CASE 5-3
SACKETT v. ENVIRONMENTAL PROTECTION AGENCY
Supreme Court of the United States, 2012
566 U.S. ___, 132 S.CT. 1367, 182 L.Ed.2d 367
http://scholar.google.com/scholar_case?q=132+S.CT.
+1367&hl=en&as_sdt=2,34&case=13663798285804514473&scilh=0
Scalia, J.
[The Clean Water Act (Act) prohibits “the discharge of any pollutant by any person,”
without a permit, into the “navigable waters,” which the Act defines as “the waters of the
United States.” If the Environmental Protection Agency (EPA) determines that any person
is in violation of this restriction, the Act directs the agency either to issue a compliance
order or to initiate a civil enforcement action. When the EPA prevails in a civil action, the
Act provides for a civil penalty not to exceed $37,500 per day for each violation.
According to the government, when the EPA prevails against any person who has been
issued a compliance order but has failed to comply, that amount is increased to $75,000.
The Sacketts own a two-thirds-acre residential lot in Bonner County, Idaho. Their
property lies just north of Priest Lake, but it is separated from the lake by several lots
containing permanent structures. In preparation for constructing a house, the Sacketts filled
in part of their lot with dirt and rock. Some months later, they received from the EPA a
compliance order, which stated that their residential lot contained navigable waters and
no doubt it is agency action, which the APA defines as including even a “failure to act.”
[Citation.] But is it final? It has all of the hallmarks of APA finality that our opinions
establish. Through the order, the EPA “‘determined’” “‘rights or obligations.’” [Citation.] *
* * Also, “‘legal consequences . . . flow’” from issuance of the order. [Citation.] * * *
The issuance of the compliance order also marks the “‘consummation’” of the
agency’s decisionmaking process. [Citation.] As the Sacketts learned when they
unsuccessfully sought a hearing, the “Findings and Conclusions” that the compliance order
contained were not subject to further agency review. * * *
The APA’s judicial review provision also requires that the person seeking APA
review of final agency action have “no other adequate remedy in a court,” [Citation.] In
Clean Water Act enforcement cases, judicial review ordinarily comes by way of a civil
action brought by the EPA under [citation]. But the Sacketts cannot initiate that process,
and each day they wait for the agency to drop the hammer, they accrue * * * an additional
$75,000 in potential liability. The other possible route to judicial review—applying to the
Corps of Engineers for a permit and then filing suit under the APA if a permit is denied—
will not serve either. * * *
* * *
We conclude that the compliance order in this case is final agency action for which
there is no adequate remedy other than APA review, and that the Clean Water Act does not
preclude that review. We therefore reverse the judgment of the Court of Appeals and
remand the case for further proceedings consistent with this opinion.
*** Chapter Outcome ***
Identify (a) the questions of law determined by a court in conducting
a review of a rule or order of an administrative agency, and …(cont’d below)
Questions of Law — The scope of judicial review is limited to determining
whether the agency has: (1) exceeded its authority; (2) properly
interpreted the applicable law; (3) violated any constitutional provision; or
(4) acted contrary to the procedural requirements of the law.
CASE 5-4
FCC v. FOX TELEVISION STATIONS, INC.
Supreme Court of the United States, 2009
556 U.S. 502, 129 S.Ct. 1800, 173 L.Ed.2d 738
http://scholar.google.com/scholar_case?q=129+S.CT.
+1800&hl=en&as_sdt=2,34&case=2103709062574873617&scilh=0
Scalia, J.
Federal law prohibits the broadcasting of “any … indecent … language,” [citation], which
includes expletives referring to sexual or excretory activity or organs, see [citation]. This
case concerns the adequacy of the Federal Communications Commission’s explanation of
its decision that this sometimes forbids the broadcasting of indecent expletives even when
the offensive words are not repeated.
* * *
* * * Congress has given the Commission various means of enforcing the indecency
ban, including civil fines, see § 503(b)(1), and license revocations or the denial of license
renewals, [citation].
The Commission first invoked the statutory ban on indecent broadcasts in 1975,
declaring a daytime broadcast of George Carlin’s “Filthy Words” monologue actionably
* * *
In the ensuing years, the Commission took a cautious, but gradually expanding,
approach to enforcing the statutory prohibition against indecent broadcasts. * * *
Although the Commission had expanded its enforcement beyond the “repetitive use of
specific words or phrases,” it preserved a distinction between literal and nonliteral (or
“expletive”) uses of evocative language. [Citation.] The Commission explained that each
literal “description or depiction of sexual or excretory functions must be examined in
context to determine whether it is patently offensive,” but that “deliberate and repetitive
Golden Globe Awards, in the performer Bono commented, “‘This is really, really, f* * *ing
brilliant.’” * * *
* * *
This case concerns utterances in two live broadcasts aired by Fox Television Stations,
Inc., and its affiliates prior to the Commission’s Golden Globes Order. The first occurred
during the 2002 Billboard Music Awards, when the singer Cher exclaimed, “I’ve also had
critics for the last 40 years saying that I was on my way out every year. Right. So f* * *
‘em.” [Citation.] The second involved a segment of the 2003 Billboard Music Awards,
during the presentation of an award by Nicole Richie and Paris Hilton, principals in a Fox
television series called “The Simple Life.” Ms. Hilton began their interchange by reminding
On March 15, 2006, the Commission released Notices of Apparent Liability for a
number of broadcasts that the Commission deemed actionably indecent, including the two
described above. [Citation.] * * *
The order first explained that both broadcasts fell comfortably within the
subject-matter scope of the Commission’s indecency test because the 2003 broadcast
involved a literal description of excrement and both broadcasts invoked the “F-Word,”
which inherently has a sexual connotation. [Citation.] The order next determined that the
broadcasts were patently offensive under community standards for the medium.
* * *
The order explained that the Commission’s prior “strict dichotomy between ‘expletives’
and ‘descriptions or depictions of sexual or excretory functions’ is artificial and does not
make sense in light of the fact that an ‘expletive’s’ power to offend derives from its sexual
or excretory meaning.” * * * Although the Commission determined that Fox encouraged
the offensive language by using suggestive scripting in the 2003 broadcast, and
unreasonably failed to take adequate precautions in both broadcasts, [citation], the order *
* * declined to impose any forfeiture or other sanction for either of the broadcasts,
[citation].
“capricious,” [citation]. Under what we have called this “narrow” standard of review, we
insist that an agency “examine the relevant data and articulate a satisfactory explanation
for its action.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut.
Automobile Ins. Co., [citation]. We have made clear, however, that “a court is not to
substitute its judgment for that of the agency,” [citation], and should “uphold a decision of
less than ideal clarity if the agency’s path may reasonably be discerned,” [citation].
In overturning the Commission’s judgment, the Court of Appeals here relied in part on
Circuit precedent requiring a more substantial explanation for agency action that changes
prior policy. * * *
We find no basis in the Administrative Procedure Act or in our opinions for a
requirement that all agency change be subjected to more searching review. * * * The
statute makes no distinction, however, between initial agency action and subsequent
agency action undoing or revising that action.
To be sure, the requirement that an agency provide reasoned explanation for its action
would ordinarily demand 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. [Citation.] And of course the agency must show that there are good
reasons for the new policy. But it need not demonstrate to a court’s satisfaction that the
Judged under the above described standards, the Commission’s new enforcement policy
and its order finding the broadcasts actionably indecent were neither arbitrary nor
capricious. First, the Commission forthrightly acknowledged that its recent actions have
broken new ground, taking account of inconsistent “prior Commission and staff action” and
explicitly disavowing them as “no longer good law.” [Citation.] * * * There is no doubt that
the Commission knew it was making a change. That is why it declined to assess penalties *
* *.
Moreover, the agency’s reasons for expanding the scope of its enforcement activity
were entirely rational. * * * Even isolated utterances can be made in “pander[ing,] …
vulgar and shocking” manners, [citation], and can constitute harmful “‘first blow[s]’” to
The judgment of the United States Court of Appeals for the Second Circuit is reversed,
and the case is remanded for further proceedings consistent with this opinion.
[In deciding this case on remand, the Second Circuit Court of Appeals found the FCC’s
policy unconstitutionally vague and invalidated it in its entirety. The U.S. Supreme Court
vacated the Second Circuit’s decision but ruled against the FCC’s imposing sanctions
against Fox. The Supreme Court explained that under the Due Process Clause laws must
give fair notice of conduct that is forbidden or required and laws that are impermissibly
vague must be invalidated. The Court held that because the FCC failed to give Fox fair
notice prior to the broadcasts in question that fleeting expletives could be found actionably
*** Chapter Outcome ***
…(b) the three standards of judicial review of factual determination made by
administrative agencies.
Questions of Fact — When reviewing questions of fact, courts use one of
these tests: (1) the arbitrary and capricious test, which requires only that
the agency had a rational basis for its decision, (2) the substantial
evidence test, which requires that the conclusions reached are supported
by “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion” or (3) in rare cases (only when the enabling statute
provides), the court may apply the unwarranted by the facts standard,
which permits the court to try the facts de novo.
*** Chapter Outcome ***
Describe the limitations imposed on administrative agencies by the legislative branch,
the executive branch, and the legally required disclosure of information.
Legislative Control
The legislature may exercise control through its budgetary power, by
amending the agency’s enabling statute; by establishing general guidelines
such as the APA; by reversing or changing an agency rule through
Control by Executive Branch
The President has the power to appoint and remove the chief administrator
of an executive agency, but he has less control of independent agencies,
because commissioners serve for a 0xed term that is staggered with the
President’s term of o2ce. The President also submits a budget to Congress
and can impound monies or restructure agencies unless disapproved by
Congress.
NOTE: See textbook, Figure 5-1: Limits on Administrative Agencies.
Disclosure of Information
Requiring agencies to disclose information about their actions makes them
more accountable to the public. Congress has enacted disclosure statutes
to enhance the public and political oversight of the activities of
administrative agencies.
Freedom of Information Act — Permits agencies to deny access to nine
categories of records:
1. records that are speci0cally authorized to be kept secret in the
interest of national defense or foreign policy,
2. records that are related solely to the internal personnel rules and
practices of an agency,
3. records that are speci0cally exempted from disclosure by statute,
4. trade secrets and commercial or 0nancial information that is
privileged or con0dential,
5. inter-agency or intra-agency memorandums,
Privacy Act — The Privacy Act of 1974 prohibits unauthorized disclosures
of certain government records pertaining to individuals that a Federal
agency maintains and retrieves by an individual’s name or other personal
identi0er, including social security number. It also gives individuals the right
to review and copy records about themselves, to 0nd out if these records
have been disclosed, and to request corrections or amendments of these
records.