The Arbitrary and Capricious Standard Under the APA (Litigator Series)

THIS CASEBOOK contains a selection of 229 U. S. Court of Appeals decisions that analyze and apply the arbitrary and capricious standard of review under the Administrative Procedure Act. The selection of decisions spans from 2007 to the date of publication.

"Under the [Administrative Procedure Act], [courts] may set aside an agency decision if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005) (quoting 5 U.S.C. § 706(2)(A)). "Review under the arbitrary and capricious standard is narrow, and [courts] do not substitute [their] judgment for that of the agency." Lands Council v. McNair (Lands Council II), 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (alterations and internal quotation marks omitted). However, an agency's decision can be set aside if:

the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Id. (internal quotation marks omitted). Such actions would be "clear error[s] of judgment that would render [the agency's] action arbitrary and capricious." Id. at 993 (internal quotation marks omitted). Native Village of Point Hope v. Jewell, (9th Cir. 2014)

The arbitrary and capricious standard in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), "includes a requirement that the agency . . . respond to 'relevant' and 'significant' public comments," Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) (quoting Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 & n.58 (D.C. Cir. 1977)); see also Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1042 (D.C. Cir. 2012). An agency's failure to respond to relevant and significant public comments generally "demonstrates that the agency's decision was not 'based on a consideration of the relevant factors.'" Thompson v. Clark, 741 F.2d 401, 409 (D.C. Cir. 1984) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)). Lilliputian Systems, Inc. v. Pipeline And Hazardous Materials Safety Administration, (DC Cir. 2014)