Action on Smoking and Health v. C.A.B.

• Decision Date: 30 June 1983
• Docket Number: 79-1095,Nos. 79-1044,79-1754 and 81-2023,s. 79-1044
• Citation: 713 F.2d 795
• Parties: ACTION ON SMOKING AND HEALTH, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. . Order Filed
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 795

713 F.2d 795

230 U.S.App.D.C. 1

ACTION ON SMOKING AND HEALTH, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent.

Nos. 79-1044, 79-1095, 79-1754 and 81-2023.

United States Court of Appeals, District of Columbia Circuit.

Order Filed June 30, 1983.

Printed Opinion Issued Aug. 5, 1983.

As Amended Aug. 5, 1983.

Before WRIGHT and MIKVA, Circuit Judges and BAZELON, Senior Circuit judge.

ORDER

PER CURIAM.

For the reasons set forth in the attached memorandum, petitioner's motion for emergency relief is granted. That portion of ER-1245A that revokes the "unreasonably burdened" language is vacated.

We further order the CAB to republish the "unreasonably burdened" provision of ER-1091 until such time as those provisions may be amended or revoked by proper rulemaking made after new notice and comment proceedings in compliance with the requirements of section 4(b), (c) of the Administrative Procedure Act, 5 U.S.C. § 553(b), (c) (1976).

MEMORANDUM

On January 28, 1983, this court entered its opinion in Action on Smoking and Health [ASH] v. Civil Aeronautics Board, 699 F.2d 1209 (D.C.Cir.1983). ¹ In that case, this court examined, among other issues, a certain portion of ER-1245 that purported to rescind three CAB rules provided in ER-1091 for the protection of non-smokers. The court determined that, because of CAB's failure to provide an adequate "basis and purpose statement" to justify these rescissions, that portion of ER-1245 had been promulgated in violation of section 4(c) of the Administrative Procedure Act.

As a result, the opinion clearly and unequivocally vacated the offending portion of ER-1245. To "vacate," as the parties should well know, means "to annul; to cancel or rescind; to declare, to make, or to render, void; to defeat; to deprive of force; to make of no authority or validity; to set aside." 91 C.J.S. Vacate (1955); see Stewart v. Oneal, 237 F. 897, 906 (6th Cir.1916). Thus, by vacating or rescinding the recissions proposed by ER-1245, the judgment of this court had the effect of reinstating the rules previously in force, i.e., ER-1091, a fact which the CAB appears to concede, see CAB Case Mem. No. 069-L (May 13, 1983) ("the three regulations that the Court of Appeals had reinstated") ("the third reinstated regulation would still be revoked").

Because the effect of this court's judgment in ASH v. CAB was to reinstate the protections of ER-1091, they cannot again be revoked without new rulemaking in accordance with the provisions of section 4 of the Administrative Procedure Act. See 5 U.S.C. § 553 (1976). The APA requires agencies engaging in rulemaking to publish notice of the proposed rule and rulemaking proceedings in the Federal Register and to afford all interested persons an opportunity to participate in the rulemaking process. See id. at § 553(b), (c). Despite this requirement, CAB, without providing new opportunities for notice and comment, has elected to publish a "new" rule, again revoking one of the protections accorded by ER-1091. See Smoking Aboard Aircraft, 48 Fed.Reg. 24,866 (1983) (to be codified at 14 C.F.R. pt. 252) (adopted May 19, 1983; effective July 3, 1983). This "new" rule purports to provide, in response to this court's decision in ASH, "further explanation for its earlier decision ... not to include vague language in its smoking rule prohibiting unreasonable burdens on nonsmokers from breathing tobacco smoke." Id. at 24,866.

CAB attempts to justify its refusal to engage in renewed notice and comment procedures by arguing that, because the court invalidated ER-1245 due to its inadequate explanation of basis and purpose, further explanation, as provided in the "new" rule, should be all that is necessary to remedy the earlier deficiency. See CAB Order No. 83-5-101 (May 19, 1983). In support of this argument, CAB relies heavily upon the language of Williams v. Washington Metropolitan Area Transit Comm'n, 415 F.2d 922, 939-40 (D.C.Cir.1968) (en banc ), cert. denied, 393 U.S. 1081, 89 S.Ct. 860, 21 L.Ed.2d 773 (1969):

[W]here an agency action must be set aside as invalid, but the agency is still legally free to pursue a valid course of action, a reviewing court will ordinarily remand to enable the agency to enter a new order after remedying the defects that vitiated the original action.

However, Williams does not address the steps an agency must take to enter a valid new order to remedy defects in an earlier vacated action. ² An agency This court did not remand the invalid portion of ER-1245 to the CAB for further explanation or for any other agency action. Our failure to do so was no accident. The Administrative Procedure Act requires the agency to "incorporate in the rules adopted a concise general statement of their basis and purpose." See 5 U.S.C. § 553(c) (1976) (emphasis supplied). This language contemplates that the basis and purpose statement will accompany publication of a rule, see American Standard, Inc. v. United States, 602 F.2d 256, 268 (Ct.Cl.1979), not follow the rule long after it has been published. As a result, courts have repeatedly held that post hoc rationalizations "are unacceptable substitutions for a contemporaneous basis and purpose statement." Rodway v. United States Dep't of Agriculture, 514 F.2d 809, 817 (D.C.Cir.1975) (emphasis supplied); accord Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Burlington Truck Lines v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962); SEC v. Chenery, 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943) (Chenery I ); SEC v. Chenery, 332 U.S. 194, 196-97, 67 S.Ct. 1575, 1577-78, 91 L.Ed. 1995 (1946) (Chenery II ); Tabor v. Joint Bd. For Enrollment of Actuaries, 566 F.2d 705, 709-12 (D.C.Cir.1977); KIRO, Inc. v. FCC, 545 F.2d 204, 208 (D.C.Cir.1976).

[230 U.S.App.D.C. 5] cannot remedy a deficiency in one regulation by promulgating a new rule, equally defective for the same ³ or other reasons.

Although, as this court has previously noted, a basis and purpose statement need not be published "at precisely the same moment as the regulations," see Tabor, 566 F.2d at 711 n. 14, "[t]he enquiry must be whether the rules and statement are published close enough together in time so that there is no doubt that the statement accompanies, rather than rationalizes the rules," id. There can be little doubt in this case that the basis and purpose statement adopted on May 19, 1983 and published on June 3, 1983, see 48 Fed.Reg. 24,866 (1983), does not "accompany" ER-1245, a rule that was adopted on September 2, 1981, and published September 16, 1981, see 46 Fed.Reg. 45,934 (1981).

In a transparent attempt to circumvent the problem of post hoc rationalization, the CAB purports to promulgate a "new" rule, ER-1245A, supplying the statement of basis and purpose that ER-1245 lacked and revoking one of the same provisions that ER-1245 attempted unsuccessfully to revoke. See 48 Fed.Reg. at 24,866. However, the CAB has not conducted a new notice and comment rulemaking proceeding but has chosen instead to rely on the record developed with respect to the old rule, ER-1245. See CAB Order No. 83-5-101 (May 19, 1983).

The agency cannot have its proverbial cake and eat it too. If ER-1245A does nothing more than to supply the explanation of basis and purpose absent in ER-1245, then ER-1245A is invalid as a post hoc rationalization. If, on the other hand, ER-1245A is in fact a new rule, then it must be promulgated in accordance with the rulemaking procedures demanded by section 4 of the Administrative Procedure Act, including its notice and comment requirements. See 5 U.S.C. § 553(b), (c) (1976).

Although the Administrative Procedure Act does not establish a "useful life" for a notice and comment record, clearly the life of such a record is not infinite. By the CAB's own admission, adoption of ER-1245 "was the culmination of a rulemaking proceeding that began in 1976 ...." 48 Fed.Reg. at 24,866. If one rulemaking proceeding has culminated and another has begun, then new notice and comment procedures are required. ⁴ See Rodway v. United States Dep't of Agriculture, 514 F.2d 809, 817 (D.C.Cir.1975) ("whole record" in a rulemaking case is "comprised of comments received, hearings held, if any, and the basis and purpose statement").

We do not hold that an agency must start from scratch in every situation in which rules are vacated or remanded due to the absence or inadequacy of their statement of basis and purpose. An exception is provided by the Administrative Procedure Act itself "when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5 U.S.C. § 553(b)(B) (1976). However, this exception does not apply to the present case.

First, ER-1245A contains not a single word of explanation as to why new notice and comment proceedings are impracticable, unnecessary, or contrary to the public interest. See 48 Fed.Reg. 24,866 (1983). CAB Order No. 83-5-101 (May 19, 1983) contains an extended discussion of CAB's reasons for believing it is not legally required to engage in new rulemaking proceedings. However, even if a separate order satisfied the requirements of the section 4(c) exception (and it does not), the only language that suggests a reason for a determination that notice and comment is unnecessary is the Board's observation that "the applicable notice of proposed rulemaking and record are still outstanding .... Where we have decided to explain and affirm our earlier decisions ... it is because we are satisfied with the present record and doubt that further comments would produce any additional light." Id. at 2-3. CAB may not avoid the notice and comment requirements of section 4 simply because the Board questions the utility of those requirements. This court...