693
Chapter 44
Administrative Law
Case 44.1
U.S.,2009.
F.C.C. v. Fox Television Stations, Inc.
129 S.Ct. 1800, 173 L.Ed.2d 738, 77 USLW 4337, 37 Media L. Rep. 1577, 09 Cal. Daily Op. Serv. 5086, 2009
Daily Journal D.A.R. 6011, 47 Communications Reg. (P&F) 933, 21 Fla. L. Weekly Fed. S 808
Supreme Court of the United States
FEDERAL COMMUNICATIONS COMMISSION, et al., Petitioners,
v.
FOX TELEVISION STATIONS, INC., et al.
No. 07-582.
Argued Nov. 4, 2008.
Decided April 28, 2009.
FN1. The statutory prohibition applicable to commercial radio and television stations extends by its terms from 6 a.m. to 12
midnight. The Court of Appeals for the District of Columbia Circuit held, however, that because “Congress and the Commission [had]
backed away from the consequences of their own reasoning,” by allowing some public broadcasters to air indecent speech after 10
p.m., the court was forced “to hold that the section is unconstitutional insofar as it bars the broadcasting of indecent speech
between the hours of 10:00 p.m. and midnight.” Action for Children’s Television v. FCC, 58 F.3d 654, 669 (1995) (en banc), cert.
denied, 516 U.S. 1043, 116 S.Ct. 701, 133 L.Ed.2d 658 (1996).
The Commission first invoked the statutory ban on indecent broadcasts in 1975, declaring a daytime broadcast of George Carlin’s “Filthy
Words” monologue actionably indecent. Pacifica Foundation, 56 F.C.C.2d 94, 1975 WL 29897. At that time, the Commission announced the
definition of indecent speech that it uses to this day, prohibiting “language that describes, in terms patently offensive as measured by
contemporary community standards for the broadcast medium, sexual or excretory activities or organs, at times of the day when there is a
reasonable risk that children may be in the audience.” Id., at 98.
In FCC v. Pacifica Foundation, supra, we upheld the Commission’s order against statutory and constitutional challenge. We rejected the
broadcasters’ argument that the statutory proscription applied only to speech appealing to the prurient interest, noting that “the normal
definition of ‘indecent’ merely refers to nonconformance with accepted standards of morality.” Id., at 740, 98 S.Ct. 3026. And we held that the
First Amendment allowed Carlin’s monologue to be banned in light of the “uniquely pervasive presence” of the medium and the fact that
broadcast programming is “uniquely accessible to children.” Id., at 748-749, 98 S.Ct. 3026.
In the ensuing years, the Commission took a cautious, but gradually expanding, approach to enforcing the statutory prohibition against
indecent broadcasts. Shortly after Pacifica, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073, the Commission expressed its “inten[tion] strictly to
observe the narrowness of the Pacifica holding,” which “relied in part on the repetitive occurrence of the ‘indecent’ words” contained in
Carlin’s monologue. In re Application of WGBH Educ. Foundation, 69 F.C.C.2d 1250, 1254, ¶ 10, 1978 WL 36042 (1978). When the full
Commission next considered its indecency standard, however, it repudiated the view that its enforcement power was limited to “deliberate,
repetitive use of the seven words actually contained in the George Carlin monologue.” In re Pacifica Foundation, Inc., 2 FCC Rcd. 2698, 2699, ¶
12, 1987 WL 345577 (1987). The Commission determined that such a “highly restricted enforcement standard … was unduly narrow as a
matter of law and inconsistent with [the Commission’s] enforcement responsibilities under Section 1464.” In re Infinity Broadcasting Corp. of
Over a decade later, the Commission emphasized that the “full context” in which particular materials appear is “critically important,” but that
a few “principal” factors guide the inquiry, such as the “explicitness or graphic nature” of the material, the extent to which the material
“dwells on or repeats” the offensive material, and the extent to which the material was presented to “pander,” to “titillate,” or to “shock.” In
re Industry Guidance On the Commission’s Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, 16
FCC Rcd. 7999, 8002, ¶ 9, 8003, ¶ 10, 2001 WL 332787 (2001) (emphasis deleted). “No single factor,” the Commission said, “generally
provides the basis for an indecency finding,” but “where sexual or excretory references have been made once or have been passing or fleeting
in nature, this characteristic has tended to weigh against a finding of indecency.” Id., at 8003, ¶ 10, 8008, ¶ 17.
In 2004, the Commission took one step further by declaring for the first time that a nonliteral (expletive) use of the F– and S-Words could be
actionably indecent, even when the word is used only once. The first order to this effect dealt with an NBC broadcast of the Golden Globe
Awards, in which the performer Bono commented, “ ‘This is really, really, f* * *ing brilliant.’ ” In re Complaints Against Various Broadcast
CHAPTER 44: ADMINISTRATIVE LAW 695
The order acknowledged that “prior Commission and staff action have indicated that isolated or fleeting broadcasts of the ‘F–Word’ … are not
indecent or would not be acted upon.” It explicitly ruled that “any such interpretation is no longer good law.” Ibid., ¶ 12. It “clarif[ied] … that
the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently
offensive to the broadcast medium is not indecent.” Ibid. Because, however, “existing precedent would have permitted this broadcast,” the
Commission determined that “NBC and its affiliates necessarily did not have the requisite notice to justify a penalty.” Id., at 4981-4982, ¶ 15.
II. The Present Case
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.” Brief for Petitioners 9. 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 Ms. Richie to “watch the bad language,” but Ms. Richie proceeded to ask the
audience, “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s* * * out of a Prada purse? It’s not so f* * *ing simple.”
60. The order stated, however, that the pre- Golden Globes regime of immunity for isolated indecent expletives rested only upon staff rulings
and Commission dicta, and that the Commission itself had never held “that the isolated use of an expletive … was not indecent or could not
be indecent,” 21 FCC Rcd., at 13307, ¶ 21. In any event, the order made clear, the Golden Globes Order eliminated any doubt that fleeting
expletives could be actionably indecent, 21 FCC Rcd., at 13308, ¶ 23, 13325, ¶ 61, and the Commission disavowed the bureau-level decisions
and its own dicta that had said otherwise, id., at 13306-13307, ¶¶ 20, 21. Under the new policy, a lack of repetition “weigh[s] against a finding
489 F.3d 444. The majority was “skeptical that the Commission [could] provide a reasoned explanation for its ‘fleeting expletive’ regime that
would pass constitutional muster,” but it declined to reach the constitutional question. Id., at 462. Judge Leval dissented, id., at 467. We
granted certiorari, 552 U.S. —-, 128 S.Ct. 1647, 170 L.Ed.2d 352 (2008).
III. Analysis
696 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
explanation for agency action that changes prior policy. The Second Circuit has interpreted the Administrative Procedure Act and our opinion
in State Farm as requiring agencies to make clear “ ‘why the original reasons for adopting the [displaced] rule or policy are no longer
dispositive’ ” as well as “ ‘why the new rule effectuates the statute as well as or better than the old rule.’ ” 489 F.3d, at 456-457 (quoting New
York Council, Assn. of Civilian Technicians v. FLRA, 757 F.2d 502, 508 (C.A.2 1985); emphasis deleted). The Court of Appeals for the District of
Columbia Circuit has similarly indicated that a court’s standard of review is “heightened somewhat” when an agency reverses course. NAACP
FN2. Justice BREYER’s contention that State Farm did anything more, post, at 1830 – 1832 (dissenting opinion), rests upon his failure
to observe the italicized phrase and upon a passage quoted in State Farm from a plurality opinion in Atchison, T. & S.F.R. Co. v.
Wichita Bd. of Trade, 412 U.S. 800, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973). That passage referred to “a presumption that
[congressional] policies will be carried out best if the settled rule is adhered to.” Id., at 807-808, 93 S.Ct. 2367 (opinion of Marshall,
J.). But the Atchison plurality made this statement in the context of requiring the agency to provide some explanation for a change,
example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has
engendered serious reliance interests that must be taken into account. Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742, 116 S.Ct.
1730, 135 L.Ed.2d 25 (1996). It would be arbitrary or capricious to ignore such matters. In such cases it is not that further justification is
demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that
underlay or were engendered by the prior policy.
FN3. Justice BREYER claims that “[t]he Court has often applied [the doctrine of constitutional avoidance] where an agency’s
regulation relies on a plausible but constitutionally suspect interpretation of a statute.” Post, at 1840. The cases he cites, however,
set aside an agency regulation because, applying the doctrine of constitutional avoidance to the ambiguous statute under which the
agency acted, the Court found the agency’s interpretation of the statute erroneous. See Solid Waste Agency of Northern Cook Cty. v.
Army Corps of Engineers, 531 U.S. 159, 174, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490,
Globes Order, 19 FCC Rcd., at 4980, ¶ 12. To be sure, the (superfluous) explanation in its Remand Order of why the Cher broadcast would even
have violated its earlier policy may not be entirely convincing. But that unnecessary detour is irrelevant. There is no doubt that the
Commission knew it was making a change. That is why it declined to assess penalties; and it relied on the Golden Globes Order as removing
any lingering doubt. Remand Order, 21 FCC Rcd., at 13308, ¶ 23, 13325, ¶ 61.
Moreover, the agency’s reasons for expanding the scope of its enforcement activity were entirely rational. It was certainly reasonable to
monologue”); In re Infinity Broadcasting Corp. of Pa., 3 FCC Rcd., at 932, ¶ 17 (“reject[ing] an approach that would hold that if a work has
merit, it is per se not indecent”). The Commission could rationally decide it needed to step away from its old regime where nonrepetitive use
of an expletive was per se nonactionable because that was “at odds with the Commission’s overall enforcement policy.” Remand Order, supra,
at 13308, ¶ 23.
The fact that technological advances have made it easier for broadcasters to bleep out offending words further supports the Commission’s
children is one of them. One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent
broadcasts (and insulated from all other indecency), and others are shielded from all indecency. It is one thing to set aside agency action
under the Administrative Procedure Act because of failure to adduce empirical data that can readily be obtained. See, e.g., State Farm, 463
U.S., at 46-56, 103 S.Ct. 2856 (addressing the costs and benefits of mandatory passive restraints for automobiles). It is something else to insist
upon obtaining the unobtainable. Here it suffices to know that children mimic the behavior they observe-or at least the behavior that is
expletives; the Commission’s failure to go to this extreme thus undermined the coherence of its rationale. 489 F.3d, at 458-459. This
objection, however, is not responsive to the Commission’s actual policy under review-the decision to include patently offensive fleeting
expletives within the definition of indecency. The Commission’s prior enforcement practice, unchallenged here, already drew distinctions
between the offensiveness of particular words based upon the context in which they appeared. Any complaint about the Commission’s failure
to ban only some fleeting expletives is better directed at the agency’s context-based system generally rather than its inclusion of isolated
capricious its regulation of the deliberate and shocking uses of offensive language at the award shows under review-shows that were
expected to (and did) draw the attention of millions of children.
Finally, the Court of Appeals found unconvincing the agency’s prediction (without any evidence) that a per se exemption for fleeting expletives
would lead to increased use of expletives one at a time. 489 F.3d, at 460. But even in the absence of evidence, the agency’s predictive
judgment (which merits deference) makes entire sense. To predict that complete immunity for fleeting expletives, ardently desired by
policy was not actually a per se rule against liability for isolated expletives and that the new policy is a presumption of indecency for certain
words. This description of the prior agency policy conflicts with the broadcasters’ own prior position in this case. See, e.g., Brief in Opposition
for Respondent Fox Television Stations, Inc., et al. 4 (“For almost 30 years following Pacifica, the FCC did not consider fleeting, isolated or
inadvertent expletives to be indecent”). And we find no basis for the contention that the Commission has now adopted a presumption of
indecency; its repeated reliance on context refutes this claim.
important,” Pacifica, supra, at 750, 98 S.Ct. 3026, and we find no basis in the Administrative Procedure Act for mandating anything different.
E. The Dissents’ Arguments
Justice BREYER purports to “begin with applicable law,” post, at 1829, but in fact begins by stacking the deck. He claims that the FCC’s status
as an “independent” agency sheltered from political oversight requires courts to be “all the more” vigilant in ensuring “that major policy
decisions be based upon articulable reasons.” Post, at 1829, 1829 – 1830. Not so. The independent agencies are sheltered not from politics but
FN4. A Subcommittee of the FCC’s House oversight Committee held hearings on the FCC’s broadcast indecency enforcement on
January 28, 2004. “Can You Say That on TV?”: An Examination of the FCC’s Enforcement with respect to Broadcast Indecency,
Hearing before the Subcommittee on Telecommunications and the Internet of the House Committee on Energy and Commerce,
108th Cong., 2d Sess. Members of the Subcommittee specifically “called on the full Commission to reverse [the staff ruling in the
Golden Globes case]” because they perceived a “feeling amongst many Americans that some broadcasters are engaged in a race to
the bottom, pushing the decency envelope to distinguish themselves in the increasingly crowded entertainment field.” Id., at 2
(statement of Rep. Upton); see also, e.g., id., at 17 (statement of Rep. Terry), 19 (statement of Rep. Pitts). They repeatedly
expressed disapproval of the FCC’s enforcement policies, see, e.g., id., at 3 (statement of Rep. Upton) (“At some point we have to
ask the FCC: How much is enough? When will it revoke a license?”); id., at 4 (statement of Rep. Markey) (“Today’s hearing will allow
FN5. Justice STEVENS accuses us of equating statements made in a congressional hearing with the intent of Congress. Post, at 1826,
n. 3. In this opinion, we do not. The intent of the full Congress (or at least a majority of each House) is thought relevant to the
interpretation of statutes, since they must be passed by the entire Congress. See U.S. Const., Art. I, § 7. It is quite irrelevant,
FN6. The Administrative Procedure Act defines “agency” to mean “each authority of the Government of the United States,” 5 U.S.C.
§ 551(1), but specifically excludes “the Congress,” § 551(1)(A). The Court of Appeals for the District of Columbia Circuit has
“interpreted [this] exemption for ‘the Congress’ to mean the entire legislative branch,” Washington Legal Foundation v. United
States Sentencing Comm’n, 17 F.3d 1446, 1449 (1994); see also Ethnic Employees of Library of Congress v. Boorstin, 751 F.2d 1405,
1416, n. 15 (C.A.D.C.1985) (holding that the Library of Congress is not an “agency” under the Act).
700 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
agency did not act arbitrarily. Neither of these omissions could undermine the coherence of the rationale the agency gave, but the dissenters’
evaluation of each is flawed in its own right.
First, both claim that the Commission failed adequately to explain its consideration of the constitutional issues inherent in its regulation, post,
at 1832 – 1835 (opinion of BREYER, J.); post, at 1826 – 1828 (opinion of STEVENS, J.). We are unaware that we have ever before reversed an
FN7. Justice STEVENS criticizes us for “assuming that Pacifica endorsed” the enforcement at issue here. Post, at 1826. We do nothing
of the sort. We rely on the fact that certain aspects of the agency’s decision mirror the context-based approach Pacifica approved,
supra, at 1812 – 1813, but that goes to our holding on administrative law, and says nothing about constitutionality. Justice STEVENS
also argues that heightened deference should be due the FCC’s prior policy because the “FCC’s initial views … reflect the views of the
Congress that delegated the Commission authority to flesh out details not fully defined in the enacting statute.” Post, at 1826. We
news and public affairs. But the Remand Order went out of its way to note that the case at hand did not involve “breaking news coverage,”
and that “it may be inequitable to hold a licensee responsible for airing offensive speech during live coverage of a public event,” 21 FCC Rcd.,
at 13311, ¶ 33. As for the programming that small stations receive on a network “feed”: This will be cleansed by the expensive technology
small stations (by Justice BREYER’s hypothesis) cannot afford.
But never mind the detail of whether small broadcasters are uniquely subject to a great risk of punishment for fleeting expletives. The
FN8. Justice BREYER posits that the FCC would have been required to give more explanation had it used notice-and-comment
rulemaking, which “should lead us to the same conclusion” in this review of the agency’s change through adjudication. Post, at 1838.
Even assuming the premise, there is no basis for incorporating all of the Administrative Procedure Act‘s notice-and-comment
procedural requirements into arbitrary-and-capricious review of adjudicatory decisions. Cf. Vermont Yankee, 435 U.S., at 545-549,
98 S.Ct. 1197.
Case 44.2
513 F.3d 1169
United States Court of Appeals,Tenth Circuit.
CITIZENS’ COMMITTEE TO SAVEOURCANYONS, and Utah Environmental Congress, Plaintiffs-Appellants,
v.
Faye KRUEGER, Forest Supervisor for the Wasatch-Cache National Forest; Brian Ferebee, Forest
helicopter skiing operations in two national forests. Citizens’ Committee to Save Our Canyons and Utah Environmental Congress argue the
decision violated the National Forest Management Act and the National Environmental Policy Act. The district court upheld the Forest Service
permit.
Exercising jurisdiction under the Administrative Procedure Act, 5 U.S.C. §§ 701–706, and 28 U.S.C. § 1331, we affirm.
I. Background
each forest. The Wasatch-Cache and Uinta forest plans were initially adopted in 1985. At that time, the Wasatch-Cache plan expressly
recognized helicopter skiing as “a legitimate use of the National Forest” and called for “one helicopter ski special use permit on the present
permit area.” Supp.App. 669-70. The original Uinta plan also directed the forest *1173 would be open to helicopter skiing under a special use
permit. Supp.App. 666.
The Forest Service revised the Wasatch-Cache plan in 2003. The 2003 plan established the following as forest-wide goals: “Manage for an
672. Specifically regarding helicopter skiing, the 2003 Wasatch-Cache plan provides,
Helicopter skiing will continue to operate as a component of the recreation picture in the Central Wasatch. Helicopter skiing and ski
mountaineering will continue to compete for untracked conditions, and those users seeking quiet in the winter backcountry may continue
to object to helicopter skiing. Information will continue to be available to all backcountry visitors to help them make informed decisions and
avoid conflicts…. It is uncertain, however, whether helicopter skiing can be managed to remain profitable over the long term while
Impact Statement (“EIS”) for the 2000 permit decision, the Forest Service identified that the purpose and need of the proposed action was to
“[c]ontinue one helicopter ski special use permit on the present area.” Supp.App. 626. This need would be met by “[a]llowing for an
economically viable helicopter skiing operation.” Supp.App. 625.
The final EIS for the 2000 permit thus analyzed each option based on whether it would allow WPG to remain economically viable. The 2000
permit the Forest Service ultimately approved set forth a number of restrictions on WPG’s operations, including limiting WPG’s operating
The Forest Service emphasizes the fact that the agency is not responsible for any permittee’s economic viability. While private sector
economic concerns are not necessarily those of the federal government, the success or failure of a permittee may have a considerable
bearing on the Forest Service’s ability to meet the mandate to provide a range of quality recreational opportunities on lands under our
administration.
Aplt. Excerpts of R. [ER] 520. The Forest Service also identified as an unmet need “provid[ing] improved operating efficiencies for WPG relative
1502.21 (encouraging agencies to incorporate material by reference). Particularly, it incorporated the 1999 EIS’s analysis of the safety impact
of WPG’s use of explosives to test slope stability and the noise impacts of WPG’s operations on other backcountry users.
But the draft EIS also distinguished its analysis from the 1999 EIS:
ER 522. It then concluded:
Therefore, the focus of this analysis is on whether or not the terms of a given permit would provide WPG with adequate operational
flexibility to continue to provide a quality heli-skiing experience…. Economic viability, per se, was determined to be outside the scope of the
analysis on the basis of the current Forest Plan direction.
ER 522.
Numerous comments on the draft EIS, including one from SOC, accused the Forest Service of considering WPG’s economic viability, in the
ER 675. Rather,
the Forest Service’s interest is in retaining heli-skiing as a recreational opportunity on the [Wasatch-Cache and Uinta National Forests], as
long as other values are maintained. To meet this objective in a sustainable way, and with the least environmental impact, requires an
efficient heli-ski operation. Thus, while WPG’s economics are not a Forest Service concern, their operational efficiency is.
ER 675.
D. Prior Proceedings
On October 14, 2004, the Forest Service issued a Record of Decision outlining the decision to issue another five-year permit to WPG and
FN1. A skier-day consists of eight runs by one skier. ER 672.
SOC appealed the Record of Decision, and the Regional Forester affirmed. SOC then filed this action in federal district court challenging the
Regional Forester’s decision. SOC argued the Forest Service (1) violated the National Forest Management Act (“NFMA”) because the
permitting decision was inconsistent with the Wasatch-Cache and Uinta forest plans and (2) violated the National Environmental Policy Act
(“NEPA”) by failing adequately to consider potential environmental impacts.
*1176 We agree with the district court that the permitting decision complied with both NFMA and NEPA.
A. Standard of Review
[1] Under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706, which governs judicial review of agency actions, we review the lower
court’s decision de novo. N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir.2001). “Under the APA we set
aside the agency’s action … if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ”Center for Native
Colo. Dep’t of Soc. Serv., 842 F.2d 1158, 1164 (10th Cir.1988).
We turn to whether the Forest Service’s permitting decision in this case complied with NFMA and NEPA.
B. NFMA
[5] NFMA requires the Forest Service to “develop, maintain, and, as appropriate, revise land and resource management plans for units of the
National Forest System.” 16 U.S.C. § 1604(a). All permits the Forest Service issues “for the use and occupancy of National Forest System lands
recreational opportunities as a whole, with a due consideration for the *1177 effect of permit conditions on proposed operations.
The EIS goes to great lengths to explain the role of economic viability in its analysis. It explains, for example, how the 2003 forest plans
changed the focus of the permitting decision from requiring consideration of a permitee’s economic viability to a more balanced approach;
and how, consistent with this change in focus, considering WPG’s operating efficiencies better meets the new forest plans’ goals than
examining WPG’s economic viability-as the Forest Service had prior to issuing the 2000 permit.
permit reflected the “type and level” of heli-skiing it thought appropriately balanced the competing recreational uses in the forests.
Taking the interpretation of the forest plans represented by the EIS as a whole, the EIS and the ultimate permitting decision comply with the
Forest Service’s interpretation of its forest plans. The Forest Service properly considered how particular options would affect the range of
recreational opportunities available in the forests and balanced interests in a way it believed promoted multiple forest uses. Rather than
violating the forest plans, this approach of promoting a variety of recreational opportunities is directly in line with the forest plans’ goals.
Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)); accord Ecology Center, 451 F.3d at 1189.
[7][8][9] NEPA does not, however, “require agencies to elevate environmental concerns over other appropriate considerations …; it requires
only that the agency take a ‘hard look’ at the environmental consequences before taking a major action. In other words, it prohibits
uninformed-rather than unwise-agency action.” Utah Shared Access Alliance, 288 F.3d at 1207-08 (quotation omitted). “The role of the courts
in reviewing compliance with NEPA is simply to ensure that the agency has adequately considered and disclosed the environmental impact of
1. Public Comment
[10] Under NEPA regulations, the agency must publish a draft EIS for public comment and respond to those comments in the final EIS. 40
CHAPTER 44: ADMINISTRATIVE LAW 705
C.F.R. §§ 1502.9, 1503.1, 1503.4. The goal is to “inform decisionmakers and the public of the reasonable alternatives which would avoid or
minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1. “[EISs] shall be written in plain language and
2. Environmental Impact
SOC also argues the permitting decision was arbitrary and capricious for failure to consider important environmental consequences. It claims
the Forest Service insufficiently analyzed the risk to other forest users from WPG’s explosives and the effect on other users of helicopter noise.
In particular, SOC argues the discussion of these issues in the most recent EIS relied on the 1999 EIS, and that backcountry use had increased
so dramatically that the Forest Service needed to develop a new analysis of patterns of backcountry use, and the Forest Service needed to
FN2. The 1999 EIS referred to three reports based on (1) trailhead interviews during the winters of 1993 and 1994 conducted by the
Forest Service and the University of Utah; (2) observations by WPG; and (3) an independent survey. ER 96-97. Interpreting this
information, the Forest Service identified the most heavily used trailheads and areas by backcountry users. ER 98-102, 110. The
Forest Service also identified higher backcountry use on weekends. ER 110-11.
In response to public comments on the absence of hard data, the Forest Service concluded the “updated but still largely qualitative
data might be relevant.” ER 680; see also ER 703 (noting further “study might be appropriate if the Forest Plan directs that recreation use be
capped at certain levels, or if agency direction requires some uses to be given preference over others”). Given the Forest Service’s goal of
balancing recreational opportunities, the qualitative information it obtained-specifically that non-motorized backcountry use was increasing
and was heaviest in areas nearest to population centers and on weekends-enabled it to craft permit terms to minimize conflict between user
groups. For example, the Forest Service considered alternatives and adopted permit terms limiting WPG operations in the most heavily used
all other measures of slope stability have proven inconclusive. ER 118. Using this approach, WPG triggers very few avalanches. ER 118, 130.
Second, the Forest Service imposed additional restrictions on WPG to minimize the risk to others from any potential avalanches. WPG must
conduct testing before 9:00 a.m. or as early as practical, fly over the area before testing, and test only when visibility is at least .5 miles. ER
121, 147, 566, 684, 700. These measures have been effective at mitigating any safety hazard: WPG in its more than thirty years of operation
has never released an avalanche that injured another recreationist; nor have any injuries been associated with WPG’s explosives use, even as
explosives use. Olenhouse, 42 F.3d at 1574.
c. Noise
[15] Lastly, the Forest Service also adequately identified and evaluated the noise generated by WPG’s operations. The EIS identified WPG’s
noise impact as the most commonly reported complaint among other backcountry users and ranked alternatives in terms of potential for
noise generation. ER 532-34, 569. The Forest Service identified the number of helicopters in operation as the major factor affecting noise
The Forest Service also recognized that WPG had managed to reduce conflicts with other users under terms of the 2000 permit. ER 569, 598.
Accordingly, the Forest Service continued to apply permit terms allowing other backcountry users to avoid WPG’s operations if they so desired
and to require WPG to “notify the public of its operating plans a day in advance” through the Utah Avalanche Center recorded information
line and website, WPG’s website, and the Wasatch-Cache National Forest website. ER 624, 701. WPG also must avoid flying through passes
and along ridges occupied by other users when possible. ER 623, 701.
problem, the Forest Service identified an effective means of minimizing conflict by giving other users means to avoid WPG operations by
imposing permit restrictions that make predictable WPG’s operations and consequent noise impacts. Additional empirical data would not
assist the Forest Service in “sharply defining the issues and providing a clear basis for choice among options” for minimizing user conflict. 40
C.F.R. § 1502.14.
* * *
Case 44.3
C.A.D.C.,2010.
United Technologies Corp. v. U.S. Dept. of Defense
601 F.3d 557, 390 U.S.App.D.C. 44
FN1. DCMA is “an agency of the Department of Defense.” Dep’t of Defense Directive No. 5105.64 (Sept. 27, 2000) (establishing
DCMA). All references to DoD herein refer to DCMA as well.
I.
[1][2] This is a “reverse–FOIA” case. See, e.g., Canadian Commercial Corp. v. Dep’t of Air Force, 514 F.3d 37, 39 (D.C.Cir.2008). In enacting FOIA,
the Congress sought to balance the public’s interest in governmental transparency against “ ‘legitimate governmental and private interests
FN3. Alternatively, if a “person” provides information to the United States voluntarily, the information is confidential if “it is of a
kind that the provider would not customarily release to the public.” Critical Mass, 975 F.2d at 880.
A. Sikorsky, Pratt & DCMA
Sikorsky makes helicopters and Pratt makes aircraft engines. Both companies are wholly owned by United Technologies Corporation. Both
have various foreign and domestic military and civilian customers and both sell their products to the United States.
DCMA monitors defense contractors, including Sikorsky and Pratt, to ensure they satisfy their contractual obligations when providing services
and supplies to the United States. It keeps a regular presence at Sikorsky’s and Pratt’s facilities. If it discovers a problem, it notifies the
contractor and may issue a “Corrective Action Request” (CAR) or an audit report to the contractor to remedy the problem.
1. Sikorsky FOIA Request
In March 2004 a New Haven, Connecticut television reporter submitted a FOIA request to the regional DCMA office (DCMA East) for, in
FN4. The reporter also requested Sikorsky’s responses to the CARs but DCMA ultimately decided not to release them. Those
documents are not part of this appeal.
FN5. DoD regulations provide, in relevant part, “If the official designated by the DoD Component to make initial determinations on
requests for records declines to provide a record because the official considers it exempt under one or more of the exemptions of
the FOIA, that decision may be appealed by the requester, in writing, to a designated appellate authority.” DoD Regulation 5400.7-R,
C5.3.1 (Sept.1998), available at http:// www. dtic. mil/ whs/ directives/ corres/ pdf/ 540007 r. pdf.
DCMA’s Office of General Counsel then notified Sikorsky by letter that it planned to release the CARs, stating DCMA’s new position that none
of them fell under Exemption 4. Sikorsky disagreed. Citing National Parks, Sikorsky argued that Exemption 4 applied because the documents’
“release would likely cause Sikorsky substantial competitive harm” and would “significantly impair DCMA’s future ability to obtain the same
2. Pratt FOIA Request
In December 2004 a Hartford, Connecticut newspaper reporter submitted a FOIA request to DCMA East for (1) a report of a November 2004
DCMA audit of Pratt’s Middletown, Connecticut Engine Center; (2) a CAR that resulted from the audit and (3) any and all other documents
regarding the audit. DCMA East identified documents responsive to the request, including (1) the November 2004 audit report; (2) November
FN6. There are four levels of CARs, increasing in seriousness from Level I to Level IV. DCMA issues a Level III CAR to a contractor’s
“top management to call attention to serious contractual nonconformity.” DCMA Guidebook, Corrective Action Process 2.1,
available at http:// guidebook. dcma. mil/ 226/ 226- 1/ index. cfm.
FN7. DCMA East determined not to release photographs it took during the November 2004 audit or Pratt’s documentary responses
to that audit and to the CAR. It decided that Exemption 4 covered the latter material because Pratt voluntarily made available the
information contained therein and that information was the kind Pratt would not normally release to the public. See Critical Mass,
975 F.2d at 880. Similarly, it decided that Pratt was not required to permit DCMA to take photographs during the audit. See id. The
photographs and Pratt’s responses are not part of this appeal.
2008) (Sikorsky Order); United Techs. Corp., Pratt & Whitney Div. v. Dep’t of Def., C.A. No. 05-02271, at 12-14 (D.D.C. Sept. 22, 2008) (Pratt
Order). According to the court, the gravamen of both complaints was that disclosure would cause “embarrassment or negative publicity,” a
type of harm not recognized under Exemption 4. Sikorsky Order at 13; Pratt Order at 13. The court also held that DCMA’s ability to obtain
similar information in the future would not be so impaired as to render the documents exempt from disclosure. Sikorsky and Pratt timely
appealed.FN8
FN8. We consolidated the appeals sua sponte. Order, United Techs. Corp. v. Dep’t of Def., No. 08-5435 (D.C.Cir. Mar. 5, 2009).
II.
[5][6][7] “We review the district court’s grant of summary judgment de novo.” Canadian Commercial, 514 F.3d at 39. When the district court
(1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). “[W]e do not defer to the
agency’s conclusory or unsupported suppositions.” McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C.Cir.2004).
[8] Exemption 4 covers “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C.
FN9. Sikorsky and Pratt also suggest in passing that the documents contain “trade secrets” under Exemption 4. A trade secret is “a
secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing
of trade commodities … that can be said to be the end product of either innovation or substantial effort.” Pub. Citizen Health
Research Group v. FDA, 704 F.2d 1280, 1288 (D.C.Cir.1983). Ultimately Sikorsky and Pratt label this issue “irrelevant,” Reply Br. 6,
because, to prevent release, they need only establish that the documents contain “confidential” information.
their competitors will use the documents to discredit them in the eyes of current and potential customers. They worry especially that their
competitors will use the information and the accompanying negative publicity to persuade foreign costumers that DoD has found Sikorsky’s
and Pratt’s quality control systems unreliable and, accordingly, their products’ quality suspect. Because foreign customers are unfamiliar with
DoD’s exacting oversight, they reason, those customers will overreact to the disclosed information and Sikorsky’s and Pratt’s reputation will
suffer as a result. Contrary to Sikorsky and Pratt’s contentions, however, Exemption 4 does not protect against this species of harm. Calling
information regarding Sikorsky’s manufacturing process and procedures” is “inextricably intertwined with the quality control information”
included in the CARs and it asserted that “[r]elease of this proprietary information would substantially harm Sikorsky’s competitive position
because its competitors would use this information to their advantage in … adjusting their manufacturing techniques.” Letter from Robert K.
Huffman, Miller & Chevalier, to Richard N. Finnegan, Associate General Counsel, DCMA, at 11 n. 4 (Feb. 11, 2005).FN10 In response, DCMA
simply stated that it had redacted all of the sensitive proprietary information and concluded that disclosure of the remaining information was
not likely to cause the contractors substantial competitive harm.
FN10. Sikorsky and Pratt maintain that, while “the sensitivity of the information may not be obvious to laypersons,” the information
“from the vantage point of experienced competitors in the business … provide[s] invaluable insights.” Appellants’ Br. 22.
FN11. During oral argument the Court inquired about portions of the CARs and November 2004 audit report included in the Sealed
Appendix (SA). [Sealed material redacted.] Both Sikorsky and Pratt argue that competitors, with their expertise and understanding of
esoteric manufacturing processes, will be able to put together this otherwise confidential information and use it to gain a
competitive advantage.
[13] We believe that DCMA failed to provide a reasoned basis for its conclusion to the contrary. To be sure, as it repeatedly stated, mere
B. Impairment
Sikorsky and Pratt also argue that disclosure of the documents would “likely … impair the Government’s ability to obtain necessary
information in the future” and thus run afoul of the impairment prong of National Parks, 498 F.2d at 770; see Critical Mass, 975 F.2d at 878.
Precedent suggests that it may be inappropriate to apply this prong in a reverse-FOIA case. See McDonnell Douglas Corp. v. NASA, 180 F.3d
303, 307 n. 2 (D.C.Cir.1999) (declining to reach issue but noting “one circuit has held that a submitter cannot even raise the government’s