Example 2.5

Takeaway point 2.5: Emphasize how your client was wronged — both procedurally and substantively — during administrative proceedings.

Lawyers can target procedures, too — not just the substantive issues such as orders, opinions, and reasoning.

Indeed, the flawed process by which, for example, an agency reached its decision might form the core of your client’s lawsuit. The following example shows how to use procedural facts to make an agency look like it acted arbitrarily.

The Federal Communications Commission (FCC) decided not to repeal or modify a long-standing regulation that imposed a cap on how many broadcast television stations any single company could own. Federal law required the FCC to reassess that cap every two years to decide whether it remained necessary. Here, several TV networks that opposed the cap use the procedural record to show that the FCC failed to take its duty seriously. And that storytelling supports the TV networks’ legal argument: the agency acted “arbitrarily and capriciously” (which is the legal standard under the statute that lets parties challenge agency actions).

Source: Fox’s (and other TV networks’) brief in Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002), modified on reh’g, 293 F.3d 537 (D.C. Cir. 2002).

The crux of Fox’s argument is that the FCC lacks a rational basis for maintaining the cap. Thus, rather than stating that the FCC “issued” the contested biennial review, petitioners rebuke the FCC for “summarily dispatch[ing]” its duty, and for doing so hastily — in eight months rather than after two full years.

This extraordinary sentence contains five strategic moves.

First, its use of the vivid verb “buried” hints that the FCC sought to hide either its recommendation or the feebleness of its efforts. Second, the fact that the FCC included the crucial recommendation in an appendix, which was mentioned only briefly in the main report, suggests that the agency failed to wrestle seriously with the numerous objections that Fox raised about the ownership cap. Third, that the appendix was prepared by staff — not by the Commission itself — shows both that the FCC did not reassess the cap and that the D.C. Circuit should be less deferential to the agency’s conclusion because it came from agency minions. Fourth, even the FCC’s staffers were so disengaged from this issue that they failed to spend a single sentence in their 209-page report evaluating whether the cap should survive; only the report’s appendix touched this issue. And fifth, the word “conclusory" tells readers that the FCC failed to analyze whether the cap reflected good public policy; rather, the FCC stated a conclusion without explaining its reasoning.

Fox points out that the FCC backed away from its own promise to study the cap seriously. Moreover, the FCC’s past conclusion that the cap deserved to be scrutinized implies that the rule is flawed.

The brief manages to stay on the attack even as it quietly admits two bad facts. First, the Staff Report did explain the agency’s reasoning. But by using the brilliant verb “echoes,” the brief implies that the agency just cut and pasted its past analysis without thinking seriously about whether to preserve the cap. Second, the FCC ratified the recommendation of its staff. Thus, the agency — rather than mere staffers — did decide this issue. Nevertheless, the scare quotes around “staff recommendations” quietly mock the FCC’s procedures. Bad facts are airbrushed until they seem benign.

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Source: Messing Noah A. The Art of Advocacy: Briefs, Motions, and Writing Strategies of America's Best Lawyers. Aspen Publishers,2013. — 310 p.. 2013

Example 2.5

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