828 F.2d 799 (D.C. Cir. 1987), 86-5436, Center for Auto Safety v. Dole

Docket Nº:86-5436.
Citation:828 F.2d 799
Party Name:CENTER FOR AUTO SAFETY, et al., Appellants v. Elizabeth H. DOLE, Secretary, Department of Transportation, et al.
Case Date:September 08, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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828 F.2d 799 (D.C. Cir. 1987)

CENTER FOR AUTO SAFETY, et al., Appellants


Elizabeth H. DOLE, Secretary, Department of Transportation, et al.

No. 86-5436.

United States Court of Appeals, District of Columbia Circuit

September 8, 1987

Argued April 7, 1987.

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Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-02861).

Howard A. Heffron, with whom Clarence M. Ditlow III, Mary H. Dunlap and Evan W. Johnson, Washington, D.C., were on the brief for appellants.

David W. Allen, Asst. Chief Counsel, Nat. Highway Traffic Safety Admin., Richard K. Willard, Asst. Atty. Gen., Douglas Letter, Appellate Litigation Counsel, Dept. of Justice, Erika Z. Jones, Chief Counsel, Enid Rubenstein and Eileen T. Leahy, Attys., Nat. Highway Traffic Safety Admin., Washington, D.C., were on the brief for appellees.

Before WALD, Chief Judge, MIKVA and BORK, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

Dissenting opinion filed by Circuit Judge BORK.

WALD, Chief Judge:

This case concerns the availability and scope of judicial review of the National Highway Transportation Safety Administration's (NHTSA) decision to deny the Center for Auto Safety's (CAS) 1 petition to reopen an enforcement investigation against the Ford Motor Company for safety defects in automobiles built between 1966 and 1979. The National Traffic and Motor Vehicle Safety Act of 1966, 2 as amended, states that if the Secretary of Transportation makes a final determination that a safety-related defect exists, the Secretary of Transportation "shall order the manufacturer [to recall and remedy] such defect...." 15 U.S.C. Sec. 1412(b). 3 The Act also provides that "[a]ny interested person" may petition the Secretary "to commence a proceeding to determine whether to issue a[ ] [final] order pursuant to section 1412(b)." Id. Sec. 1410a(a). The NHTSA regulations provide that the agency will grant a petition if the agency finds that there is a "reasonable possibility" of a safety-related defect in the manufacturers' cars. 49 C.F.R. Sec. 552.8 (1987). NHTSA's

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regulations also state the decision to grant or deny a petition is to be based on a "technical review" of evidence relevant to the safety issue. Id. Sec. 552.6. In this case, the CAS challenges the Secretary's denial of its petition to reopen as arbitrary and capricious. The District Court found that the Secretary's decision was unreviewable under Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), but, even if reviewable, that the scope of review under Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), must be limited to an examination of the agency's stated reasons for its decision.

We hold that denials of petitions to investigate alleged safety defects under 15 U.S.C. Sec. 1410a and 49 C.F.R. Sec. 552.8 are subject to judicial review under the Administrative Procedure Act (APA) to assure (1) that NHTSA acts according to its own "reasonable possibility" standard and (2) that its finding of no "reasonable possibility" is not "arbitrary" or "capricious." 5 U.S.C. Sec. 706(2)(A). We also hold that in order to conduct review of the agency's finding on the likelihood of a safety-related defect, the court must examine not merely the statement of reasons given by the Administrator, but the evidence compiled in the "technical review," on which the agency relies in making its decision. Consequently, we reverse the decision of the District Court denying and limiting review, and remand for a decision based on the usual standards of review under the APA.


  1. Statutory and Regulatory Framework

    The Motor Vehicle Safety Act establishes certain standards governing the treatment of citizen petitions to investigate alleged safety defects:

    Within 120 days after the filing of a petition ..., the Secretary shall either grant or deny the petition. If the Secretary grants such petition, he shall promptly commence the proceeding requested in the petition. If the Secretary denies such petition he shall publish in the Federal Register his reason for such denial.

    Id. Sec. 1410a(d). Although the Act does not lay down any specific procedure or standard for making petition decisions, it does state that "[t]he Secretary may hold a public hearing or may conduct such investigation or proceeding as he deems appropriate in order to determine whether or not such petition should be granted." Id. Sec. 1410a(c).

    NHTSA has, however, itself promulgated a detailed set of regulations which "establishes procedures for the submission and disposition of petitions filed by interested persons pursuant to [15 U.S.C. Sec. 1410a]." 49 C.F.R. Sec. 552.1 (1987). In relevant part, these regulations stipulate that "[t]he appropriate Associate Administrator conducts a technical review of the petition, to determine whether there is a reasonable possibility that the requested order will be issued at the conclusion of the appropriate proceeding." Id. Sec. 552.6.

    This "technical review" is based on evidence available to NHTSA from one or more potential sources: the petition itself, "information already in the possession of the agency," "the collection of additional information," or the collection of evidence at a "public meeting." Id. Then:

    At the conclusion of the technical review, the Administrator or his delegate determines whether there is a reasonable possibility that the order requested in the petition will be issued at the conclusion of the appropriate proceeding. If such reasonable possibility is found, the petition is granted. If is it not found the petition is denied.

    Id. Sec. 552.8 (emphasis added). Under this regulation, it is undisputed that the petition to open an investigation must be granted if "there is a reasonable possibility that [a safety-related defect exists]," 4 and that the

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    "reasonable possibility" determination is to be based on an analysis of the evidence compiled in the "technical review."

  2. The Relevant Facts of This Case

    This appeal concerns alleged defects in automatic transmissions built between 1966 and 1979 by the Ford Motor Company. Appellants claim that the defects cause Ford cars to disengage from "Park" and roll without warning. On March 6, 1985, they petitioned NHTSA to open an investigation that would lead to an order requiring Ford to remedy the defective transmissions. An earlier NHTSA investigation of similar allegations had been terminated without a final determination on the existence of a defect, when NHTSA and Ford entered a settlement agreement that required Ford to notify owners about the possibility of a defect. Under the settlement agreement, however, NHTSA explicitly reserved the right to commence a new proceeding on the alleged defect if additional facts warranted such action. See Center for Auto Safety v. Lewis, 685 F.2d 656, 661 n. 5 (D.C.Cir.1982). 5 In their March 1985 petition, appellants claimed to have such additional evidence as to warrant the opening of a new investigation on the matter.

    On July 12, 1985, the NHTSA Administrator denied appellants' petition, stating that her review of the evidence in the administrative record, including appellant's petition, new information received from Ford and other car manufacturers, and internal NHTSA accident reports, had failed to "convince[ ]" her "that a final defect determination is now warranted or even likely if further investigation were undertaken." Appellee's Appendix at 35. It is that determination which CAS unsuccessfully sought to have reviewed in the District Court.


    Under the Administrative Procedure Act, NHTSA's denial of appellant's petition is subject to judicial review unless Congress has "affirmatively precluded review" in the Motor Safety Act or unless NHTSA's decision is not governed by a "meaningful" legal standard against which a court can measure its validity. Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). The first exception to APA review, affirmative preclusion by Congress, derives from 5 U.S.C. Sec. 701(a)(1); the second, lack of judicially manageable standards, derives from Sec. 701(a)(2). 6 In Chaney, the Supreme Court observed that "an agency decision not to enforce" usually is not governed by "judicially manageable standards" and "often involves a complicated balancing of a number of factors which are peculiarly within [the agency's] expertise"; therefore it "should be presumed immune from review under Sec. 701(a)(2)." Id. at 830-32, 105 S.Ct. at 1655-56. The Chaney Court, however, also "emphasize[d] that the [nonenforcement] decision is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Id. at 832-33, 105

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    S.Ct. at 1656. It is critical for our purposes to note that Chaney was explicitly based on Sec. 701(a)(2)--the "no law to apply" section of the APA--and in no way implicated Sec. 701(a)(1), the congressional preclusion exception.

  3. The "Law to Apply" in This Case

    The Chaney Court said it was "leaving to one side the problem of whether an agency's rules might under certain circumstances provide courts with adequate guidelines for informed judicial review of decisions not to enforce." Id. at 836, 105 S.Ct. at 1658. This case, however, squarely presents that situation in which an agency's own regulations do contain a "judicially manageable" standard for making nonenforcement decisions. The "reasonable possibility" standard of NHTSA's own regulations clearly requires NHTSA to make a factual judgment about the chances that a safety-related defect exists, based on the evidence compiled during the "technical review" prescribed by 49 C.F.R. Sec. 552.6. This kind of factual judgment is definitely susceptible to judicial review,...

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