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| | In that [[First Circuit]] decision, Appellants asserted that an EPA "directive violates FACA's fair balance provision (Count III); the directive violates FACA's inappropriate influence provision (Count IV); and the EPA offered no rational explanation for adopting the directive, especially given that it changed prior policy (Count I)." ''Id.'' at 17. | | In that [[First Circuit]] decision, Appellants asserted that an EPA "directive violates FACA's fair balance provision (Count III); the directive violates FACA's inappropriate influence provision (Count IV); and the EPA offered no rational explanation for adopting the directive, especially given that it changed prior policy (Count I)." ''Id.'' at 17. |
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| | + | == Challenging FACA violations using the APA == |
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| | + | The [[Administrative Procedure Act]] (APA) can be invoked to challenge FACA violations, as explained by the federal District Court for the [[District of Columbia]]: |
| | + | {{cquote|Thus, the question before this Court is whether collective decisions by such a group, including several agency heads, to hold meetings that allegedly violated the FACA requirements and to establish and control Task Force Sub-Groups, can be considered first, agency action, and second, final agency action pursuant to the APA. Defendants argue, "in the context of advisory committees, the agency that charters a committee and to which a committee reports can engage in final agency action, but individual members of an advisory committee cannot." Defs.' Reply of 4/26/02 at 12. Defendants' primary justification for why the actions of the agency heads cannot be considered agency action is that these individuals acted only as participants in a policy-making group, and were not making decisions on behalf of their agencies. |
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| | + | According to § 10 of the APA, 5 U.S.C. § 701(b)(2), "agency action" has the meaning given to it by 5 U.S.C. § 551. That definition of "'agency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). That section further defines "order" as "the whole or a part of a final disposition ? of an agency in a matter other than rule making…." 5 U.S.C. § 551(6). According to the legislative history of the APA: |
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| | + | The term 'agency action' brings together previously defined terms in order to simplify the language of the judicial-review provisions of section 10 and to assure the complete coverage of every form of agency power, proceeding, action, or inaction. In that respect the term includes the supporting procedures, findings, conclusions, or statements or reasons or basis for the action or inaction." |
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| | + | S. Doc. No. 248, 79th Cong., 2d Sess., 255 (1946). As the D.C. Circuit has explained, "the Act defines agency action as 'the whole or a part of an agency rule, order, license, sanction, relief, of the equivalent or denial thereof, or failure to act.' …. Id. § 551(13). These categories are imprecise, and courts have made the threshold determination of reviewable agency action on a case-by-case basis." Industrial Safety Equipment v. EPA, 267 U.S. App. D.C. 112, 837 F.2d 1115, 1118 (D.C. Cir. 1988). |
| | + | The type of actions and inaction challenged here, creating sub-groups of the Task Force, holding meetings, refusing to disclose documents, failure to comply with FACA's other procedural requirements, certainly fall within the broad category of "agency power" Congress intended to include in this definition of agency action. S. Doc. No. 248, 79th Cong., 2d Sess., 255 (1946) ("to assure the complete coverage of every form of agency power, proceeding, action, or inaction."). The government can not seriously challenge the type of action taken here as not the type of action covered by this definition. Whether that action can be ascribed to an agency, and whether that action is sufficiently final, are two more difficult questions.}} |
| | + | ''Judicial Watch v. Nat'l Energy Policy Dev. Grp.'', 219 F. Supp. 2d 20, 37-38 (D.D.C. 2002) |
| | == References == | | == References == |
| | {{reflist}} | | {{reflist}} |
| | [[category:administrative Law]] | | [[category:administrative Law]] |
| | [[category:government]] | | [[category:government]] |