Arbitrary And Capricious

Author : LandMark Publications
Publisher :
ISBN 13 : 9781980499886
Total Pages : 536 pages
Book Rating : 4.4/5 (998 download)

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Download or read book Arbitrary and Capricious Standard Under the APA written by LandMark Publications and published by . This book was released on 2018-03-11 with total page 536 pages. Available in PDF, EPUB and Kindle. Book excerpt: THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the arbitrary and capricious standard under the Administrative Procedure Act. * * * Under Administrative Procedure Act § 706(2)(A), a reviewing court may set aside an agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).An agency interpretation would surely be "arbitrary" or "capricious" if it were picked out of a hat, or arrived at with no explanation, even if it might otherwise be deemed reasonable on some unstated ground. Catskill Mountains Chapter of Trout v. EPA, 846 F. 3d 492, (2nd Cir. 2017). * * * So long as any change is reasonably explained, it is not arbitrary and capricious for an agency to change its mind in light of experience, or in the face of new or additional evidence, or further analysis or other factors indicating that the agency's earlier decision should be altered or abandoned. Cf. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-16 (2009). New England Power Generators Association, Inc. v. Federal Energy Regulatory Commission, (DC Cir. 2018). * * *It is well-settled that the NLRB -- like any other agency -- cannot "turn[] its back on its own precedent and policy without reasoned explanation." Dupuy v. NLRB, 806 F.3d 556, 563 (D.C. Cir. 2015); see also E.I. Du Pont de Nemours & Co. v. NLRB, 682 F.3d 65, 70 (D.C. Cir. 2012) (explaining that the NLRB must "give a reasoned justification for departing from its precedent"). Generally speaking, "the requirement that an agency provide reasoned explanation for its action ... demand[s] that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). And if "a party makes a significant showing that analogous cases have been decided differently, the agency must do more than simply ignore that argument." LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55, 61 (D.C. Cir. 2004). Thus, when the Board fails to explain -- or even acknowledge -- its deviation from established precedent, "its decision will be vacated as arbitrary and capricious." Manhattan Ctr. Studios, Inc., v. NLRB, 452 F.3d 813, 816 (D.C. Cir. 2006). ABM Onsite Services v. NLRB, 849 F. 3d 1137 (DC Cir. 2017).