Topics: (1) Public Comments Must Be Reasonably Specific - March 15, 2005 (2) Exhaustion of Administrative Remedies - March 19, 2005 PUBLIC COMMENTS MUST BE REASONABLY SPECIFIC March 15, 2005 The test of whether a public comment is sufficient to exhaust administrative remedies is whether it was made with "reasonable specificity". (Mosville Envtl. Action Now v. EPA, 370 F.3d 1232 (DC Cir., 2004)) One fails to exhaust their administrative remedies when failing to make reasonably specific public comments. This is because the court may not consider a procedural claim unless it has been "raised with reasonable specificity" before the agency, either during the period for public comment or in a petition for reconsideration. (42 U.S.C. ' 7607(d)(7)(B); George W. Warren Corp. v. US EPA, 159 F.3d 616, 629 (DC Cir. 1998)) This is true even for a public comment alleging failure to publish data. The Administrative Procedure Act, 5 U.S.C.S. ' 706, provides that a reviewing court shall take due account of the rule of prejudicial error. The rule applies when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of the decision reached. A petitioner who objects to an agency's failure to publish data for comment must indicate with reasonable specificity what portions of the document it objects to and how it might have responded if given the opportunity. (Chemical Manufacturers Assn. v. US EPA, 870 F.2d 177, 202 (5th Cir. 1989)) In other words, one must show how the data, which should have been published, would have affected them. (Carus Chem. Co. v. US EPA, 395 F.3d 434, 441 (DC Cir. 2005)) Reasonable specificity requires something more than a general challenge. (Mossville Environmental Action Now v. US EPA, 370 F.3d 1232, 1238 (DC Cir 2004)) A public comment is not reasonably specific that fails to cite any code or regulation of which the agency allegedly violated. Moreover, it is not enough to cite the Act (or Part) or even the section within the Act (or Part), which the agency violated. One is required to cite the applicable subsection of the code, which the agency violated. (Motor & Equip. Mfvs. Ass=n. V. Nichols, 142 F.3d 449, 462 (DC Cir. 1998)) The agency need not respond to any public comment that is not significant enough to step over a threshold requirement of materiality. As the Environmental Protection Agency Administrator recognized in this case, comments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern. The comment cannot merely state that a particular mistake was made; it must show why the mistake was of possible significance in the results. (Citizens for Clean Air v. United States EPA, 959 F.2d 839, 844 (9th Cir. 1992)) It is not enough to point out a particular mistake. A commentator must show why the mistake was of possible significance in the results. It is not enough to merely point out procedural errors. One must also show how those procedural errors are serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made. (Husqvarna Ab v. EPA, 254 F.3d 195, 202 (DC Cir 2001)) Walter H. Eason, Jr. President/CEO March 15, 2005 Back to Top EXHAUSTION OF ADMINISTRATIVE REMEDIES March 19, 2005 Exhaustion of administrative remedies is a judicially-created doctrine. (Washington Association for Television & Children v. FCC (WATCH), 229 U.S. App. D.C. 363, 712 F.2d 677, 681-82 (D.C. Cir. 1983) (interpreting ' 405(2)); accord Office of Communication of the United Church of Christ v. FCC, 250 U.S. App. D.C. 312, 779 F.2d 702, 706-07 (D.C. Cir. 1985) (interpreting ' 405(1)); see also North Texas Media, Inc. v. FCC, 250 U.S. App. D.C. 155, 778 F.2d 28, 33-34 (D.C. Cir. 1985)) Simple fairness requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice. (United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37, 97 L. Ed. 54, 73 S. Ct. 67 (1952)) For various administrative proceedings, this doctrine has been codified. (For example, see 47 U.S.C. ' 405 (1982)) As incorporated in section 405, this doctrine "require [s] complainants, before coming to court, to give the FCC a 'fair opportunity' to pass on a legal or factual argument." (Alianza Federal de Mercedes v. FCC, 176 U.S. App. D.C. 253, 539 F.2d 732, 739 (D.C. Cir. 1976)) The exhaustion doctrine is not without its exceptions. The courts have recognized the salutary, common-sense notion that the exhaustion doctrine is to be applied flexibly. Objections that fall within that class of issues which, "by their nature could not have been raised before the agency", are excepted. (WATCH, 712 F.2d at 682) Futility is a recognized exception; that, it would be Afutile@ for petitioners to lodge their procedural complaints in the agency proceedings. (See WATCH, 712 F.2d at 682 & n.9) One is exempt from the exhaustion doctrine if the agency is wedded to the procedures that it employed. (Action for Children's Television v. FCC, 183 U.S. App. D.C. 437, 564 F.2d 458, 469 (D.C. Cir. 1977) (exhaustion not required where Commission's general views on issue were already known)) One is exempt from the exhaustion doctrine if the issue had been previously addressed.(Great Falls Community TV Cable Co. v. FCC, 416 F.2d 238, 239-40 (9th Cir. 1969) (exhaustion not required where issue had been specifically addressed in prior rule-making)) One is exempt from the exhaustion doctrine where another party to the proceedings voiced the objection. (See WATCH, 712 F.2d at 682 & n.10; see also, L. Jaffe, Judicial Control of Administrative Action 457-58 (1965)) Procedural objections premised on the APA, however, are precisely the sort appropriately raised before the agency in the first instance. (American Radio Relay League, Inc. v. FCC, 199 U.S. App. D.C. 293, 617 F.2d 875, 879 n.8 (D.C. Cir. 1980)) Agencies have attempted to expand the exhaustion doctrine (for rule making) to include all potentially impacted persons. Often they will move for an estoppel to prevent a plaintiff from challenging regulations they failed to comment upon, during promulgation. The Court of Appeals for the First Circuit has stated that it agrees with "those courts that have held that a party aggrieved by an agency ruling is not stopped from challenging the validity of an agency standard that it has not objected to at the time of promulgation." (Commonwealth v. Hayes, 691 F.2d 57, 60 (1st Cir. 1982) However, under certain circumstances, estoppel has been deemed appropriate where the aggrieved party had actual notice of the proposed rule. (Id.; and, Stinson Canning Co. v. Mosbacher, 731 F. Supp. 32, 34 (Dist. of Maine, 1990)) Exhaustion may not be complete for general planning documents without also objecting to the specific projects from which they tier. For example: Ohio Forestry involved a Sierra Club challenge to the lawfulness of a forest plan for the Wayne National Forest. Ohio Forestry, 523 U.S. at 728. The Supreme Court concluded that the controversy was not ripe for judicial review because the forest plan had not been implemented through specific timber sales and the Sierra Club failed to demonstrate the necessary hardship if judicial review was withheld. Id. at 733-34. In addressing the lack of hardship to the parties, the Court rejected the Sierra Club's argument that a single legal challenge against the forest plan would be more cost efficient than challenging each timber sale implementing the plan. Id. at 734-35. This argument was rejected because the Sierra Club failed to show how a victory on one timber project based on the forest plan's unlawfulness would not effectively preclude all other projects. Id. (Northwoods Wilderness Recovery, Inc. v. US, 2005 U.S. Dist. LEXIS 2277 (Western Dist. of Michigan)) Walter H. Eason, Jr. President/CEO March 19, 2005 Back to Top