# Brief for the Respondent in Opposition — Angel v. Butz

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1798%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondent in Opposition
- **Published:** January 1, 1974
- **Citation:** 417 U.S. 967

## Text

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Ne al ining dealin nihannp sinkeeipininthainine 1
EER OE Oe TET es 2
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Pepement.......--..------------------------- 6
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CITATIONS
Cases:
American Fed’n of State, County and Municipal
Employees v. City of Cleveland, 484 F. 2d
Ns has ace anand gai minina iam aniiadsenmwain daa 10
Appalachian Power Co. v. Environmental Pro-
tection Agency, 477 F. 2d 495________-__-- 10
Bradley v. Weinberger, 483 I’. 2d 410_____---- 10
California Citizens Band Ass’n v. United States,
375 F. 2d 48, certiorari denied, 389 U.S. 844 8
Camp v. Pitts, 411 U.S. 1388.__---.--.------ 7,9
Chrysler Corp. v. Department of Transportation,
IR eg ae ke a eae eal aag 10
Citizens to Preserve Overton Park, Inc. v. Volpe,
I I i ee rok oo priate es data mmeth 7, 8, 9, 10
City of Chicago v. Federal Power Commission,
458 F. 2d 731, certiorari denied, 405 U.S.
ae ae re en na 8
D.C. Federation of Civic Associations v. Volpe,
459 F. 2d 1231, certiorari denied, 405 US.
REE ER CRE ote AEC roe wee 10, 11, 12
Delaware Citizens for Clean Air, Inc. v. Admin-
NG, I I I sia eran cv-tcentanowenin ace 8

Cases—Continued
Environmental Defense Fund, Inc. v. Corps of
Engineers, 470 F. 2d 289, certiorari denied,
> ae 10
Rodriguez v. Zimbelman, 317 F. Supp. 921 -__- 4
Salazar v. Hardin, 314 F. Supp. 1257--.-- ~~ _- 4
Save Our Ten Acres v. Kreger, 472 F.2d 463... 9
Scherr v. Volpe, 466 F. 2d 1027---.-----.-.-- 10
Schicke v. Romney, 474 F. 2d 309_---~------- 10, 11
Silva v. Lynn, 482 F. 2d 1282-------------- 10
United States v. Allegheny-Ludlum Steel Corp.,
I emma 7
United States v. Florida E. Coast Ry., 410
' nr a a cee amines ik 7
Statutes
Administrative Procedure Act
i Ie a ae ee 7
a8 TO!) 7
ft th 5 7
Sugar Act of 1948, 61 Stat. 922, as amended,
BR a ae 2.3
Section 301(c)(1), 7 U.S.C. 1131(e)(1)-_- aes
Section 403, 7 U.S.C. 1153__._---------
Section 403(b), 7 U.S.C. 1153(b)_-----_-
I aecaee 8
eked 10
PE, SN on namunnninaenne N
Miscellaneous:
nt aaamaned 3
Pe oiecdaeseccaue 3
Og co antdecsabnodienee 4
a enenannee 4
,p ee 2%. Ee oe someones 4
meme 4
117 Cong. Rec. 27525-27528 _ -......------- 6
36 Fed. Reg. 5903-5904. _._.......-------- 5)

e Pe > eetuega No question is presented as to the Secretary’s compliance
with 5 U.S.C. 553.

Bieetiscmsovns Waal Al. Laie stevie

8

tained in the administrative record hefore the distrie¢
court. This contention overlooks significant distine.
tions between Overton Park and the instant case.

In Overton Park, the administrative action chal-
lenged was the application of a very specific statutory
standard to a particular set of facts; «.e., whether
there was any ‘‘feasible and prudent alternative” (23
U.S.C. 138; 49 U.S.C. 1653(f)) to construction of a
highway through certain park land. Here the chal-
lenged action consists of a general policy determina-
tion that minimum wage rates prescribed by the See.
retary are “fair and reasonable.” 7 U.S.C. 1131(¢)
(1). The latter action, unlike the former, involves a
legislative-type policy judgment not readily suscepti-
ble to evidentiary validation; in such cases courts
have held, in applying Overton Park, that all matters
relied upon by the agency need not be part of a
formal administrative record and need not be brought
before the court. F.9., Delaware Citizens for Clean
Air, Ine. vy. Administrator, 480 F. 2d 972, 976 (CA.
3); City of Chicago v. Federal Power Commission,
458 F. 2d 731, 745-747 (C.A.D.C.), certiorari denied,
405 U.S. 1074; California Citizens Band Ass’n \.
United States, 375 F. 2d 43, 54 (C.A. 9), certiorari de-
nied, 389 U.S. 844.

In addition, in Overton Park the record before this
Court contained no explanation by the Secretary of the
basis for his approval of the highway nor any evi-
dence of his consideration of the relevant factors
401 U.S. at 408, 420. Here, by contrast, the regula-
tions contain not only an explicit statement of their
bases but also an explanation of the Secretary’s rea-
sons for rejecting petitioners’ proposals (Pet. App.
51-60).

9

As this Court held in Camp v. Pitts, supra, a con-
temporaneous explanation of the “determinative rea-
son for the final action taken,” even if ‘“‘curt,” pro-
yides the basis by which the validity of the action
must be judged, 411 U.S. at 143. In such a case,
Overton Park, to the extent that it requires that gaps
in the administrative record be filled in the court pro-
ceedings, is inapplicable. 411 U.S. at 142-148.

In any event, here there was before the district
court a substantial record bearing on the Secretary’s
action, including a transcript of the 1971 public hear-
ings on the proposed regulations, supplemental briefs
and affidavits submitted by interested parties in con-
nection with that hearing, and the deposition of the
Department of Agriculture official responsible for
promulgating the regulations, In addition, the reec-
ord included a detailed specification of sources of
information (in addition to public hearings) consid-
ered by the Secretary in promulgating the substan-
tially similar sugar beet wage-rate regulations in prior
years."

Finally, it should be noted that in the district court
both sides moved for summary judgment, contending
that the validity of the Secretary’s action could prop-
erly be adjudicated with reference to the statement of
bases and considerations in the regulation and the
other matters in the record before the court.°

‘In view of the broad statutory standard of the Sugar Act and
the correspondingly wide scope of the Secretary's authority under
it, the court of appeals engaged in appropriately “thorough, prob-
ing, in-depth review” (Overton Park, supra, 401 U.S. at 415) of
his action.

‘Petitioners were not barred by any court ruling from seek-
ing discovery concerning matters considered by the Secretary

ae

—

B. Petitioners also contend that the decision beloy
conflicts with Overton Park and with the decision of
the District of Columbia Circuit in D.C. Federation of
Civic Associations Vv. Volpe, 459 F. 2d 1231 (C.A.D.C,),
certiorari denied, 405 U.S. 1030, in holding that the See.
retary’s consideration of “legally irrelevant and imper-
missible” factors (Pet. 17) did not invalidate his action,
The claimed conflict, however, is not in fact presented
in this case.

10

that were not part of the record before the court. An agency's
action “is entitled to a presumption of regularity” (Overto
Park, supra, 401 U.S. at 415), and, absent a statute to the
contrary (cf. 28 U.S.C, 2112), it is ordinarily the obligation of
one challenging the validity of agency action to obtain and
bring before the court evidence to overcome that presumption,
The cases cited by petitioners (Pet. 16, n. 2) as requiring that
the whole administrative record be provided to the court by
the agency are all distinguishable, in that the district courts
had blocked discovery efforts to obtain the matters relied
upon by the agency (Silva v. Lynn, 462 F. 2d les, Ls
(C.A. 1); Sehicke v. Romney, 474 F. 2d 809, 815-314, 3)
(C.A. 2)); a special statute required the agency to rely upon
only matters in the record or to present the record relied
upon to the reviewing court (Appalachian Power Co. v. Env
ronmental Protection Agency, 477 F. 2d 495, 505-507 (CLA. 4):
Chrysler Corp. v. Department of Transportation, 472 F. x
659, 668 (C.A. 6)); there was no administrative record befor
the court (Scherr v. Volpe, 466 F. 2d 1027, 1032 (C.A, 7):
Bradley v. Weinberger, 483 F. 2d 410, 414 (CLA. 1) ) : or they con-
tain only dicta, in that there was no suggestion that the agency
relied upon matters not before the court or that the adminis
trative record before the court was otherwise insuflicient for
determining the validity of the action taken. Environmental
Defense Fund, Inc. vy. Corps of Engineers, 470 F, 2d 289, 30)
(C.A. 8), certiorari denied, 412 U.S. 931; Save Our Ten Acre
v. Kreger, 472 F. 2d 463, 466 (C.A. 5); American Fed'n of
State, County, and Municipal Employees v. City of Clevelénd.
484 F. 2d 339, 384 (C.A. 6) ). Moreover, most of the cases did net
involve rule-making.

—e

Petitioners’ premise—that the Secretary’s action
was based on consideration of irrelevant factors—is
not supported by the record. The asserted irrelevaney
was not some form of extraneous political pressure, as
in D.C. Federation, but rather consists of the Secre-
tary’s restatement of his position that he lacked
statutory authority to accept particular regulations
proposed by petitioners (Pet. App. 56). However, the
Secretary stated that he had also considered the ad-
visability of the proposed regulations on their
merits—an assertion which stands uncontradicted on
the record in this case—and there is no basis for con-
cluding that the Secretary’s consideration of the
merits was affected by his view of the limits of his
authority.

Accordingly, the court of appeals’ discussion of this
issue was essentially dictum. Indeed, all the court said
was that, “if [the Secretary] * * * considered an al-
leged improper reason along with one that was proper,
that action in itself does not establish that the result
was arbitrary or capricious” (Pet. App. 40; emphasis
supplied). The court did not accept petitioners’ char-
acterization of the Secretary’s reference to doubts
about his legal authority as constituting consideration
of an “improper reason.” Cf. Schicke v. Romney, 474
F.2d 309, 318 (C.A. 2) ).°

11

*The Secretary's reference to his possible lack of authority
as an alternative ground for rejecting petitioners’ proposals was
analogous to the settled practice of courts and agencies to state
alternative and frequently unrelated grounds for their decisions,
such as finding a lack of jurisdiction and alternatively rejecting
a claim on the merits. In such circumstances, the existence or
correctness vel non of one ground typically does not itself im-
pair the validity of the alternative ground.

12

Finally, because this case involves the quasi-legisls.
tive action of rule-making, the validity of the Seer.
tary’s action would not necessarily have been affected
even if he had considered irrelevant factors that
might have tainted his action in applying a statutory
standard to a particular set of facts, as the court in
D.C. Federation recognized. 459 F. 2d at 1247.

CONCLUSION

For the foregoing reasons, the petition for a writ
of certiorari should be denied.
Respectfully submitted.
Rosert H. Bork,
Solicitor General.
Carta A. Hits,
Assistant Attorney General.
GeraLp P. Norton,
Assistant to the Solicitor General.
Rosert E. Kopp,
ANTHONY J. STEINMEYER,
Attorneys.
May 1974.

U.S. GOVERNMENT PRINTING OFFICE: 1974

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1798%3A2. Public record. Not legal advice.