DC Circuit Clarifies Standard of Review When Agencies Argue “Good Cause” for Bypassing APA Notice and Comment Requirement

In an Federal Communications Commission (CMC) matter, Sorenson Communications, Inc. v. FCC, the DC Circuit vacated an interim rule promulgated by the FCC without going through notice and comment. The agency argued that it had “good cause” to dispense with the Administrative Procedure Act (APA) in this instance. The court disagreed, and articulated the court’s standard of review in assessing such claims. The inquiry is to be “meticulous and demanding”, and the exception in the APA is to be “narrowly construed”. The court’s review of the claimed exception is de novo, and here the agency’s argument that it was reacting to a fiscal emergency was spurious, especially as there was no support in the record to countenance such a departure from the normal APA procedures. The court recognized that it had allowed a few exceptions, but only where a real emergency involving a threat to life or property demanded quick action.

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Additional Source: Important APA Issue Awaits Supreme Court’s Review