Pacific Legal Foundation v. Goyan

MURNAGHAN, Circuit Judge,

dissenting:

As to standing, I am in full agreement with the majority. My dissent concerns the conclusion that the FDA lacks power to reimburse those whose participation in agency proceedings can reasonably be expected to contribute to a full and fair determination of the issue, but who, without reimbursement of their expenses, would be unable to participate effectively.

The authority of the FDA to hold hearings is clear. See, e. g., 21 U.S.C. §§ 344 (b), 348(f), 355(c)-(e), 360b(d)-(e), 360e(g), 371(e). The authority to compel attendance to testify and otherwise to develop a record is also clear. 5 U.S.C. §§ 554 , 556. The reason such powers exist is that, unless there is compilation by the FDA of an adequate record containing the relevant information, its judgments and actions implementing the powers conferred on it will be faulty. The resulting expense, not simply in monetary terms, to the public is obvious, and potentially enormous.

Consequently, I do not accept the argument that power to make the reimbursements authorized by the regulation is lacking simply by reason of the absence of explicit conferral of the authority in statutory language. Implicit grants of power are more common than explicit ones. Otherwise, the red tape issuing from Congress would be even more excessive than at present. The United States Code already *1228 occupies more than a five-foot shelf, and a requirement of explicit, detailed expression for every power would multiply the volumes several times over.

Indeed, the contention offends against customary concepts of communication. Rarely are explicators — we and Congress included — precise to the point of total, exhaustive, pinpoint clarity as to every detail falling within a stated concept. We usually express ourselves by way of examples or by generalizations, rather than by too exactly tailored categories. The attempt at excessive honing can wear away the ax. It is therefore not surprising that the courts have required only that a regulation be a “legitimate, reasonable, and direct adjunct to the [agency’s] explicit statutory power.... ” Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 655 , 98 S.Ct. 2053, 2067 , 56 L.Ed.2d 591 (1978), quoting United States v. Chesapeake and Ohio Railway Co., 426 U.S. 500, 512 , 96 S.Ct. 2318, 2324 , 49 L.Ed.2d 14 (1976). See also, e. g., United States v. Bailey, 34 U.S. (9 Pet.) 238 , 9 L.Ed. 113 (1835); Morrow v. Clayton, 326 F.2d 36 (10th Cir. 1963).

To my mind, the majority permits itself to be influenced too much by the consideration that persons with biases, with preconceived notions as to the desired outcome, are to be included among the resources tapped under the regulation. If we had for consideration whether “impartial” expert witnesses, or objective friend-of-the-court counsel, might be retained and reimbursed, I suspect that the majority’s answer would have been different. Yet their approach ignores the pluralistic underpinnings of modern administrative law. Opposing expressions of competing and biased views, even if they are exaggerated or contradictory presentations of the facts, will often lead to a middle ground of truth and accuracy built on the existence of mutually modifying contrary contentions. They may, accordingly, equip an agency to determine which course of action is in the “public interest.” 1

The FDA regulation reflects the understandable and realistic concern that, if one side can afford to express its bias, while its opponent, holding a different, albeit equally salient, viewpoint, cannot, the resulting decision will be distorted, and less accurate than would have been the case if both were present.

Indeed, the concept of true impartiality is probably a myth. For most, if not all, of the areas into which the FDA must delve, a person with sufficiently sophisticated knowledge to be in a position to contribute valuable information has almost certainly acquired a bias in the course of obtaining the information.

It is, I submit, inapt to consider sources of payment for counsel fees in private litigation as a controlling analogy. In judicial proceedings between private individuals the American rule is that each side should bear its own expenses. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 , 95 S.Ct. 1612 , 44 L.Ed.2d 141 (1975). A court, however, has no further interest in the outcome than that it be fairly and expeditiously arrived at. The result qua result, customarily, is all that matters. A court considers only whether there shall be a judgment for one of the parties, and, if so, for how much. The FDA, on the other hand, conducts its inquiries in order that the substantive information developed may be employed for the public good. Sometimes none, sometimes all of the protagonists may be the winners.

Thus, in Alyeska, even though one of the parties was achieving a public benefit in its role as a private attorney general, nevertheless the body conducting the hearing, the court, had no assigned interest in programming litigation to that end. The result benefiting the public was incidental, insofar as the court was concerned. For the courts, *1229 the resolution of a specific controversy, rather than the development of public policy, is at issue. In this respect, the FDA, in its conduct of hearings, differs markedly, and to my mind decisively, insofar as the question here presented is concerned.

The majority has relied on three instances of explicit grants of power to agencies to allow compensation to participants in rule-making or other proceedings: the Magnuson-Moss Warranty-Federal Trade Improvement Act, 15 U.S.C. § 57a(h)(l) (1976), the Toxic Substances Control Act, 15 U.S.C. § 2605 (cX4) (1976), and the Foreign Relations Authorization Act, 22 U.S.C. § 2692 (1976). It then, in effect, asserts, expressio unius est exclusio aiterius. Yet that is a suspect manner of determining congressional intent. The maxim is to be applied with great caution and is recognized as unreliable. Bruce v. Lumbermens Mutual Casualty Co., 222 F.2d 642, 644-45 (4th Cir. 1955); National Petroleum Refiners Ass’n v. Federal Trade Commission, 482 F.2d 672, 676 (D.C.Cir.1973), cert. denied, 415 U.S. 951 , 94 S.Ct. 1475 , 39 L.Ed.2d 567 (1974); 2A Sutherland, Statutory Construction § 47.25 at 132.

Here we do not even have three items listed together to serve as a predicate for excluding a fourth. Instead they derive from three distinct statutory enactments, and, consequently, supply no substantial foundation for a deduction that the result for the FDA should be different than that for the other three agencies. The obvious fact is that Congress sometimes makes explicit a power already existing implicitly, and, at other times, regards the necessity for the power as so self-evident, so entwined in the nature of the agency and its functions, that it dispenses with the superfluous task of explicitly spelling out the power.

Nor do I find persuasive the non-adoption by Congress on several occasions of “the general authorization for all agencies to do so.” Maj. op. at p. 1225. The federal agencies, taken as a whole, are diverse in purpose, and many in number. The mandate of the FDA to protect the public health is not shared by all agencies. Ascertainment of the powers of and limitations on each agency should be determined on the basis of its own legislation and circumstances. Indeed, it may be for that very reason that Congress has rejected broadly generalized proposed statutes designed to create a power applicable to all federal agencies.

A power such as the one under consideration here so manifestly aids the FDA in accomplishing its statutory mission that its implication is inescapable. The same may not be said of other agencies generally, less exposed to matters of health and to scientific complexities. The scientific nature and overweening importance of the subject matter with which the FDA deals leave no doubt that it may often benefit from outside assistance.

While placing great reliance on congressional actions of little relevance, the majority gives little weight to congressional action of considerable pertinence. On two occasions Congress made clear in appropriations measures its understanding that it was providing funds to meet expenditures of the very nature here involved. That constituted a clear recognition that the implied power to make such an expenditure existed in the FDA, for, Congress should not lightly be assumed to be participating in a breach of its own enactments. See Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116 , 67 S.Ct. 1129, 1132 , 91 L.Ed. 1375 (1941); Brooks v. Dewar, 313 U.S. 354, 360-61 , 61 S.Ct. 979, 981-82 , 85 L.Ed. 1399 (1941).

Finally, the majority has placed reliance on the decision in Greene County Planning Board v. Federal Power Commission, 559 F.2d 1227 (2d Cir. 1976) (en banc), cert. denied, 434 U.S. 1086 , 98 S.Ct. 1280 , 55 L.Ed.2d 791 (1978). The case is inapposite for the following reasons:

1. In Greene reimbursement was sought by all intervenors, irrespective of their economic capacities to meet their own expenses. Indeed, one of them was a New York county which was unlikely to be too impecunious to pay its own way. The pro *1230 posed FDA regulation envisages reimbursement only for those having something to contribute to an enlightened solution, but insufficient resources to participate effectively without FDA reimbursement.

2. In Greene the claims for attorneys’ fees emanated from all intervenors, regardless of whether their participation was deemed by the agency necessary to insure a rounded presentation and accurately determine the public interest. In the case of the proposed FDA regulation, to the contrary, the fee allowances would be restricted to parties encouraged in advance by the agency to participate, on the grounds that they would have worthwhile information to present, 2 but not economic wherewithal to do so on their own.

3. The fees sought in Greene were based on the expenses actually incurred by each intervening party, without regard to a preexisting limiting schedule. Under the FDA proposed regulation, however, any selected participant would know in advance that reimbursement would be restricted to the rate paid by the FDA to its expert witnesses, attorneys, consultants, or other employees performing similar services.

4. Alyeska, relied on in Greene, clearly concerned a different situation than the one presented by the proposed FDA regulation. Alyeska rejected a request for an order that one litigant pay the expenses of another litigant who had prevailed. The proposed regulation does not impose the burden of any fee reimbursement which may be allowed upon another participant in the hearing. Instead it calls for the United States itself to pay for the valuable services performed in furtherance of the public interest. 3

5. Most important, the FPC in Greene elected not to pay attorneys’ fees and other litigation expenses of intervenors in a hearing over the construction authorization for an electrical transmission line. The agency based its decision on a belief that it lacked authority, but also, alternatively, on its discretionary determination that “none of the intervenors deserved such compensation in any event since they had only been ‘protecting their own interests.’ ” 559 F.2d at 1234 . 4 There is a difference of some magnitude between a court’s non-interference with an agency’s decision declining to pay attorneys’ fees, and a court’s interference with an agency’s decision to pay attorneys’ fees. In both cases, deference to the agency in an area of its expertise should dictate non-interference.

Although the en banc majority in Greene expressed its decision in terms of lack of a legislative grant of authority, in fact, that was neither necessary to the result nor, I submit, the actual rationale of the case. Even had the FCC been explicitly authorized to reimburse participants in its proceedings, the agency would have decided, as a discretionary matter, against an award of attorneys’ fees, and the court would have deferred to that exercise of discretion.

The crux of the Greene case is to be found at 559 F.2d at 1239 , n.2:

The Federal Power Commission has never deemed itself authorized to pay the legal fees of private litigants and has sought no commitment from the Comp *1231 troller General as to the validity of such payments. This interpretation of the Federal Power Act by the agency charged with its administration is entitled to great deference from this Court.

That, purely and simply, is a statement that the court should be slow to force the agency to do something it does not want to do. By the same token, our court should be very slow to force the agency not to do something it does want to do, which is necessary to the effective exercise of its statutory authority.

For all those reasons, and for those expressed so cogently in the opinion of the district court, Pacific Legal Foundation v. Goyan, 500 F.Supp. 770 (D.Md.1980), I would affirm.

. See, e. g., Air Line Pilots Ass’n Int’I v. Civil Aeronautics Bd., 475 F.2d 900, 905 (D.C.Cir.1973); Palisades Citizens Ass'n v. Civil Aeronautics Bd., 420 F.2d 188, 192 (D.C.Cir.1969). See generally Gelhorn, Public Participation in Administrative Proceedings, 81 Yale L.J. 359 , 360 (1972); Stewart, The Reformation of American Administrative Law, 88 Harv.L.Rev. 1669, 1683-85, 1711-13 (1975).

. In the regulatory language, to secure reimbursement an applicant would have to demonstrate “a significant interest that is not adequately represented by another participant.” 44 Fed.Reg. 23050 (1979).

. Congress recently recognized the distinction in a different context. In the Equal Access to Justice Act, Pub.L.No. 96-481 (1981', Congress provided for reimbursement of attorneys’ fees and other expenses in certain administrative adjudications. The statute states at § 202(b):

The Congress further finds that because of the greater resources and expertise of the United States the standard for an award of fees against the United States should be different from the standard governing an award against a private litigant, in certain situations.

. See also id. at 1238:

These intervenors are protecting their own interests, and we see no reason to grant them fees and expenses. If they were generally allowed, a large financial burden would be imposed on this Commission and the taxpayer or upon the utility involved and inevitably on its rate payers.

(Van Graafeiland, J., concurring).