.3d at 664-65.
83. Id. at 662.
84. Id.
85. Id. at 668.
86. See id. at 667-68 (stating that appellants merely proffered expert testimony that a harm might occur and that such speculation is not sufficient for standing).
87. 504 U. S. 555, 572 n. 7 (1992).
88. 94 F.3d at 662.
89. Id. at 666 (citations omitted).
90. WRIGHT, MILLER & KANE, supra note 14, § 2883.