The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2005 Decided June 23, 2006
No. 04-5402
CENTER FOR AUTO SAFETY AND
PUBLIC CITIZEN, INC.,
APPELLANTS
v.
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00392)
Bonnie I. Robin-Vergeer argued the cause for appellants.
With her on the briefs was Allison M. Zieve.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, Michael J. Ryan, Assistant U.S. Attorney, and
Lloyd S. Guerci, Assistant Chief Counsel, National Highway
Traffic Safety Administration. R. Craig Lawrence, Assistant
U.S. Attorney, entered an appearance.
Before: RANDOLPH and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Concurring opinion filed by Circuit Judge RANDOLPH.
EDWARDS, Senior Circuit Judge: The National Highway
Traffic Safety Administration Authorization Act of 1991
(“Safety Act” or “Act”), 49 U.S.C. §§ 30,101 et seq. (2000),
allows automakers to initiate voluntary “recalls” when a motor
vehicle or its equipment contains a safety-related defect or does
not comply with applicable safety standards. 49 U.S.C.
§ 30,118(c). Generally, vehicle owners who are afforded recall
notification of a safety-related defect or noncompliance are
entitled to a free remedy from the manufacturer. The National
Highway Traffic Safety Administration (“NHTSA”) administers
the Safety Act and monitors manufacturer-initiated recalls.
Beginning sometime in the mid-1980s, automakers adopted
a practice of initiating “regional recalls.” Under this practice,
when a safety-related defect was caused by exposure to atypical
climatic conditions, automakers gave notification and free
remedies only in regions experiencing the climatic conditions
that caused the identified safety-related defect. For example, if
vehicle components corroded when exposed to salt,
manufacturers limited their recalls to owners in states that used
the most salt on their roads. In 1997, Kenneth N. Weinstein,
NHTSA’s Associate Administrator for Safety Assurance, sent
letters to some major automakers and a trade association,
acknowledging that regional recalls had been authorized in the
past, but stating that the agency now had “concerns” about the
practice. See 1997 Letters from NHTSA to Manufacturers and
Trade Associations, reprinted in Joint Appendix (“J.A.”) 136-
38. In 1998, Kenneth N. Weinstein and other NHTSA officials
sent letters to various motor vehicle manufacturers outlining
NHTSA’s “policy guidelines” for “regional recalls.” See, e.g.,
Generic Version of 1998 Letter from NHTSA to Manufacturers
3
at 1, reprinted in J.A. 80 (hereafter “1998 policy guidelines” or
“guidelines”).
On March 10, 2004, Center for Auto Safety (“CAS”) and
Public Citizen, Inc. (“Public Citizen”) filed a lawsuit in District
Court challenging the “regulatory regime governing regional
recalls established in NHTSA’s 1998 letter to automakers.” Br.
for Appellants at 16. Appellants claimed that the 1998 policy
guidelines constitute a “de facto legislative rule” that violates
the Safety Act, and that, even if regional recalls are permissible
in some circumstances, the policy statement violates the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq.
(2000), “because it is arbitrary and capricious and was
promulgated without public notice and comment.” Br. for
Appellants at 16. The District Court dismissed the complaint for
failure to state a claim. We affirm.
Appellants’ claims are not reviewable. See 5 U.S.C. § 704
(judicial review under APA is limited to final agency action).
For agency action to be “final” and reviewable under the APA,
it must generally “mark the consummation of the agency’s
decisionmaking process” and either determine “rights or
obligations” or result in “legal consequences.” Bennett v. Spear,
520 U.S. 154, 178 (1997) (citations and internal quotation marks
omitted). The disputed 1998 policy guidelines do not establish
any binding rules, and they are not finally determinative of the
issues to which they are addressed. Therefore, the guidelines are
not subject to review. Accordingly, we affirm the judgment of
the District Court.
I. BACKGROUND
A. The Statutory Framework
The statutory provisions at issue in this case were first
enacted by Congress with the passage of the National Traffic
and Motor Vehicle Safety Act of 1966, which sought “to reduce
traffic accidents” by regulating the safety of motor vehicles.
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Pub. L. No. 89-563, 80 Stat. 718, 718 (originally codified at 15
U.S.C. §§ 1381 et seq. (1970)). In 1994, that statute was
repealed, reenacted, and recodified without material change as
part of the National Highway Traffic Safety Administration
Authorization Act of 1991. See Pub. L. No. 103-272, 108 Stat.
745, 1379, 1385 (1994) (repealing); id. at 745, 941-73 (1994)
(reenacting and recodifing without substantive changes).
Administration of the Safety Act has been delegated to the
Secretary of Transportation, who, in turn, has re-delegated his
duties under the Act to NHTSA. See 49 C.F.R. §§ 1.50(a),
501.2(a)(1) (2005).
The Safety Act includes provisions governing situations
when a motor vehicle or its equipment contains a safety-related
defect or does not comply with an applicable safety standard.
See 49 U.S.C. §§ 30,118-30,121. In these situations, the Act
requires manufacturers to issue a “recall,” providing both notice
of the safety-related defect or noncompliance and a free remedy
to owners, purchasers, and dealers of the vehicle. 49 U.S.C.
§§ 30,118-30,120. The Act allows two exceptions to the recall
requirements. First, “[t]he requirement that a remedy be
provided without charge does not apply if the motor vehicle or
replacement equipment was bought by the first purchaser more
than 10 calendar years . . . before notice is given.” 49 U.S.C.
§ 30,120(g)(1). Second, a manufacturer may obtain an
exemption from the remedy requirements if, after providing
notice and opportunity for public comment, NHTSA determines
that “a defect or noncompliance is inconsequential to motor
vehicle safety.” 49 U.S.C. § 30,120(h); see also Exemption for
Inconsequential Defect or Noncompliance, 49 C.F.R. pt. 556
(2005).
A recall is triggered in one of two ways. First, NHTSA may
initiate administrative enforcement proceedings under the Act.
The Act provides as follows:
5
(a) NOTIFICATION BY SECRETARY.–The Secretary of
Transportation shall notify the manufacturer of a motor
vehicle or replacement equipment immediately after
making an initial decision (through testing, inspection,
investigation, or research carried out under this
chapter, examining communications under section
30166(f) of this title, or otherwise) that the vehicle or
equipment contains a defect related to motor vehicle
safety or does not comply with an applicable motor
vehicle safety standard prescribed under this chapter.
The notification shall include the information on which
the decision is based. The Secretary shall publish a
notice of each decision under this subsection in the
Federal Register. Subject to section 30167(a) of this
title, the notification and information are available to
any interested person.
(b) DEFECT AND NONCOMPLIANCE PROCEEDINGS AND
ORDERS.–
(1) The Secretary may make a final decision that a
motor vehicle or replacement equipment contains
a defect related to motor vehicle safety or does not
comply with an applicable motor vehicle safety
standard prescribed under this chapter only after
giving the manufacturer an opportunity to present
information, views, and arguments showing that
there is no defect or noncompliance or that the
defect does not affect motor vehicle safety. Any
interested person also shall be given an
opportunity to present information, views, and
arguments.
(2) If the Secretary decides under paragraph (1) of this
subsection that the vehicle or equipment contains
the defect or does not comply, the Secretary shall
order the manufacturer to–
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(A) give notification under section 30119 of this
title to the owners, purchasers, and dealers of
the vehicle or equipment of the defect or
noncompliance; and
(B) remedy the defect or noncompliance under
section 30120 of this title.
49 U.S.C. § 30,118(a)-(b).
Second, a vehicle manufacturer may voluntarily initiate a
recall. For this alternative, the Act provides as follows:
(c) NOTIFICATION BY MANUFACTURER.–A manufacturer of
a motor vehicle or replacement equipment shall notify
the Secretary by certified mail, and the owners,
purchasers, and dealers of the vehicle or equipment as
provided in section 30119(d) of this section, if the
manufacturer–
(1) learns the vehicle or equipment contains a defect
and decides in good faith that the defect is related
to motor vehicle safety; or
(2) decides in good faith that the vehicle or equipment
does not comply with an applicable motor vehicle
safety standard prescribed under this chapter.
49 U.S.C. § 30,118(c). A manufacturer typically begins a
voluntary recall by filing a “Part 573 Report,” notifying the
agency of its concerns and proposing a remedial program. See
49 C.F.R. § 573.6 (2005); see also 49 C.F.R. § 573.5 (1998)
(reporting requirements for defects and noncompliance between
1996 and 2002). The manufacturer is then required to notify
“each person registered under State law as the owner [of an
affected vehicle] and whose name and address are reasonably
ascertainable by the manufacturer through State records or other
available sources,” 49 U.S.C. § 30,119(d)(1)(A), or, failing that,
“the most recent purchaser known to the manufacturer,” 49
7
U.S.C. § 30,119(d)(1)(B). When a manufacturer undertakes a
voluntary recall, this also entails an obligation to “remedy the
defect or noncompliance.” 49 U.S.C. § 30,120(a)(1).
Even though voluntary recalls are initiated by a
manufacturer, NHTSA retains full authority under the Act to
oversee and regulate any recall. On this score, the statute
provides:
On the motion of the Secretary or on petition of any
interested person, the Secretary may conduct a hearing to
decide whether the manufacturer has reasonably met the
notification requirements under this section. . . . If the
Secretary decides that the manufacturer has not reasonably
met the notification requirements, the Secretary shall order
the manufacturer to take specified action to meet those
requirements and may take any other action authorized
under this chapter.
49 U.S.C. § 30,118(e); accord 49 U.S.C. § 30,120(e) (providing
same procedure for remedy requirements); see Petitions for
Hearings on Notification and Remedy of Defects, 49 C.F.R. pt.
557 (2005).
During any recall, the notification given by a manufacturer
must provide vehicle owners with, inter alia, detailed
information about the defect or noncompliance, the risk to motor
vehicle safety, and the measures to be taken to remedy the
problem. 49 U.S.C. § 30,119(a); see 49 C.F.R. § 577.5(e)-(g)
(2005). NHTSA has made it clear that recall notifications
should “adequately inform and effectively motivate owners of
potentially defective or noncomplying motor vehicles or items
of replacement equipment to have such vehicles or equipment
inspected and, where necessary, remedied as quickly as
possible.” 49 C.F.R. § 577.2 (2005).
The Safety Act allows “[a]ny interested person” to “file a
petition with [NHTSA] requesting the [agency] to begin a
8
proceeding . . . to decide whether to issue an order under section
30118(b)” of the statute. 49 U.S.C. § 30,162(a)(2); see Petitions
for Rule-Making, Defect, and Noncompliance Orders, 49 C.F.R.
pt. 552 (2005). Members of the public are also permitted to
petition for a hearing to determine whether a manufacturer’s
recall has reasonably met the notification or remedy
requirements of the Act. See 49 U.S.C. §§ 30,118(e), 30,120(e).
At such hearings, “[a]ny interested person may make written and
oral presentations of information, views, and arguments on
whether the manufacturer has reasonably met” its statutory
obligations. Id.
B. Regional Recalls
Beginning in the mid-1980s, automakers began initiating
voluntary recalls on a geographically limited basis when a defect
or noncompliance was caused by atypical climatic conditions.
For many years, these regional recalls raised no objections from
NHTSA. In June 1997, however, NHTSA’s Associate
Administrator for Safety Assurance, Kenneth N. Weinstein, sent
a letter to Ford Motor Company (“Ford”), explaining that the
agency “ha[d] concerns over several recent safety recalls
conducted by Ford Motor Company (Ford) which were limited
in terms of their geographic scope.” Letter from Kenneth N.
Weinstein, Associate Administrator for Safety Assurance,
NHTSA, to L.W. Camp, Director of Automobile Safety and
Engineering Standards, Ford (June 9, 1997), reprinted in J.A.
137. A month later the agency sent a letter to Chrysler
Corporation (“Chrysler”). See Letter from Kenneth N.
Weinstein, Associate Administrator for Safety Assurance,
NHTSA, to Susan M. Cischke, Executive Director for Vehicle
Compliance and Safety Affairs, Chrysler (July 9, 1997),
reprinted in J.A. 136 (advising the company of NHTSA’s
“concerns over recent safety recalls conducted by certain
manufacturers”). A similar letter was sent to the Association of
International Automobile Manufacturers on July 10, 1997. See
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Letter from Kenneth N. Weinstein, Associate Administrator for
Safety Assurance, NHTSA, to Philip A. Hutchinson, President
and CEO, Association of International Automobile
Manufacturers, Inc. (July 10, 1997), reprinted in J.A. 138.
A year later, in 1998, NHTSA sent letters to Ford and
Chrysler outlining a regional recall policy. See Letter from
Kenneth N. Weinstein, Associate Administrator for Safety
Assurance, NHTSA, to L.W. Camp, Director of Automotive
Safety and Engineering Standards, Ford (Aug. 12, 1998),
reprinted in J.A. 142; Letter from Kenneth N. Weinstein,
Associate Administrator for Safety Assurance, NHTSA, to
Susan M. Cischke, Executive Director for Vehicle Compliance
and Safety Affairs, Chrysler (Sept. 4, 1998), reprinted in J.A.
149. These two letters, and one sent to Volkswagen in June of
1999, Letter from Jonathan D. White, Chief of Recall Analysis
Division, Office of Defects Investigation, NHTSA, to Andreas
H. Steglich, Product Compliance Team Leader, Volkswagen of
America, Inc. (June 18, 1999), reprinted in J.A. 256,
incorporated the text of the “generic version” of the 1998 letter
to automakers. See Generic Version of 1998 Letter from
NHTSA to Manufacturers at 1, reprinted in J.A. 80 (setting forth
“policy guidelines” with respect to regional recalls).
The 1998 policy guidelines distinguish between
“circumstances: (1) when the consequences of the defect occur
as the result of a short-term or single exposure to a particular
meteorological condition; and (2) when the consequences of the
defect generally occur only after long-term or recurring
exposure to environmental conditions.” Id. The guidelines
indicate that, as to the former, a regional recall generally is “not
appropriate.” Id. However, they also indicate that NHTSA
may, “in some cases,” be willing to modify the manufacturer’s
notification duties. Id. at 2, reprinted in J.A. 81. Thus, the
guidelines state that “the agency may act favorably on requests
by manufacturers to include language in the letters to owners of
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vehicles in ‘low-risk’ states . . . that indicates that the defect is
unlikely to cause a safety problem if the vehicle is not exposed
to the meteorological condition at issue.” Id. As to defects that
arise from long-term exposure, the guidelines say that “if the
manufacturer is able to demonstrate that the relevant
environmental factor (or factors) is significantly more likely to
exist in the area proposed for inclusion than in the rest of the
United States, NHTSA will approve a regional recall.” Id.
There is a caveat that “[t]he manufacturer’s justification for such
a proposal should be based on objective factors, and not merely
on differences in complaint rates among the states.” Id.
The guidelines also indicate that, in pursuing a regional
recall, “manufacturers must assure that vehicles from outside the
designated area that experience a problem due to the defect are
taken care of appropriately.” Id. Finally, the guidelines state
that the agency “[has] determined that, at a minimum, vehicles
originally sold in or currently registered in [20 designated] states
[and the District of Columbia] must be included in any regional
recall related to corrosion caused by road salt.” Id. at 2-3,
reprinted in J.A. 81-82. The guidelines conclude with the
following words of caution: “[M]anufacturers must discuss all
proposals to limit the geographic scope of any recall with
[Office of Defects Investigation] prior to making any public
statements regarding that scope.” Id. at 3, reprinted in J.A. 82.
C. The Legal Challenge in this Case
On May 15, 2002, CAS wrote to NHTSA’s new
Administrator, taking the agency to task for its policy of
“approving” regional recalls. Letter from Clarence M. Ditlow,
Executive Director, CAS, to Jeffrey Runge, Administrator,
NHTSA (May 15, 2002), reprinted in J.A. 216. The agency
responded on November 1, 2002, defending the 1998 policy
guidelines and attaching the generic version of the letters it sent
to automakers. Letter from Kenneth N. Weinstein, Associate
Administrator for Enforcement, NHTSA, to Clarence M. Ditlow,
11
Executive Director, CAS (Nov. 1, 2002), reprinted in J.A. 221.
CAS followed up with a second letter on September 10, 2003.
Letter from Clarence M. Ditlow, Executive Director, CAS, to
Jeffrey Runge, Administrator, NHTSA (Sept. 10, 2003),
reprinted in J.A. 226. The agency did not respond to CAS’
second letter.
Subsequently, on March 10, 2004, CAS and Public Citizen
filed suit in District Court challenging the 1998 policy
guidelines and the regulatory regime governing regional recalls.
They maintained that the agency’s policy is contrary to law,
because it violates the mandates of the Safety Act, constitutes a
de facto legislative rule issued without the opportunity for public
notice and comment, and is arbitrary and capricious. Ctr. for
Auto Safety, Inc. v. Nat’l Highway Traffic Safety Admin., 342 F.
Supp. 2d 1, 8 (D.D.C. 2004). On June 24, 2004, appellants
moved for summary judgment. On July 7, 2004, NHTSA
responded with a motion to dismiss, on the ground that, inter
alia, the complaint failed to state a claim upon which relief can
be granted.
On September 30, 2004, the District Court granted the
agency’s motion to dismiss, and denied appellants’ motion for
summary judgment. Id. at 3. The District Court concluded that
the Safety Act does not prohibit regional recalls. Id. at 16. It
also found that NHTSA’s 1998 guidelines set out the agency’s
policy, not a binding rule, and thus compliance with the APA’s
notice-and-comment procedures was not required. Id. at 22; see
5 U.S.C. § 553(b)(A) (providing that notice-and-comment
rulemaking procedures “[do] not apply . . . to . . . general
statements of policy”). Finally, the District Court held that
plaintiffs’ arbitrary and capricious claim failed, because the
1998 policy guidelines did not constitute final agency action.
Ctr. for Auto Safety, 342 F. Supp. 2d at 24.
On October 29, 2004, CAS and Public Citizen filed a timely
notice of appeal. Their challenge here, as below, is not about
12
NHTSA’s threatening enforcement actions against Ford,
Chrysler, Volkswagen, or any other automaker. Rather, the
entire case is focused on the agency’s 1998 policy guidelines.
The parties agree that the generic version of the letters that were
sent to motor vehicle manufacturers (i.e., “the 1998 policy
guidelines”) forms the basis of NHTSA’s policy with respect to
regional recalls.
Oral argument was held on December 9, 2005. Thereafter,
we ordered the parties to submit supplemental briefing to
address the nature and extent of the authority of Kenneth N.
Weinstein, the Associate Administrator for Safety Assurance
and apparent author of the 1998 policy guidelines. The parties
were asked to address whether Weinstein “had authority to issue
policy guidance for the Administration.” Ctr. for Auto Safety v.
Nat’l Highway Traffic Safety Admin., No. 04-5402, Order (D.C.
Cir. Dec. 13, 2005).
II. ANALYSIS
A. Standard of Review
If we were to assume that the matter under review is the
District Court’s grant of appellee’s motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure, then the
standard of review would be de novo. See Reliable Automatic
Sprinkler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726,
731 (D.C. Cir. 2003). However, Rule 12(b) states that, if, on a
motion to dismiss for failure to state a claim upon which relief
can be granted, “matters outside the pleading are presented to
and not excluded by the court, the motion shall be treated as one
for summary judgment and disposed of as provided in Rule 56,
and all parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56.” FED.
R. CIV. P. 12(b). In this case, the District Court considered
“matters outside the pleading” in granting the agency’s motion
to dismiss. In so doing, it effectively treated the motion as one
13
for summary judgment. Both parties had a “reasonable
opportunity to present all material made pertinent to such a
motion by Rule 56.” See FED. R. CIV. P. 56. Indeed, the
external materials relied upon by the District Court were
submitted by appellants as declarations and exhibits in support
of their motion for summary judgment. And none of these
materials raise any genuine issue of material fact. See FED. R.
CIV. P. 56(c). Therefore, “[w]e may . . . ‘characterize[ ]’ the
district court’s dismissal as a grant of summary judgment under
Rule 56(c) and affirm.” Fraternal Order of Police v. Williams,
375 F.3d 1141, 1144 (D.C. Cir. 2004) (quoting Mazaleski v.
Treusdell, 562 F.2d 701, 708 (D.C. Cir. 1977)) (second
alteration in original); see also Yates v. District of Columbia,
324 F.3d 724, 725 (D.C. Cir. 2003) (per curiam) (“resulting
order” from motion to dismiss “must be treated [on appeal] as a
grant of summary judgment under Rule 56” because “parties
submitted, and [court] considered, matters outside the
pleadings”).
“We review de novo a district court’s decision to grant
summary judgment, viewing the evidence in the light most
favorable to the non-moving party. A party is entitled to
summary judgment only if there is no genuine issue of material
fact and judgment in the movant’s favor is proper as a matter of
law.” U.S. ex rel. Bettis v. Odebrecht Contractors, 393 F.3d
1321, 1325 (D.C. Cir. 2005) (citing Kaempe v. Myers, 367 F.3d
958, 965-66 (D.C. Cir. 2004)).
B. Decisional Parameters for Determining When Agency
Action Is “Final” and Whether Policy Guidelines
Constitute Binding Rules
The District Court had jurisdiction over appellants’ claims
pursuant to 28 U.S.C. § 1331 (2000). Appellants’ cause of
action rests solely on the APA. Under the APA, “[a]gency
action made reviewable by statute and final agency action for
which there is no other adequate remedy in a court are subject
14
to judicial review.” 5 U.S.C. § 704 (emphasis added). As we
noted in Reliable Automatic Sprinkler, “in cases such as this
one, in which judicial review is sought under the APA rather
than a particular statute prescribing judicial review, the
requirement of final agency action is not jurisdictional.” 324
F.3d at 731 (relying on Califano v. Sanders, 430 U.S. 99, 107
(1977) (holding “that the APA does not afford an implied grant
of subject-matter jurisdiction permitting federal judicial review
of agency action”)); see also Md. Dep’t of Human Res. v. Dep’t
of Health & Human Servs., 763 F.2d 1441, 1445 n.1 (D.C. Cir.
1985) (“The Supreme Court has clearly indicated that the
Administrative Procedure Act itself, although it does not create
subject-matter jurisdiction, Califano v. Sanders, 430 U.S. 99
(1977), does supply a generic cause of action in favor of persons
aggrieved by agency action.”); R.I. Dep’t of Envtl. Mgmt. v.
United States, 304 F.3d 31, 40 (1st Cir. 2002) (same). Rather,
§ 704 limits causes of action under the APA, as does, for
example, § 706(1) (“reviewing court shall . . . compel agency
action unlawfully withheld or unreasonably delayed”), see
Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 76-77
(D.C. Cir. 1984). In this case, our focus is on § 704, because the
principal disagreement between the parties centers on this
provision of the APA.
In order to sustain their position, appellants must show that
the 1998 policy guidelines either (1) reflect “final agency
action,” 5 U.S.C. § 704, or (2) constitute a de facto rule or
binding norm that could not properly be promulgated absent the
notice-and-comment rulemaking required by § 553 of the APA.
These two inquiries are alternative ways of viewing the question
before the court. Although, if appellants could demonstrate the
latter proposition they would implicitly prove the former,
because the agency’s adoption of a binding norm obviously
would reflect final agency action. In either case, appellants
would have a viable cause of action.
15
Agency action is generally “final” and reviewable if two
conditions are satisfied:
First, the action must mark the “consummation” of the
agency’s decisionmaking process – it must not be of a
merely tentative or interlocutory nature. And second, the
action must be one by which “rights or obligations have
been determined,” or from which “legal consequences will
flow.”
Bennett, 520 U.S. at 177-78 (citations omitted). See 5 U.S.C.
§ 704; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990)
(“When . . . review is sought not pursuant to specific
authorization in the substantive statute, but only under the
general review provisions of the APA, the ‘agency action’ in
question must be ‘final agency action.’ See 5 U.S.C. § 704.”);
Reliable Automatic Sprinkler, 324 F.3d at 731 (“If there was no
final agency action here, there is no doubt that appellant would
lack a cause of action under the APA.”).
“In determining whether an agency has issued a binding
norm or merely” an unreviewable “statement of policy, we are
guided by two lines of inquiry.” See Wilderness Soc’y v.
Norton, 434 F.3d 584, 595 (D.C. Cir. 2006). One line of
analysis considers the effects of an agency’s action, inquiring
whether the agency has “(1) impose[d] any rights and
obligations, or (2) genuinely [left] the agency and its
decisionmakers free to exercise discretion.” CropLife Am. v.
EPA, 329 F.3d 876, 883 (D.C. Cir. 2003) (citation and internal
quotation marks omitted). The language used by an agency is
an important consideration in such determinations. See Cmty.
Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) (per
curiam). The second line of analysis looks to the agency’s
expressed intentions. CropLife Am., 329 F.3d at 883. This
entails a consideration of three factors: “(1) the [a]gency’s own
characterization of the action; (2) whether the action was
published in the Federal Register or the Code of Federal
16
Regulations; and (3) whether the action has binding effects on
private parties or on the agency.” Molycorp, Inc. v. EPA, 197
F.3d 543, 545 (D.C. Cir. 1999).
As the case law reveals, it is not always easy to distinguish
between those “general statements of policy” that are
unreviewable and agency “rules” that establish binding norms
or agency actions that occasion legal consequences that are
subject to review. Compare Nat’l Ass’n of Home Builders v.
Norton, 415 F.3d 8, 14, 16 (D.C. Cir. 2005) (holding that there
was no final agency action where the language of the challenged
Protocols was permissive and “the scope of a [regulated party’s]
liability under . . . [the statute] remains exactly as it was before
the Protocols’ publication”); Pac. Gas & Elec. Co. v. Fed.
Power Comm’n, 506 F.2d 33, 38, 48 (D.C. Cir. 1974) (noting
that a policy statement that “does not establish a binding norm,”
and “is not finally determinative of the issues or rights to which
it is addressed,” is not subject to review) (citation and internal
quotation marks omitted), with Barrick Goldstrike Mines, Inc.
v. Browner, 215 F.3d 45, 47-49 (D.C. Cir. 2000) (holding, inter
alia, that an EPA guidance, which created new reporting
requirements for regulated entities, as a directive with legal
consequences, amounted to final agency action).
Nevertheless, the distinction between “general statements
of policy” and “rules” is critical. If the 1998 policy guidelines
constitute a de facto rule, as appellants claim, then they would
clearly meet Bennett’s test for final agency action and § 553 of
the APA would require the agency to afford notice of a proposed
rulemaking and an opportunity for public comment prior to
promulgating the rule. 5 U.S.C. § 553. If the guidelines are no
more than “general statements of policy,” as NHTSA would
have it, then they would neither determine rights or obligations
nor occasion legal consequences and, thus, would be exempt
from the APA’s notice-and-comment requirement. 5 U.S.C.
§ 553(b)(A).
17
There is an important caveat with respect to “general
statements of policy” that bears mention here: if NHTSA
applies the 1998 policy guidelines in a particular situation, it
must be prepared to support the policy. “An agency cannot
escape its responsibility to present evidence and reasoning
supporting its substantive rules by announcing binding
precedent in the form of a general statement of policy.” Pac.
Gas & Elec., 506 F.2d at 38-39. This principle may apply even
when an agency merely threatens enforcement of a guideline, if
the guideline is binding on its face or in practice. See, e.g.,
Barrick Goldstrike Mines, 215 F.3d at 47-50. But the instant
case does not involve a challenge to threats of enforcement by
NHTSA. Indeed, the petitioners in this case have not even
petitioned the agency pursuant to 49 U.S.C. § 30,162(a)(2) to
take enforcement action against any automaker.
On the record here, using any of the foregoing lines of
analysis, NHTSA’s 1998 policy guidelines do not reflect final
agency action and they do not constitute binding rules.
C. The 1998 Policy Guidelines Do Not Reflect “Final
Agency Action” and They Do Not Constitute Binding
Rules
As noted above, under Bennett, the 1998 policy guidelines
cannot be viewed as “final agency action” under § 704 of the
APA unless they “mark the consummation of the agency’s
decisionmaking process” and either determine “rights or
obligations” or result in “legal consequences.” Bennett, 520
U.S. at 178 (citations and internal quotation marks omitted). It
is possible to view the guidelines as meeting the first part of the
Bennett test, but not the second. The guidelines are nothing
more than general policy statements with no legal force. They
do not determine any rights or obligations, nor do they have any
legal consequences. Therefore, the guidelines cannot be taken
as “final agency action,” nor can they otherwise be seen to
constitute a binding legal norm.
18
There is no doubt that the guidelines reflect NHTSA’s
views on the legality of regional recalls. But this does not
change the character of the guidelines from a policy statement
to a binding rule. Indeed, the case law is clear that we lack
authority to review claims under the APA “where ‘an agency
merely expresses its view of what the law requires of a party,
even if that view is adverse to the party.’” Indep. Equip.
Dealers Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004)
(Roberts, J.) (quoting AT&T Co. v. EEOC, 270 F.3d 973, 975
(D.C. Cir. 2001)).
In AT&T Co., we were asked to resolve competing
interpretations of the scope of an employer’s obligation under
the Pregnancy Discrimination Act of 1979. AT&T believed that
it was not statutorily required, when calculating pension
benefits, to give former employees work credit for pregnancy
leaves taken prior to the passage of the act in 1979. AT&T Co.,
270 F.3d at 974. EEOC’s Compliance Manual took the opposite
view, and the agency had issued a Letter of Determination,
stating its view that AT&T had thereby violated the act as to two
employees. Id. The company filed suit seeking judicial
imprimatur of its legal view. Id. at 975. AT&T conceded that
the Letter of Determination was not final agency action, but
argued, inter alia, “that the Commission [took] final action
when it embrace[d] one view of the law and reject[ed] another.”
Id. We were not persuaded:
Although there are . . . particular circumstances in which an
agency’s taking a legal position itself inflicts injury or
forces a party to change its behavior, such that taking that
position may be deemed final agency action, this is not such
a case. The Commission has not inflicted any injury upon
AT&T merely by expressing its view of the law – a view
that has force only to the extent the agency can persuade a
court to the same conclusion. Unlike the EPA Guidance at
issue in Appalachian Power [Co. v. EPA, 208 F.3d 1015
19
(D.C. Cir. 2000)], the EEOC Compliance Manual does not
affect the regulated community. Whereas “EPA officials in
the field [were] bound to apply” the EPA Guidance, as
discussed below the EEOC is not bound to sue AT&T.
Id. at 975-76 (citations and accompanying parentheticals
omitted) (second alteration in original).
As in AT&T Co., this case involves competing
interpretations of the scope of regulated parties’ statutory
obligations. Auto manufacturers have in effect notified NHTSA
that they believe that geographically limited recalls satisfy their
statutory obligations under 49 U.S.C. § 30,118(c), if the safety-
related defect or noncompliance results from exposure to
extreme weather conditions. NHTSA has given some
endorsement to regional recalls, delineating its views in the
contested 1998 policy guidelines. And appellants contend that
the Safety Act prohibits denying owners of defective motor
vehicles notice and free remedy solely on the basis of their
vehicle’s state of original sale or current registration.
As with EEOC’s position in AT&T Co., NHTSA’s position
here is nothing more than a privileged viewpoint in the legal
debate. The guidelines do not purport to carry the force of law.
They have not been published in the Code of Federal
Regulations. They do not define “rights or obligations.” They
are labeled “policy guidelines,” not rules. See Generic Version
of 1998 Letter from NHTSA to Manufacturers at 1, reprinted in
J.A. 80 (setting forth “policy guidelines” with respect to
“regional recalls”). And they read as guidelines, not binding
regulations.
For example, the generic letter states: “NHTSA has
concluded that, in general, it is not appropriate for a
manufacturer to limit the scope of a recall to a particular
geographical area where the consequences of the defect can
occur after a short-term exposure to a meteorological condition.”
20
Id. (emphasis added). The language relating to notification
obligations for short-term exposure defects is similarly
conditional:
NHTSA believes that in some cases it may be permissible
for a manufacturer to modify the content of the owner
notification letter that is sent to owners in those areas.
Therefore, notwithstanding 49 C.F.R. 577.8
(“Disclaimers”), the agency may act favorably on requests
by manufacturers to include language in the letters to
owners of vehicles in “low-risk” states . . . that indicates
that the defect is unlikely to cause a safety problem if the
vehicle is not exposed to the meteorological condition at
issue. However, the letter must make it clear that the owner
will be able to obtain a free remedy for the defect if he or
she wishes.
Id. at 1-2, reprinted in J.A. 80-81 (emphasis added); see also id.
at 2, reprinted in J.A. 81 (“[Office of Defects Investigation]
would not normally request a manufacturer to conduct a follow-
up notification campaign . . . .”) (emphasis added). Likewise,
the language describing the agency’s position on regional recalls
for safety-related defects resulting from long-term exposure to
environmental conditions is only general in its prescriptions.
See id. at 2, reprinted in J.A. 81 (“[I]f the manufacturer is able
to demonstrate that the relevant environmental factor (or factors)
is significantly more likely to exist in the area proposed for
inclusion than in the rest of the United States, NHTSA will
approve a regional recall.”). And, as indicated above, the
guidelines notably conclude in a way to emphasize that the
agency’s position on regional recalls remains flexible. Id. at 3,
reprinted in J.A. 82 (“[M]anufacturers must discuss all
proposals to limit the geographic scope of any recall with
[Office of Defects Investigation] prior to making any public
statements regarding that scope.”).
21
The 1998 policy guidelines certainly do not, as appellants
contend, “read[ ] like a ukase.” Appalachian Power Co. v. EPA,
208 F.3d 1015, 1023 (D.C. Cir. 2000). NHTSA has not
commanded, required, ordered, or dictated. Cf. id. And there is
nothing in the record to indicate that officials in NHTSA’s
Office of Defects Investigation are bound to apply the guidelines
in an enforcement action. The agency remains free to exercise
discretion in assessing proposed recalls and in enforcing the Act.
CropLife Am., 329 F.3d at 883. There is also nothing to indicate
that automakers can rely on the guidelines as “a norm or safe
harbor by which to shape their actions,” see Gen. Elec. Co. v.
EPA, 290 F.3d 377, 383 (D.C. Cir. 2002) (citation and internal
quotation marks omitted), which might suggest that the
guidelines are binding as a practical matter, see id. And it does
not matter that agency officials have encouraged automakers to
comply with the guidelines. See Reliable Automatic Sprinkler,
324 F.3d at 733 (“The agency’s letter to [company officials]
merely stated an ‘intention of the Compliance staff to make the
preliminary determination that these sprinklers present a
substantial product hazard.’ We do not know whether the
agency will bring administrative enforcement proceedings
against [the company].”) (citation omitted).
Our conclusion that the guidelines amount to a general
statement of policy, rather than a binding rule, is further fortified
by the limited authority of the Associate Administrator for
Safety Assurance. The agency concedes that Kenneth N.
Weinstein, the apparent author of the guidelines, had authority
to issue policy guidance for “NHTSA’s enforcement program
for vehicle safety.” Initial Supplemental Br. for Appellee at 1.
The agency argues, however, that neither Weinstein, nor anyone
else in the position of Associate Administrator for Safety
Assurance, had authority to issue guidelines with binding effect.
The record supports the agency’s arguments on this point.
See 49 C.F.R. § 501.3(a)(ii) (1998) (the Administrator
22
“[e]stablishes NHTSA program policies, objectives, and
priorities”); 49 C.F.R. § 501.3(c)(3) (1998) (The Associate
Administrator for Safety Assurance is “the principal advisor to
the Administrator on the enforcement of motor vehicle standards
and regulations, [and] directs and administers programs to
ensure compliance with Federal laws, standards, and regulations
relating to motor vehicle safety.”); 49 C.F.R. § 501.8(g)(1)
(1998) (“Except for those portions that have been reserved to the
Administrator or delegated to the Chief Counsel, the Associate
Administrator for Safety Assurance is delegated authority to
exercise the powers and perform the duties of the Administrator
with respect to . . . [a]dministering the NHTSA enforcement
program[s].”). Tellingly, NHTSA’s Chief Counsel has been
delegated authority to “[i]ssue authoritative interpretations of the
statutes administered by NHTSA.” 49 C.F.R. § 501.8(d)(5)
(1998). This authority does not reside with the Associate
Administrator for Safety Assurance. Moreover, the Associate
Administrator for Safety Assurance is specifically without
authority to issue final regulations, other than those relating to
the importation of motor vehicles, as that authority is reserved
by the Administrator. See 49 C.F.R. §§ 501.7(a)(1), 501.8(g)(2)
(1998).
In other words, Associate Administrator Weinstein had no
authority to issue binding regulations or to make a final
determination that specified regional recalls satisfy a
manufacturer’s duties under 49 U.S.C. § 30,118(c). And his
statements regarding NHTSA’s regional recall policy could not
change an automaker’s legal obligations under the Act. See
Nat’l Ass’n of Home Builders, 415 F.3d at 16 (finding that there
was no final agency action, in part, because “the scope of a
[regulated party’s] liability under . . . [the statute] remains
exactly as it was before the [challenged] Protocols’
publication”).
23
In sum, the 1998 policy guidelines do not, as appellants
claim, establish new rights and obligations for automakers. We
find, instead, that they set out the agency’s general policy
statement with respect to regional recalls, and nothing more.
“The effect of the [guidelines] is to inform the public of the
types of [regional recalls]” that the agency is unlikely to seek to
expand. Pac. Gas & Elec., 506 F.2d at 40. But, as the
concluding paragraph in the guidelines makes clear, “there is no
assurance that any such plan will” go unchallenged. Id.
Appellants’ final argument is that even if the guidelines do
not determine rights and obligations, they had legal
consequences. Appellants contend that the agency has altered
the legal regime with consequence both for automakers – who
now allegedly conform their practices to the agency’s standards
– and for automobile consumers – who allegedly own
“defective” vehicles that do not qualify for recall remedies under
the Act. They say that, for seven years, the agency and
automakers have followed the standards announced in the
guidelines. Appellants thus urge that, under a flexible and
pragmatic approach to finality, as endorsed in decisions such as
Ciba-Geigy Corp. v. EPA, 801 F.2d 430 (D.C. Cir. 1986), the
agency’s 1998 policy guidelines must be seen to have legal
consequences that confirm final agency action.
The flaw in appellants’ argument is that the “consequences”
to which they allude are practical, not legal. It may be that, to
the extent that they actually prescribe anything, the agency’s
guidelines have been voluntarily followed by automakers and
have become a de facto industry standard for how to conduct
regional recalls. But this does not demonstrate that the
guidelines have had legal consequences. The Supreme Court’s
decision in Bennett makes it quite clear that agency action is
only final if it determines “rights or obligations” or occasions
“legal consequences.” 520 U.S. at 178 (emphasis added)
24
(citation and internal quotation marks omitted). Circuit case law
cannot obviate the holding of Bennett.
As we explained only last term, “if the practical effect of
the agency action is not a certain change in the legal obligations
of a party, the action is non-final for the purposes of judicial
review” under the APA. Nat’l Ass’n of Home Builders, 415
F.3d at 15. Here, the only consequences suggested by appellants
are the automakers’ voluntary compliance with NHTSA’s
guidelines on regional recalls, arguably in order to avoid any
risk of the agency initiating a hearing under 49 U.S.C.
§§ 30,118(e) or 30,120(e), or bringing an enforcement action
pursuant to 49 U.S.C. § 30,118(a)-(b). But de facto compliance
is not enough to establish that the guidelines have had legal
consequences. See Nat’l Ass’n of Home Builders, 415 F.3d at 16
(rejecting as insufficient to establish legal consequences under
Bennett appellant’s “assert[ion] that local permitting agencies
have adopted the [challenged] Protocols to guard against their
own potential liability under [the statute]” absent a showing
“that local officials were coerced by the [agency]” to adopt the
Protocols). And there is nothing in the record here to indicate
that NHTSA has “force[d] [the industry] to change its behavior,
such that” NHTSA’s position on regional recalls “may be
deemed final agency action.” AT&T Co., 270 F.3d at 976.
It may be that some car owners continue to be
disadvantaged by automakers’ regional recall practices. But
automobile manufacturers adhered to these practices long before
NHTSA issued the 1998 policy guidelines. The adverse effects
flowing from the regional recall practices surely are not a legal
consequence of the guidelines, not only because the effects
preceded the guidelines, but, more importantly, because the
agency has never codified the practices in binding regulations.
25
III. CONCLUSION
Appellants have no cause of action under the APA, because
the contested 1998 policy guidelines do not reflect final agency
action, and they do not otherwise constitute binding rules. We
therefore affirm the District Court’s judgment dismissing
appellants’ action.
So ordered.
RANDOLPH, Circuit Judge, concurring: In this case
concerning the National Highway Traffic Safety
Administration’s “policy guidelines” for regional recalls, my
colleagues and I reach the same destination by different paths.
In my view, the “policy guidelines” at issue here do not
constitute “final agency action,” 5 U.S.C. § 704, because they do
not impose any “legal consequences” on the regulated
automakers. Bennett v. Spear, 520 U.S. 154, 178 (1997).
Agency action is not final when it “does not itself adversely
affect complainant but only affects his rights adversely on the
contingency of future administrative action.” DRG Funding
Corp. v. Sec’y of Housing & Urban Dev., 76 F.3d 1212, 1215
(D.C. Cir. 1996) (quoting Rochester Tel. Corp. v. United States,
307 U.S. 125, 130 (1939)); see also Reliable Automatic
Sprinkler Co., Inc. v. Consumer Prod. Safety Comm’n, 324 F.3d
726, 731-33 (D.C. Cir. 2003); AT&T Co. v. EEOC, 270 F.3d
973, 975-76 (D.C. Cir. 2001). The letters of the Associate
Administrator of the National Highway Traffic Safety
Administration address the situation in which an auto
manufacturer voluntarily proposes to recall its vehicles. See 49
U.S.C. § 30118(c). In this posture, the Administration, “[o]n the
motion of the Secretary or on petition of any interested person
. . . may conduct a hearing to decide whether the manufacturer
has reasonably met the notification requirements under this
section.” Id. § 30118(e). To take an example, the Associate
Administrator’s letter to Ford, J.A. 142-46, requests voluntary
compliance with the “general policy with respect to regional
recalls,” id. at 142, and merely threatens further administrative
action. The Associate Administrator notes that if Ford chooses
not to take the suggested actions, “the agency may commence a
proceeding under 49 U.S.C. §[] 30118(e) . . ..” Id. at 146
(emphasis added). If the threat were carried out, Ford and any
interested person – including, presumably, the appellants – could
present arguments at the hearing. The Administration would
then make a final decision whether the manufacturer is in
compliance with the statute. If not, the Administration could
2
order the manufacturer to take specific action. 49 C.F.R.
§ 557.8 (1998). This order, however, would not be self-
executing. The Attorney General would have to file a civil
action seeking enforcement. 49 U.S.C. §§ 30121, 30163. This
case is closely analogous to Reliable Automatic Sprinkler Co.,
in which we found that the Consumer Product Safety
Commission’s attempt to induce voluntary action by threatening
to initiate administrative proceedings that could possibly lead to
sanctions was not reviewable. 324 F.3d at 731-32. “To be sure,
there may be practical consequences” from Ford’s (or any other
manufacturer’s) decision not to comply with the Associate
Administrator’s letter, “[b]ut the request for voluntary
compliance clearly has no legally binding effect.” Id. at 732.
The course of action that the auto makers choose is subject to
administrative challenge both by NHTSA and by interested
persons like appellants. Neither the letters threatening action
nor the “guidelines” – merely a generic version of those letters
– dictate the outcome of such challenges.
It may be that the Associate Administrator had authority “to
issue[] policy guidance relating to NHTSA’s enforcement
program for vehicle safety,” Initial Supp. Br. for Appellee at 1.
But that authority tells us nothing about whether the guidance he
issued is sufficiently final to support judicial review. It is not.
The Associate Administrator’s role is largely prosecutorial and
the substantive policy described in the letters has not been
adopted as agency policy. Although the Associate
Administrator may initiate and conduct a hearing, 49 C.F.R.
§ 501.8(g)(1) (1998); see also Initial Supp. Br. for Appellee at
3, the Administrator has reserved the authority to “[m]ake final
decisions concerning alleged safety-related defects.” Id.
§ 501.7(a)(2) (1998). It is the Administrator, not the Associate
Administrator, who has final say over the defect policy, and his
decision is rendered only after an administrative hearing. The
guidelines do not, therefore, represent the “consummation of the
3
agency’s decisionmaking process.” Bennett, 520 U.S. at 178
(internal quotation marks omitted).
The National Traffic and Motor Vehicle Safety Act does not
contain a specific provision authorizing judicial review. We are
therefore confined to reviewing “final agency action[s].” 5
U.S.C. § 704. Because the action here is not final, it is not
reviewable. See Nat’l Ass’n of Home Builders v. Norton, 415
F.3d 8, 13 n.5 (D.C. Cir. 2005).