Action Alliance of Senior Citizens of Greater Philadelphia v. Sullivan, 87-5251
| Decision Date | 16 April 1991 |
| Docket Number | No. 87-5251,87-5251 |
| Citation | 930 F.2d 77 |
| Parties | 56 Empl. Prac. Dec. P 40,775, 289 U.S.App.D.C. 192, 59 USLW 2646 ACTION ALLIANCE OF SENIOR CITIZENS OF GREATER PHILADELPHIA, et al., Appellants, v. Louis W. SULLIVAN, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-00285).
Burton D. Fretz, with whom Toby S. Edelman and Bruce M. Fried were on the brief, for appellants.
Marleigh D. Dover, Attorney, Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty. and William Kanter, Atty., Dept. of Justice, were on the brief, for appellees. John F. Cordes and Richard K. Willard and Leonard Schaitman, Attys., Dept. of Justice, also entered appearances for appellees.
Robin Talbert was on the brief for amicus curiae urging that the Court remand the regulations to HHS.
Before WALD, RUTH B. GINSBURG and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILLIAMS.
In the Paperwork Reduction Act, 44 U.S.C. Sec. 3501 et seq. (1988), Congress sought "to minimize the Federal paperwork burden for individuals, small businesses, State and local governments, and other persons." Id. Sec. 3501(1). The act requires federal agencies to forward to the Office of Management and Budget "a copy of any proposed rule which contains a collection of information requirement." Id. Sec. 3504(h)(1). If OMB "determines that the collection of information by an agency is unnecessary, for any reason, the agency may not engage in the collection of the information." Id. Sec. 3508. We here consider whether a regulation vetoed by OMB qualifies as an information collection request, in light of Dole v. United Steelworkers of America, 494 U.S. 26, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990).
The Age Discrimination Act of 1975, 42 U.S.C. Sec. 6101 et seq. (1988), made the Secretary of Health and Human Services (actually Health, Education and Welfare, of which a part later became HHS, the term we will use throughout) responsible for promulgating regulations relating to age discrimination. The regulations were to serve as a model for ones to be issued later by each of the various federal agencies that extend federal financial assistance. Id. Sec. 6103. HHS published its final model regulations on June 12, 1979. 44 Fed.Reg. 33,776 (1979). Included was a provision under which each adopting agency would require each of its funding recipients "to complete a written self-evaluation of its compliance under the Act ... [and to] make the self-evaluation available on request to the agency and to the public for a period of 3 years following its completion." 45 CFR Sec. 90.43(b)(1) & (4) (1990). As HHS is itself an agency that extends federal financial assistance, it then proposed HHS-specific regulations that followed its own model, including the self-evaluation provision. 44 Fed.Reg. 55,108 (1979).
After HHS proposed its agency-specific regulations, but before final adoption, OMB exercised its authority under the Federal Reports Act of 1942, 44 U.S.C. Secs. 3501 et seq., predecessor of the Paperwork Act, formally disapproving the self-evaluation provision of the model regulations. See letter from OMB to HHS, dated February 14, 1980, Joint Appendix ("J.A.") 89. HHS then modified the corresponding agency-specific self-evaluation requirement. 1 Under the final HHS-specific regulations a self-evaluation is required only when requested by HHS in conjunction with a compliance review or a complaint investigation. 45 C.F.R. Sec. 91.33(b) (1990).
Action Alliance of Senior Citizens of Greater Philadelphia sued HHS and OMB, claiming among other things that provisions of this sort were not subject to OMB's authority under the Paperwork Act. This court upheld HHS's decision to submit to OMB, and thus indirectly upheld the action of OMB itself. Action Alliance of Senior Citizens of Phil. v. Bowen, 846 F.2d 1449 (D.C.Cir.1988). The Supreme Court granted certiorari and remanded to us for further consideration in light of Steelworkers, which held the Paperwork Act inapplicable to a hazard labelling and disclosure requirement. Action Alliance of Senior Citizens of Phil. v. Sullivan, --- U.S. ----, 110 S.Ct. 1329, 1330, 108 L.Ed.2d 469 (1990). Because we find no inconsistency between Steelworkers and our prior decision, we again uphold HHS's revision of its agency-specific regulations to conform with OMB's disapproval of the self-evaluation provision of the model regulations.
* * * * * * The parties start with a dispute over whether the case is governed by the Paperwork Act or its predecessor, the Federal Reports Act of 1942, the Alliance arguing for the Paperwork Act, the government for the Reports Act. OMB disapproved of the self-evaluation provision of the model regulations in February 1980, before enactment of the Paperwork Act (December 11, 1980), and well before its effective date (April 1, 1981). But the Alliance challenges the final HHS-specific regulations, which were not promulgated until December 28, 1982, long after the Paperwork Act became effective. On the other hand, the Age Discrimination Act required agencies to follow the model regulation, 42 U.S.C. Sec. 6103 (1988), so a case could be made that the controlling date should be that of OMB's ruling (February 14, 1980) or of HHS's adoption of the model regulations (June 12, 1979).
In the end we think it appropriate to sidestep all this. The primary purpose of the Paperwork Act was to make the government-mandated paperwork law clearer and to eliminate the exemptions from the OMB clearance process enjoyed by certain agencies under the Reports Act scheme. See 126 Cong.Rec. 6212 (1980) (remarks of Rep. Horton); 125 Cong.Rec. 16564 (1979) (remarks of Sen. Danforth). The Paperwork Act introduced little (if any) difference in the type of agency action subject to OMB review, and such change as it makes, on the issue on which the Supreme Court remanded, only tends to improve the government's position. See discussion of relevant provisions of the two acts at page 194, below. Thus we will address the issue under the currently effective Paperwork Act, but also note the congruence of the superseded Records Act.
Under the Paperwork Act, OMB's review authority encompasses all "information collection requests." See 44 U.S.C. Sec. 3507 (1988). The act defines such a request as
a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, collection of information requirement, or other similar method calling for the collection of information.
Id. Sec. 3502(11) (1988) (emphasis added). Thus an agency request is subject to OMB disapproval if it embodies either a "recordkeeping requirement" or a "collection of information requirement". A "collection of information" is in turn
the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for ... answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons....
Id. Sec. 3502(4) (emphasis added). And a "recordkeeping requirement" is a "requirement ... to maintain specified records." Id. Sec. 3502(17) (emphasis added). 2
As OMB is the agency entrusted with the administration of the Paperwork Act, Steelworkers, 110 S.Ct. at 933, we are required under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984), to uphold its interpretation unless it is barred by Congress's clear expression or is unreasonable. See also Steelworkers, 110 S.Ct. at 938.
On its face the phrase "recordkeeping requirement" appears to encompass the draft self-evaluation rule. The rule requires a funds recipient to "complete" the "self-evaluation of its [Age Discrimination Act] compliance" and to "make [it] avail able on request to the agency and to the public" for a period of three years. 45 CFR Sec. 90.43(b)(4) (1990). Thus it seems to require the recipient "to maintain specified records".
The self-evaluation regulation also appears to fit the "collection of information" definition. The regulation directs funds recipients "to complete a written self-evaluation of [their] compliance under the [Age Discrimination] Act", and to make that report "available on request to the agency and to the public". 45 CFR Sec. 90.43(b)(4) (1990). This appears to be the "soliciting of facts or opinions by an agency through the use of ... identical reporting or recordkeeping requirements".
The Alliance argues that because "no federal agency has apparently sought to collect information contained in a recipient self-evaluation", Alliance Brief at 15, the self-evaluations are not maintained for agency use, and therefore cannot be "recordkeeping requirements". Even if we assumed that availability to the agency were essential for Paperwork Act review, the self-evaluation regulation meets that test, explicitly requiring the federal funds recipient to "make the self-evaluation available to the agency" as well as to the public. See S.Rep. 1411, 96th Cong., 2d Sess. at 40, U.S.Code Cong. & Admin.News 1980, pp. 6241, 6280 () (emphasis added). Obviously the burden of collecting and maintaining information is not diminished merely...
To continue reading
Request your trial
- Wash. Alliance of Tech. Workers v. U.S. Dep't of Homeland Sec.
-
Simon v. Republic of Hung.
...and in the absence of contrary authority, we do not disturb’ it." United States v. Adewani , 467 F.3d 1340, 1342 (D.C. Cir. 2006) (quoting Action All. of Senior Citizens of Greater Phila. v. Sullivan , 930 F.2d 77, 83 (D.C. Cir. 1991) ); see also Metro. Wash. Airports Auth. Pro. Fire Fighte......
-
Rodriguez v. Pan Am. Health Org.
...the assumption that "action" in 28 U.S.C. § 1605(a)(2) refers to the entire suit. But "action" can refer both to "a ... judicial proceeding," Action , Black's Law Dictionary (11th ed. 2019), and serve as shorthand for a "cause of action," id. (referring to "cause of action" entry); see also......
-
Anacostia Riverkeeper, Inc. v. Jackson
...questions relevant here, and thus that opinion remains a statement of law with respect to those issues. Action Alliance of Senior Citizens v. Sullivan, 930 F.2d 77, 83 (D.C.Cir.1991). While technically correct, this is not an instance—as is often the case—where the Circuit Court upheld a nu......
-
The battle for Portland, Maine.
...Saco River Cellular, Inc. v. FCC, 133 F.3d 25 (D.C. Cir. 1998) (No. 91-1248). (173.) See Action Alliance of Senior Citizens v. Sullivan, 930 F.2d 77, 80 (D.C. Cir. 1991). An interesting question is raised as to the breadth of 1980 PRA protection where someone knowingly files false informati......