Portland Audubon Society v. Endangered Species Committee

United States Court of Appeals for the Ninth Circuit · Administrative Law

Administrative LawEx parte communicationsAdministrative Procedure ActFormal adjudicationAdministrative record5 U.S.C. § 557(d)5 U.S.C. § 554(a)whole record

Facts

The Endangered Species Committee granted the Bureau of Land Management an exemption from the Endangered Species Act for thirteen timber sales in western Oregon. Environmental groups alleged, based on press reports and counsel's declaration, that White House officials met with and pressured Committee members before the vote, including commenting on draft decision materials. The Committee neither admitted nor denied that the communications occurred, but argued that any review had to be confined to the agency record and that such White House communications were lawful. The environmental groups sought discovery into those contacts and requested appointment of a special master.

Issue

Whether Endangered Species Committee exemption proceedings are subject to the APA's prohibition on ex parte communications, whether the President and White House staff fall within that prohibition, and what remedy is appropriate when there are substantial allegations that off-the-record White House contacts influenced the Committee's decision.

Rule

When a statute requires an agency determination to be an adjudication made on the record after opportunity for an agency hearing, APA §§ 554, 556, and 557 apply, including the ban on ex parte communications in 5 U.S.C. § 557(d)(1). In such formal adjudicatory proceedings, the President and White House staff are 'interested person[s] outside the agency' and may not engage in off-the-record merits communications with agency decisionmakers. For judicial review, the APA requires the whole record, which includes all materials actually before the agency; if improper ex parte communications occurred, the record must be supplemented accordingly.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A federal statute requires the River Access Board to decide individual marina permit applications "on the record" after a hearing conducted by an ALJ. Before the Board votes on a contested application involving a harbor in Baltimore, the governor's federal liaison privately emails two Board members urging approval because the project is politically important to the administration.

If the applicant's opponent challenges the Board's decision, which is the strongest argument that the private emails violated the APA?

Explanation. The majority held that when a statute makes the agency action an adjudication determined on the record after opportunity for an agency hearing, APA §§ 554, 556, and 557 apply automatically. That includes § 557(d)(1)'s ex parte ban. The rule does not depend on an express statutory citation to § 557(d), and the opinion did not create a ban for all agency proceedings, only formal adjudications (and, by statute, formal rulemaking).