IV. REVIEW OF AGENCY DECISIONS
1. Bonneville Power Administration (“BPA”)
3. Environmental Protection Agency
(“EPA”)
4. Federal Communications Commission
(“FCC”)
5. Federal Energy Regulatory
Commission (“FERC”)
6. Federal Labor Relations Authority
7. Federal Trade Commission (“FTC”)
8. Immigration and Naturalization
Service (“INS”)
9. Interior Board of Land Appeals (“IBLA”)
10. Labor Benefits Review Board
11. Federal Mine Safety and Health
Review Commission
12. National Labor Relations Board
13. National Transportation Safety
Board (“NTSB”)
14. Occupational Safety and Health
Review Commission (“OSHRC”)
15. Railroad Retirement Board (“RRB”)
17. Securities Exchange Commission
The
Administrative Procedures Act (“APA”) sets forth standards governing judicial
review of decisions made by federal administrative agencies. See Dickinson v. Zurko, 527 U.S.
150, 152 (1999);
In re Big Thorne Project, 857 F.3d 968, 973 (9th Cir.
2017) (United States Forest Service); Public Util. Dist. No. 1 v.
Federal Emergency Mgmt. Agency, 371 F.3d 701, 706 (9th Cir.
2004). “Where
Congress does not specify a standard of review, an agency’s factual findings
are reviewed for substantial evidence under the Administrative Procedure Act, 5 U.S.C. §
706.” Chu v. U.S. Commodity Futures Trading Comm’n, 823 F.3d 1245, 1250 (9th
Cir. 2016).
Pursuant
to the APA, agency decisions may be set aside only if “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Nat’l Mining Ass'n v. Zinke, No. 14-17350, 2017 WL
6327944, at *13 (9th Cir. Dec. 12, 2017); United States v. Bean, 537 U.S. 71, 77 (2002); Wildwest Inst. v. Kurth, 855 F.3d 995, 1002 (9th Cir.
2017); Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1224 (9th
Cir. 2011);
Latino Issues Forum v. EPA, 558 F.3d 936, 941 (9th Cir.
2009);
Public Util. Dist. No. 1, 371 F.3d at 706.[1] The arbitrary and capricious standard is
appropriate for resolutions of factual disputes implicating substantial agency
expertise. See Marsh v. Oregon Natural Res.
Council, 490 U.S.
360, 376 (1989);
Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150 (9th
Cir. 2002);
Ninilchik Traditional Council
v. United States, 227 F.3d 1186, 1194 (9th
Cir. 2000).
Review under the standard is narrow and the reviewing
court may not substitute its judgment for that of the agency. See U.S. Postal Serv. v. Gregory, 534 U.S.
1, 6-7 (2001);
Marsh, 490 U.S. at 378; Wildwest Inst, 855 F.3d at 1002;
Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th
Cir. 2011);
Gardner, 638 F.3d at 1224; Amalgamated Sugar Co. LLC v. Vilsack, 563 F.3d 822, 829 (9th Cir.
2009);
Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1032 (9th
Cir. 2008);
Ocean Advocates v. U.S. Army
Corps of Eng’rs, 402 F.3d 846, 858 (9th Cir.
2005);
Public Util. Dist. No. 1, 371 F.3d at 706.[2] The agency, however, must articulate a
rational connection between the facts found and the conclusions made. See Wildwest Inst, 855 F.3d at 1002;
Ctr. for Biological Diversity v. Bureau of Land Mgmt., 833 F.3d 1136, 1150 (9th
Cir. 2016)
(concluding that BLM “considered the relevant
factors and articulated a rational connection between the facts found and the
choices made.”); Latino Issues Forum,
558 F.3d at 941; Friends of Yosemite Valley, 520 F.3d at 1032; Envtl. Def. Ctr., Inc. v. EPA,
344 F.3d 832, 858 n.36 (9th Cir. 2003).
The
reviewing court must determine whether the decision was based on a
consideration of the relevant factors and whether there has been a clear error
of judgment. See Marsh, 490 U.S. at 378; Ocean Advocates, 402 F.3d at 859; Forest Guardians v. U.S.
Forest Serv., 329 F.3d 1089, 1097 (9th
Cir. 2003);
Envtl. Def. Ctr., 344 F.3d at 858 n.36.
The
inquiry, though narrow, must be searching and careful. See Marsh, 490 U.S.
at 378;
Ocean Advocates, 402 F.3d at 858-59; Brower v. Evans, 257 F.3d 1058, 1065 (9th
Cir. 2001);
Ninilchik Traditional Council, 227 F.3d at 1194.
An agency action is arbitrary and
capricious “only 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.”
Defs. of Wildlife v. Zinke, 856 F.3d
1248, 1257 (9th Cir. 2017) (quoting Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1054 (9th
Cir. 2013)). See also Greater Yellowstone Coalition
v. Lewis, 628 F.3d 1143, 1148 (9th Cir. 2010) (as amended) (relying on The Lands Council v. McNair, 537 F.3d
981, 987 (9th Cir. 2008)
(en banc), overruled on other grounds by Winter v. Natural Res. Def.
Council, 555 U.S. 7
(2008)); Envtl. Def. Ctr., 344
F.3d at 858 n.36;
Brower, 257 F.3d at 1065.
An
agency’s decision can be upheld only on the basis of the reasoning in that
decision. See California Energy Comm’n v.
Dep’t of Energy, 585 F.3d 1143, 1150 (9th Cir. 2009); Snoqualmie Indian Tribe v. F.E.R.C., 545 F.3d 1207, 1212 (9th Cir. 2008); Anaheim Mem’l Hosp. v. Shalala,
130 F.3d 845, 849 (9th Cir. 1997).
“The standard is ‘highly deferential, presuming
the agency action to be valid and affirming the agency action if a reasonable
basis exists for its decision.’ Bahr v. EPA, 836 F.3d 1218,
1229 (9th Cir. 2016)
(citation and internal quotation marks omitted).” Yazzie v. U.S. Envtl. Prot. Agency, 851 F.3d
960, 968 (9th Cir. 2017).
A court
may refuse to defer to an agency’s interpretation of a statute that raises
serious constitutional concerns. See Diouf v. Napolitano, 634 F.3d 1081, 1090 (9th Cir. 2011) (explaining court will not defer to agency
interpretation if it raises “grave constitutional doubts”); Ma v. Ashcroft, 257 F.3d 1095,1105 n.15 (9th
Cir. 2001)
(noting Chevron deference is not owed where a substantial constitutional
question is raised by an agency’s interpretation of a statute it is authorized
to construe); Williams v. Babbitt, 115 F.3d 657, 661‑62
(9th Cir. 1997).
Whether
an agency’s procedures comport with due process requirements presents a
question of law reviewed de novo. See
Ramirez-Alejandre v. Ashcroft, 319 F.3d
365, 377 (9th Cir. 2003)
(en banc) (noting no deference is owed to agency); Gilbert v. Nat’l Transp.
Safety Bd., 80 F.3d 364, 367 (9th Cir.
1996)
(FAA); cf. Adkins v. Trans‑Alaska
Pipeline Liability Fund, 101 F.3d
86, 89 (9th Cir. 1996)
(noting courts should usually defer to agency’s fashioning of hearing
procedures). The constitutionality of an
agency’s regulation is reviewed de novo.
See Gonzalez v. Metropolitan
Transp. Auth., 174 F.3d
1016, 1018 (9th Cir. 1999).
This court generally defers to an agency’s
interpretation of its own regulations. See
Public Util. Dist. No. 1 v.
Federal Emergency Mgmt. Agency, 371 F.3d
701, 706 (9th Cir. 2004);
Forest Guardians v. U.S.
Forest Serv., 329 F.3d 1089, 1097 (9th
Cir. 2003)
(noting “substantial deference”).
Deference is owed unless the interpretation is plainly erroneous or
inconsistent with regulation. See League of Wilderness Defenders
v. Forsgren, 309 F.3d
1181, 1183 (9th Cir. 2002). Note that in some instances, little or no
deference is owed to an agency’s interpretation of regulations. See, e.g, United States v. Mead Corp., 533 U.S.
218, 226-28 (2001)
(explaining continuum of deference owed); Pronsolino v. Nastri, 291 F.3d 1123, 1131-32 (9th
Cir. 2002)
(explaining levels of deference).[3]
Note
that interpretative regulations are entitled to less deference than legislative
regulations. See Cmty. Hosp. of Monterey
Peninsula v. Thompson, 323 F.3d 782, 791 (9th Cir.
2003);
Lynch v. Dawson, 820 F.2d 1014, 1020 (9th
Cir. 1987)
(noting “various degrees of deference” owed to interpretative rules). Whether an agency regulation is
interpretative or legislative is a question of law reviewed de novo. See
Erringer v. Thompson, 371 F.3d 625, 629 (9th Cir.
2004);
Hemp Indus. Ass’n v. Drug
Enforcement Admin., 333 F.3d 1082, 1086 (9th
Cir. 2003);
Chief Probation Officers v.
Shalala, 118 F.3d 1327, 1330 (9th
Cir. 1997).
An
agency’s imposition of sanctions is reviewed for an abuse of discretion. See World Trade Fin. Corp. v. U.S. S.E.C., 739 F.3d 1243, 1247 (9th
Cir. 2014); Saberi v. Commodity Futures
Trading Comm’n,
488 F.3d 1207, 1215 (9th Cir. 2007); Ponce v. SEC, 345 F.3d
722, 728-29 (9th Cir. 2003);
Vernazza v. SEC, 327 F.3d 851, 858 (9th Cir.
2003)
(noting limited scope of review), amended by 335 F.3d 1096 (9th Cir. 2003). Thus,
a penalty imposed should not be overturned unless it is unwarranted in law or
unjustified in fact. See World Trade Fin. Corp., 739 F.3d at 1247; Saberi,
488 F.3d at 1215; Balice v. Dep’t of Agric.,
203 F.3d 684, 689 (9th Cir. 2000);
Potato Sales Co. v. Dep’t of
Agric., 92 F.3d 800, 804 (9th Cir.
1996).
An
agency’s interpretation or application of a statute is a question of law
reviewed de novo. See Snoqualmie Indian Tribe v. FERC, 545 F.3d 1207, 1212 (9th Cir. 2008); Schneider v. Chertoff,
450 F.3d 944, 952 (9th Cir. 2006);
Vernazza v. SEC, 327 F.3d 851, 858 (9th
Cir.), amended by 335 F.3d 1096 (9th Cir. 2003). An agency’s interpretation of its statutory
mandate is also reviewed de novo. See
Bear Lake Watch, Inc. v. FERC, 324 F.3d
1071, 1073 (9th Cir. 2003);
American Rivers v. FERC, 201 F.3d 1186, 1194 (9th
Cir. 2000).
In
reviewing an agency’s construction of a statute, the court must reject those
constructions that are contrary to clear congressional intent or frustrate the
policy that Congress sought to implement.
See Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S.
837, 842-44 (1984)
(establishing two-part test for reviewing an agency’s interpretation of a
statute); Adams v. U.S. Forest Serv., 671 F.3d 1138, 1143 (9th
Cir. 2012);
Schneider, 450 F.3d at 952; Wilderness Soc’y v. U.S. Fish
& Wildlife Serv., 353 F.3d 1051, 1059 (9th
Cir. 2003)
(en banc) (explaining two-step test), amended by 360 F.3d 1374 (9th Cir. 2004); California Dep’t of Soc.
Servs. v. Thompson, 321 F.3d 835, 847 (9th Cir.
2003)
(applying Chevron). When a
statute is silent or ambiguous on a particular point, the court may defer to
the agency’s interpretation. See Chevron, 467 U.S.
at 843;
Putnam Family P’ship v. City of Yucaipa, California, 673 F.3d 920, 928 (9th Cir. 2012); Snoqualmie Indian Tribe, 545 F.3d at 1213; Schneider, 450 F.3d at 952; Bear Lake Watch, 324 F.3d at 1073. Review is limited to whether the agency’s
conclusion is based on a permissible construction of the statute. See Chevron, 467 U.S.
at 843;
Snoqualmie Indian Tribe, 545 F.3d at 1213; Espejo v. INS, 311 F.3d 976, 978 (9th Cir.
2002);
McLean v. Crabtree, 173 F.3d 1176, 1181 (9th
Cir. 1999).
A
federal agency’s interpretation of a statutory provision it is charged with
administering may be entitled to deference.
See Bear Lake Watch, 324 F.3d
at 1073
(noting “deference [is owed] to an agency’s reasonable interpretation of a
statutory provision where Congress has left the question to the agency’s
discretion”); Biodiversity Legal Found. v.
Badgley, 309 F.3d 1166, 1175 (9th
Cir. 2002)
(noting deference unless agency’s interpretation is contrary to clear
congressional intent or frustrates the policy Congress sought to implement); Royal Foods Co. v. RJR
Holdings Inc., 252 F.3d 1102, 1106 (9th
Cir. 2000)
(noting under the two-part Chevron analysis, deference is due the
agency’s interpretation of a statute unless the plain language is unambiguous
“with regard to the precise matter at issue”).[4]
Note
that no deference is owed to an agency when “Congress has directly spoken to
the precise question at issue.” Chevron, 467 U.S. at 842; Cmty. Hosp. of Monterey
Peninsula v. Thompson, 323 F.3d 782, 789 (9th Cir.
2003). Courts are also not obligated to defer to an
agency’s interpretations that are contrary to the plain and sensible meaning of
the statute. See Mota v. Mukasey, 543 F.3d 1165, 1167 (9th Cir. 2008); Kankamalage v. INS, 335 F.3d
858, 862 (9th Cir. 2003). No deference is given to an agency’s interpretation
of a statute that it does not administer or is outside of its expertise. See Medina-Lara v. Holder, 771 F.3d 1106, 1117 (9th
Cir. 2014); Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1163-64 (9th Cir. 2011); Mandujano-Real v. Mukasey, 526 F.3d 585, 589 (9th Cir.
2008).[5] Moreover, “[r]adically inconsistent
interpretations of a statute by an agency, relied upon in good faith by the
public, do not command the usual measure of deference to agency action.” Pfaff v. United States Dep’t
of Housing & Urban Dev., 88 F.3d 739, 748 (9th Cir.
1996). Thus, “[a]n agency interpretation of a
relevant provision which conflicts with the agency’s earlier interpretation is
‘entitled to considerably less deference’ than a consistently held agency
view.” Young v. Reno, 114 F.3d 879, 883 (9th Cir.
1997)
(quoting INS v. Cardozo-Fonseca, 480 U.S.
421, 446 n.30 (1987));
cf. Queen of Angels/Hollywood
Presbyterian Med. Ctr. v. Shalala, 65 F.3d
1472, 1480 (9th Cir. 1995)
(noting an agency “is not disqualified from changing its mind”). Similarly, no deference is owed when an
agency has not formulated an official interpretation, but is merely advancing a
litigation position. See United States v. Able Time,
Inc., 545 F.3d 824, 836 (9th Cir. 2008); United States v. Trident
Seafoods Corp., 60 F.3d
556, 559 (9th Cir. 1995).[6] Finally, “judicial deference is not necessarily
warranted where courts have experience in the area and are fully competent to
decide the issue.” Monex Int’l, Ltd. v. Commodity
Futures Trading Comm’n, 83 F.3d 1130, 1133 (9th Cir.
1996).
A
state agency’s interpretation of a federal statute is not entitled to
deference. See Orthopaedic Hosp. v. Belshe, 103 F.3d
1491, 1495 (9th Cir. 1997)
(review is de novo); cf. JG v. Douglas County Sch.
Dist., 552 F.3d
786, 798 n.8 (9th Cir. 2008)
(explaining that although a state agency’s interpretation of federal law is not
entitled to deference, “the Secretary’s approval of that agency’s
interpretation is due some deference because it shows a federal agency’s
interpretation of the federal statute that it is charged to administer.”).
Agency’s
factual findings are reviewed under the substantial evidence standard. See Kappos v. Hyatt, 566 U.S. 431, 132 S. Ct. 1690, 1694 (2012); Dickinson v. Zurko, 527 U.S.
150, 153-61 (1999)
(rejecting “clearly erroneous” review and reaffirming substantial evidence); East Bay Auto. Council v. NLRB, 483 F.3d 628, 633 (9th Cir.
2007);
Alaska Dep’t of Health &
Soc. Servs. v. Ctrs. for Medicare and Medicaid Servs., 424 F.3d 931, 937 (9th Cir.
2005);
Lucas v. NLRB, 333 F.3d 927, 931 (9th Cir.
2003). Substantial evidence means more than a mere
scintilla but less than a preponderance; it means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. See NLRB v. Int’l Bhd. of Elec.
Workers, Local 48, 345 F.3d
1049, 1054 (9th Cir. 2003);
De la Fuente II v. FDIC, 332 F.3d
1208, 1220 (9th Cir. 2003). The standard, however, is “extremely
deferential” and a reviewing court must uphold the agency’s findings “unless
the evidence presented would compel a reasonable factfinder to reach a
contrary result.” See Monjaraz-Munoz v. INS, 327 F.3d
892, 895
(9th Cir.), amended by 339 F.3d 1012 (9th Cir. 2003) (internal quotation marks and citation
omitted).[7] If the evidence is susceptible to more than
one rational interpretation, the court may not substitute its judgment for that
of the agency. See Snoqualmie Indian Tribe v. FERC, 545 F.3d 1207, 1212 (9th Cir. 2008); Bear Lake Watch, Inc. v. FERC,
324 F.3d 1071, 1076 (9th Cir. 2003); McCartey v. Massanari, 298 F.3d 1072, 1075 (9th
Cir. 2002).
The
substantial evidence standard requires the appellate court to review the
administrative record as a whole, weighing both the evidence that supports the
agency’s determination as well as the evidence that detracts from it. See De la Fuente, 332 F.3d
at 1220
(reviewing the record as a whole); Mayes v. Massanari, 276 F.3d 453, 458-59 (9th
Cir. 2001);
Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.
1996).
A
district court’s decision to exclude extra‑record evidence when reviewing
an agency’s decision is reviewed for an abuse of discretion. See Tri-Valley CAREs v. U.S. Dep’t
of Energy, 671 F.3d 1113, 1124 (9th Cir. 2012); Northwest Envtl. Advocates v. Nat’l
Marine Fisheries Serv., 460 F.3d 1125, 1133 (9th Cir. 2006); Partridge v. Reich,
141 F.3d 920, 923 (9th Cir. 1998);
Southwest Ctr. for Biological
Diversity v. United States Forest Serv., 100 F.3d 1443, 1447 (9th
Cir. 1996);
see also Bear Lake Watch, 324 F.3d
at 1077 n.8
(declining to review extra-record evidence).
Note
that when an agency and a hearings officer disagree, the court reviews the
decision of the agency, not the hearings officer. See Maka v. INS, 904 F.2d
1351, 1355 (9th Cir. 1990),
amended by 932 F.2d 1352 (9th Cir. 1991); NLRB v. Int’l Bhd. of Elec.
Workers, Local 77, 895 F.2d 1570, 1573 (9th
Cir. 1990).[8] Thus, the standard of review is not modified
when such a disagreement occurs. See Maka, 904 F.2d
at 1355;
Int’l Bhd., 895 F.2d at 1573. When the agency rejects the hearings
officer’s credibility findings, however, it must state its reasons and those
reasons must be based on substantial evidence.
See Maka, 904 F.2d
at 1355;
Howard v. Heckler, 782 F.2d 1484, 1487 (9th
Cir. 1986).
This
court defers to credibility determinations made by hearings officers. See Manimbao v. Ashcroft, 329 F.3d
655, 658 (9th Cir. 2003);
Underwriters Lab., Inc. v.
NLRB, 147 F.3d 1048, 1051 (9th
Cir. 1998). Such credibility determinations must be
upheld unless they are “inherently or patently unreasonable.” Retlaw Broad. Co. v. NLRB, 53 F.3d 1002, 1005 (9th Cir.
1995)
(internal quotation omitted); see also Healthcare Employees Union,
Local 399 v. NLRB, 463 F.3d
909, 914 n.8 (9th Cir. 2006). Although deference is given, a hearings
officer must give specific, cogent reasons for adverse credibility
findings. See Manimbao, 329 F.3d
at 658;
Gui v. INS, 280 F.3d 1217, 1225 (9th
Cir. 2002);
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998).
“The Bonneville Power Administration (“BPA”) is an
agency within the Department of Energy that markets the energy output of
federal power projects in the Pacific Northwest.” Indus. Customers of Nw. Utilities v. Bonneville Power
Admin., 767 F.3d
912, 915 (9th Cir. 2014).
BPA’s decisions are reviewed
pursuant to the Pacific Northwest Electric Power Planning and Conservation Act
of 1980. See Public Power Council, Inc. v
Bonneville Power Admin., 442 F.3d
1204, 1209-10 (9th Cir. 2006);
Puget Sound Energy, Inc. v.
United States, 310 F.3d 613, 617 (9th Cir.
2002). Review is under the Administrative Procedures
Act. See Public Power Council, 442 F.3d at
1209-10;
Vulcan Power Co. v. Bonneville
Power Admin., 89 F.3d 549, 550 (9th Cir.
1996)
(per curiam). Thus, the agency’s final action may be set
aside only if it is arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law. See Pacific Northwest Generating
Co-op. v. Dep’t of Energy, 596 F.3d
1065, 1072 (9th Cir. 2010); Public Power Council,
442 F.3d at 1209;
Confederated Tribes of the
Umatilla Indian Reservation v. Bonneville Power Admin., 342 F.3d 924, 928 (9th Cir.
2003);
M-S-R Public Power Agency, 297 F.3d 833, 841 (9th Cir.
2002)
(noting “review of final BPA actions is extremely limited”); Vulcan Power, 89 F.3d at 550. Review under this standard is to be searching
and careful, but remains narrow, and a court is not to substitute its judgment
for that of the agency. See Public Power Council, 442 F.3d
at 1209;
Aluminum Co. of Amer. v.
Administrator, Bonneville Power Admin., 175 F.3d 1156, 1160 (9th Cir. 1999); Northwest Res. Info. Ctr.,
Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1383 (9th Cir.
1994)
(internal quotation omitted).
The
court will accord “substantial deference” to the BPA’s interpretation of the
statute and to its application and interpretation of its regulations. See Public Power Council, 442 F.3d
at 1210; Confederated Tribes,
342 F.3d at 928. Thus, to uphold the BPA’s interpretation of
the Act, the court “need only conclude that it is a reasonable interpretation
of the relevant provisions.” See Northwest Envtl. Def. Ctr. v.
Bonneville Power Admin., 117 F.3d
1520, 1530 (9th Cir. 1997)
(internal quotation marks and citation omitted). [9]
Whether
a district court has subject matter jurisdiction under the Northwest Power
Planning Act to hear challenges to a final agency action by the BPA is a
question of law reviewed de novo. See
Transmission Agency of
California v. Sierra Pacific Power Co., 295 F.3d 918, 925 (9th Cir. 2002).
A decision by the Secretary of Energy will be set
aside only if it is arbitrary, capricious, or otherwise not in accordance with
law. See Nevada v. U.S. Dep’t of Energy, 133 F.3d
1201, 1204 (9th Cir. 1998). Statutory interpretations are reviewed de
novo. See id.; Nevada v. Watkins, 914 F.2d 1545, 1552 (9th
Cir. 1990). Nevertheless, the agency’s construction of a
statute it is implementing should not be set aside unless that construction
conflicts with clear congressional intent or is unreasonable. See County of Esmeralda v. U.S. Dep’t
of Energy, 925 F.2d
1216, 1219 (9th Cir. 1991).
Final
administrative actions of the EPA are reviewed under the standards established
by the Administrative Procedures Act. See
Helping Hand Tools v. U.S. Envtl. Prot. Agency, 848 F.3d 1185, 1193 (9th
Cir. 2016); Ober v. Whitman, 243 F.3d
1190, 1193 (9th Cir. 2001);
Defenders of Wildlife v.
Browner, 191 F.3d 1159, 1162 (9th
Cir.), amended by 197 F.3d 1035 (9th Cir. 1999). Whether an EPA decision is final is a
question of subject matter jurisdiction reviewed de novo. See City of San Diego v. Whitman, 242 F.3d
1097, 1101 (9th Cir. 2001).
The
court may reverse the EPA’s decision only if it is arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law. See Helping Hand Tools, 848 F.3d at 1194; Great Basin Mine Watch v. EPA, 401 F.3d 1094, 1098 (9th Cir. 2005); Ober, 243 F.3d at 1193; Exxon Mobil Corp. v. EPA, 217 F.3d 1246, 1248 (9th
Cir. 2000). Deference is owed to the EPA’s interpretation
of its own regulations if those regulations are not unreasonable. See Western States Petroleum Ass’n
v. EPA, 87 F.3d
280, 283 (9th Cir. 1996);
see also Pronsolino v. Nastri, 291 F.3d 1123, 1131-32 (9th
Cir. 2002)
(explaining levels of deference owed to the EPA). The “EPA must ‘articulate[
] a rational connection between the facts found and the choice made.’ Sierra Club v. EPA, 346 F.3d 955,
961 (9th Cir. 2003)
(alteration in original) (quoting Ariz. Cattle Growers’ Ass’n v.
U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001)).” Helping Hand Tools, 848 F.3d at 1194.
“[The
court does] not simply review whether it was arbitrary or capricious” for the
Board to reject a petitioner’s claims that EPA clearly erred. Citizens for Clean Air v. EPA,
959 F.2d 839, 845–46 (9th Cir. 1992). “Rather, [the court]
conduct[s] a deferential review of the entire agency action,” including whether
[EPA’s decision] is based on a clearly erroneous finding of fact or conclusion
of law. Id. at 846.
Helping Hand Tools, 848 F.3d at
1194.
FCC
decisions may be set aside if arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. See
California v. FCC, 75 F.3d
1350, 1358 (9th Cir. 1996);
California v. FCC, 39 F.3d 919, 925 (9th Cir.
1994);
see also FCC v. Fox Television Studios, 556 U.S.
502, 513 (2009). Under that standard, this court must
determine whether the FCC’s decision was a reasonable exercise of its
discretion, based on consideration of relevant factors, and supported by the
record. See California, 75 F.3d at 1358; California, 39 F.3d at 925. “The scope of judicial review under this
standard is narrow and an agency’s interpretation of its own policies and prior
orders is entitled to deference.” California, 39 F.3d at 925; see
also Fox Television Studios, 556 U.S. at 513; Howard v. America Online Inc., 208 F.3d
741, 752-53 (9th Cir. 2000)
(upholding FCC’s “reasonable” interpretation of the Communications Act).
Whether
a district court has subject matter jurisdiction to enforce orders of the FCC
is a question of law reviewed de novo. See United States v. Peninsula
Communications, Inc., 287 F.3d
832, 836 (9th Cir. 2002)
(reviewing district court’s refusal to dismiss for lack of jurisdiction). The district court’s decision whether to stay
enforcement proceedings is reviewed for an abuse of discretion. See id. at 838.
FERC’s findings of fact are conclusive if supported by
substantial evidence. See California Pub. Utilities Comm’n v. Fed. Energy Regulatory
Comm’n, 854 F.3d 1136, 1146 (9th
Cir. 2017) (“FERC must be able to demonstrate that it has made a
reasoned decision based upon substantial evidence in the record.” (internal
quotation marks and citation omitted)); Snoqualmie Indian Tribe v. FERC,
545 F.3d 1207, 1212 (9th Cir. 2008); Public Utilities Comm’n of
California v. FERC, 462 F.3d 1027, 1045 (9th
Cir. 2006);
Bear Lake Watch, Inc. v. FERC,
324 F.3d 1071, 1073 (9th Cir. 2003); American Rivers v. FERC, 201 F.3d 1186, 1194 (9th
Cir. 2000). The court “will not disturb such findings even if ‘the evidence is
susceptible of more than one rational interpretation.’” MPS Merch. Servs., Inc. v. Fed. Energy Regulatory Comm’n, 836 F.3d 1155, 1163 (9th
Cir. 2016).
Review of the agency’s decision is limited to the
arbitrary, capricious, abuse of discretion standard. See California Dep’t of Water Res. v. FERC, 489 F.3d 1029, 1035 (9th
Cir. 2007);
Public Utilities Comm’n, 462 F.3d at 1045; California Dep’t of Water Res.
v. FERC, 341 F.3d 906, 910 (9th Cir.
2003);
see also California Pub. Utilities
Comm’n, 854 F.3d
at 1146. “The Court …
must ensure that FERC articulate[s] a satisfactory explanation for its action
including a rational connection between the facts found and the choice
made.” California Pub. Utilities Comm’n, 854 F.3d at 1146
(internal quotation marks and citation omitted).
Deference
is owed to FERC’s interpretation of its own regulations unless plainly
erroneous. See California Dep’t of Water Res., 489 F.3d at 1035; Skokomish Indian Tribe v. FERC., 121 F.3d 1303, 1306 (9th
Cir. 1997);
Rainsong Co. v. FERC, 106 F.3d 269, 272 (9th Cir.
1997). Deference is also owed to FERC’s
interpretation of the law it is charged with administering. See Montana Consumer Counsel v. FERC, 659 F.3d 910, 915 (9th Cir. 2011); California Dep’t of Water Res., 489 F.3d at 1035; California Trout, Inc. v. FERC, 313 F.3d 1131, 1134 (9th
Cir. 2002)
(noting Chevron deference); American Rivers, 201 F.3d at 1194
(same). Note, however, that FERC’s
interpretation of its statutory mandate is reviewed de novo. See City of Fremont v. FERC, 336 F.3d
910, 914 (9th Cir. 2003);
Bear Lake Watch, 324 F.3d at 1073; California Trout, 313 F.3d at 1133; American Rivers, 201 F.3d at 1194.
“FERC’s discretion is at its zenith
when ... fashioning ... remedies and sanctions.” MPS Merch. Servs., Inc. v. Fed. Energy Regulatory
Comm’n, 836 F.3d
1155, 1163 (9th Cir. 2016) (internal quotation marks and citation
omitted).
See III. Civil Proceedings, C. Trial Decisions in Civil Cases, 27. Substantive Areas of Law, x. Labor Law, v. Federal Labor Relations Authority.
The FTC’s factual findings are conclusive if supported
by evidence sufficient to permit a reasonable mind to accept the Commission’s
conclusions. See Southwest Sunsites, Inc. v.
FTC, 785 F.2d
1431, 1435 (9th Cir. 1986);
accord Litton Indus., Inc. v. FTC, 676 F.2d
364, 368 (9th Cir. 1982). The Commission’s findings of fact are
reviewed under the substantial evidence standard. See California Dental Ass’n v. FTC, 128 F.3d
720, 725 (9th Cir. 1997),
vacated on other grounds, 526 U.S. 756 (1999); Olin Corp. v. FTC, 986 F.2d 1295, 1297 (9th
Cir. 1993). Under that standard, the Commission’s
findings of fact will be upheld if they are supported by “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
California Dental Ass’n, 128 F.3d at 725; Olin, 986 F.2d at 1297.
Legal
issues are for the courts to resolve, although even in considering such issues
the court is to give deference to the Commission’s informed judgments. See California Dental Ass’n, 128 F.3d
at 725;
Olin, 986 F.2d at 1297; see
also United States v. Louisiana‑Pac.
Corp., 754 F.2d
1445, 1447 (9th Cir. 1985)
(great deference should be given to the FTC’s interpretation of the Federal
Trade Commission Act). Whether a
district court has given the FTC’s findings of fact and conclusions of law
appropriate weight is reviewed de novo. See
Pool Water Products v. Olin
Corp., 258 F.3d
1024, 1030 (9th Cir. 2001).
Note the INS was abolished by the Homeland Security
Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135, and the majority of its immigration enforcement functions were
transferred to the Bureau of Immigration and Customs Enforcement, a part of the
Department of Homeland Security. See Hernandez v. Ashcroft, 345 F.3d
824, 828 n.2 (9th Cir. 2003).
See III. Civil Proceedings, C. Trial Decisions in Civil
Cases, 27. Substantive Areas of Law, v. Immigration.
Decisions
of the IBLA are reversed only if “arbitrary, capricious, not supported by
substantial evidence, or contrary to law.” Akootchook v. United States, 271 F.3d 1160, 1164 (9th
Cir. 2001);
Hjelvik v. Babbitt, 198 F.3d 1072, 1074-75 (9th
Cir. 1999)
(noting limited standard of review); Hoefler v. Babbitt, 139 F.3d 726, 727 (9th Cir.
1998)
(noting review is under the APA). To
make that determination, “[t]his court carefully search[es] the entire record
to determine whether it contains such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion and whether it demonstrates
that the decision was based on a consideration of relevant factors.” Akootchook, 271 F.3d at 1164
(quoting Hjelvik, 198 F.3d at 1074).
See III. Civil Proceedings, C. Trial Decisions in Civil Cases, 27. Substantive Areas Labor Law, x. Labor Law.
The
Mine Safety and Health Administration’s decisions are reviewed under the
arbitrary and capricious standard. See
Stillwater Mining Co. v.
Federal Mine Safety & Health Review Comm’n, 142 F.3d
1179, 1182 (9th Cir. 1998). Findings of fact are reviewed for substantial
evidence. See id. at 1183.
This court will defer to the agency’s interpretation of its regulations. See D.H. Blattner & Sons, Inc.
v. Secretary of Labor, Mine Safety and Health Comm., 152 F.3d
1102, 1105 (9th Cir. 1998)
(noting interpretations must be “reasonable” and “conform” to the purpose and
wording of the regulations).
See III. Civil Proceedings, C. Trial Decisions in Civil
Cases, 27. Substantive Areas of Law, x. Labor Law, iv. National Labor Relations
Board.
Review of an order of the NTSB is “narrowly
circumscribed.” See Olsen v. NTSB, 14 F.3d
471, 474 (9th Cir. 1994). Review is conducted in accordance with the Administrative
Procedure Act; this court must affirm unless the NTSB’s order is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law. See Gilbert v. NTSB, 80 F.3d
364, 368 (9th Cir. 1996);
Borregard v. NTSB, 46 F.3d 944, 945 (9th Cir.
1995). The NTSB’s decision must be based on the
relevant factors and may not constitute a clear error of judgment. See Gilbert, 80 F.3d at
368. The Board’s factual findings are conclusive if
supported by substantial evidence. See
Borregard, 46 F.3d at 945; Olsen, 14 F.3d at 474. Pure legal questions are reviewed de
novo. See Wagner v. NTSB, 86 F.3d 928, 930 (9th Cir.
1996);
Borregard, 46 F.3d at 945. The agency’s interpretations of its own
organic statute and regulations, however, are accorded deference, unless the
administrative construction is clearly contrary to the plain and sensible
meaning of the statute or regulation. See Borregard, 46 F.3d at
945;
Reno v. NTSB, 45 F.3d 1375, 1378 (9th Cir.
1995). The Board’s award of attorneys’ fees is
reviewed for an abuse of discretion. See
Mendenhall v. NTSB, 213 F.3d
464, 470 (9th Cir. 2000)
(as amended on denial of rehearing), overruled
on other grounds by Gonzalez v. Arizona, 677 F.3d 383,
389 n.4 (9th Cir. 2012).
The
appellate court must “uphold a decision of the OSHRC unless it is arbitrary and
capricious, not in accordance with the law, or in excess of the authority
granted by the OSHA….[T]he Commission’s factual findings [are reviewed] under
the substantial evidence standard; and [the court] accept[s] reasonable factual
inferences drawn by the Commission.” Loomis Cabinet Co. v. OSHRC, 20 F.3d 938, 941 (9th Cir.
1994)
(citations omitted). The court “must
uphold the factfinder’s determinations if the record contains such relevant
evidence as reasonable minds might accept as adequate to support a conclusion,
even if it is possible to draw different conclusions from the evidence.” Id.; see also R. Williams Const. Co. v. OSHRC, 464 F.3d 1060, 1063 (9th Cir. 2006). Thus, the Commission’s findings must
be affirmed “if supported by substantial evidence on the record considered as a
whole.” See Chao v. Symms Fruit Ranch,
Inc., 242 F.3d
894, 897 (9th Cir. 2001)
(internal quotation omitted); see also R. Williams Constr. Co., 464 F.3d
at 1063.
“While
the proper interpretation of a statute is a question of law reviewed de novo,
the court must give deference to [OSHRC’s] interpretation of statutes that it
administers.” Herman v. Tidewater Pac., Inc., 160 F.3d 1239, 1241 (9th
Cir. 1998)
(citations omitted). Note, however, that
where interpretations of the Secretary of Labor and the Commission are in
conflict, this court must defer to the Secretary’s reasonable interpretation. See Chao, 242 F.3d
at 897;
Herman, 160 F.3d at 1241. When the meaning of regulatory language is
ambiguous, the Secretary’s interpretation controls “so long as it is
reasonable, that is, so long as the interpretation sensibly conforms to the
purpose and wording of the regulations.” Crown Pacific v. OSHRC, 197 F.3d 1036, 1038 (9th
Cir. 1999)
(internal quotation omitted); see also Chao, 242 F.3d
at 897
(noting deference is owed only if the Secretary’s interpretation is reasonable).
The RRB’s findings of fact are conclusive “if
supported by evidence and in the absence of fraud.” 45 U.S.C. § 355(f). This circuit has construed this standard to
be a “substantial evidence” test. See
Calderon v. Railroad
Retirement Bd., 780 F.2d
812, 813 (9th Cir. 1986);
Estes v. Railroad Retirement
Bd., 776 F.2d 1436, 1437 (9th
Cir. 1985). The Board’s application of a regulation will
be upheld if it is a permissible construction of the Railroad Retirement
Act. See Capovilla v. Railroad
Retirement Bd., 924 F.2d 885, 887 (9th Cir.
1991).
The
scope of review of Railway Adjustment Board awards under the Railway Labor Act
(RLA) is “among the narrowest known to the law.” Fennessy v. Southwest Airlines, 91 F.3d 1359, 1362 (9th Cir.
1996);
English v. Burlington N. R.R., 18 F.3d 741, 743 (9th Cir.
1994). The RLA allows the court to review Adjustment
Board decisions on three specific grounds only: (1) failure of the Board to
comply with the Act; (2) failure of the Board to conform, or confine itself to
matters within its jurisdiction; and (3) fraud or corruption. See Fennessy, 91 F.3d at 1362; English, 18 F.3d at 743-44. Whether a district court has subject matter
jurisdiction under the RLA is a question of law reviewed de novo. See Ass’n of Flight Attendants v.
Horizon Air Indus., Inc., 280 F.3d
901, 904 (9th Cir. 2002).
The
Securities Exchange Commission’s (“SEC”) factual findings are reviewed for
substantial evidence. See Ponce v. SEC, 345 F.3d
722, 728 (9th Cir. 2003);
Krull v. SEC, 248 F.3d 907, 911 (9th Cir.
2001);
Alderman v. SEC, 104 F.3d 285, 288 (9th Cir.
1997). Deference is owed to the agency’s
construction of its own regulations unless its interpretation is “unreasonable”
or “plainly erroneous.” See Ponce, 345 F.3d
at 728;
Alderman 104 F.3d at 288; see
also Vernazza v. SEC, 327 F.3d
851, 858 (9th Cir. 2003),
amended by 335 F.3d 1096 (9th Cir. 2003)
(noting when deference is owed).
The
district court’s interpretation of the Securities Exchange Act is reviewed de
novo. See SEC v. McCarthy, 322 F.3d
650, 654 (9th Cir. 2003);
McNabb v. SEC, 298 F.3d 1126, 1130 (9th
Cir. 2002). The court’s determination that a transaction
is a security for purposes of the Act is reviewed de novo. See SEC v. Rubera, 350 F.3d
1084, 1089 (9th Cir. 2003). Whether the court’s decision to enforce a SEC
order violates due process is a question of law reviewed de novo. See McCarthy, 322 F.3d at 654. The district court’s decision to issue an
injunction to enforce an SEC order is reviewed for an abuse of discretion. See SEC v. Wallenbrock, 313 F.3d
532, 536 (9th Cir. 2002).
The
SEC’s imposition of sanctions is reviewed for an abuse of discretion. See Ponce, 345 F.3d
at 728-29;
Vernazza, 327 F.3d at 858; Krull, 248 F.3d at 912. A disgorgement order is reviewed for an abuse
of discretion. See SEC v. First Pac. Bancorp, 142 F.3d
1186, 1190 (9th Cir. 1998);
SEC v. Colello, 139 F.3d 674, 675 (9th Cir.
1998). The district court’s decision to freeze
assets to enforce a contempt order arising from the failure to disgorge is
reviewed for an abuse of discretion. See
SEC v. Hickey, 322 F.3d
1123, 1128
(9th Cir.), amended by 335 F.3d 834 (9th Cir. 2003).
See also III. Civil Proceedings, C. Trial
Decisions in Civil Cases, 27. Substantive Areas of Law, z. Securities.
A district court’s order upholding the Commissioner’s
denial of benefits is reviewed de novo. See
Revels v. Berryhill, 874 F.3d 648, 653 (9th Cir. 2017); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir.
2017);
Carillo-Yeras v. Astrue, 671 F.3d 731, 734 (9th Cir.
2011);
Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.
2007);
Gillett-Netting v. Barnhart,
371 F.3d 593, 595 (9th Cir. 2004);
Batson v. Commissioner of Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th
Cir. 2004);
Benton v. Barnhart, 331 F.3d 1030, 1035 (9th
Cir. 2003). “Our review of the Commissioner’s decision is
‘essentially the same as that undertaken by the district court.’” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
1999)
(quoting Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.
1985)).
The decision
of the Commissioner must be affirmed if it is supported by substantial evidence
and the Commissioner applied the correct legal standards. See Carillo-Yeras, 671 F.3d at 734; Lewis, 498 F.3d at 911; Batson, 359 F.3d at 1193; Benton, 331 F.3d at 1035; Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir.
2003). When reviewing factual determinations by the
Commissioner, acting through the administrative law judge (“ALJ”), this court
affirms if substantial evidence supports the determinations. See Celaya v. Halter, 332 F.3d
1177, 1180 (9th Cir. 2003);
Saelee v. Chater, 94 F.3d 520, 521 (9th Cir.
1996) (per curiam).
Substantial
evidence is more than a mere scintilla, but less than a preponderance. See Revels, 874 F.3d at 653; Lewis, 498 F.3d at 911; Howard ex rel. Wolff v.
Barnhart,
341 F.3d 1006, 1011 (9th Cir. 2003); Connett, 340 F.3d at 873; Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir.
2001). Substantial evidence, considering the entire
record, is relevant evidence which a reasonable person might accept as adequate
to support a conclusion. Howard, 341 F.3d at 1011; Morgan v. Commissioner of the
Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.
1999);
Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
1998). If the evidence can reasonably support either
affirming or reversing the Commissioner’s conclusion, the court may not
substitute its judgment for that of the Commissioner. See Lewis, 498 F.3d at 911; Batson,
359 F.3d at 1196;
McCartey v. Massanari, 298 F.3d 1072, 1075 (9th
Cir. 2002).[10]
The
ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities.
See Benton, 331 F.3d at 1040; Edlund v. Massanari, 253 F.3d 1152, 1156 (9th
Cir. 2001) (as amended on rehearing). The ALJ, however, cannot discount a claim of
excess pain without making specific findings justifying that decision. See Johnson v. Shalala, 60 F.3d
1428, 1433 (9th Cir. 1996). These findings must be supported by clear and
convincing reasons and substantial evidence in the record as a whole. See id. The ALJ’s determinations of law are reviewed
de novo, although deference is owed to a reasonable construction of the
applicable statutes. See Edlund, 253 F.3d
at 1156;
McNatt v. Apfel, 201 F.3d 1084, 1087 (9th
Cir. 2000).
The
Commissioner’s interpretation of social security statutes or regulations is
entitled to deference. See Campbell ex rel. Campbell v.
Apfel, 177 F.3d
890, 893 (9th Cir. 1999)
(regulation and statute); Jamerson v. Chater, 112 F.3d 1064, 1066 (9th
Cir. 1997)
(statute); Esselstrom v. Chater, 67 F.3d 869, 872 (9th Cir.
1995)
(regulations).[11] A court need not accept an agency’s
interpretation of its own regulations if that interpretation is inconsistent
with the wording of the regulations or statute under which the regulations were
promulgated. Esselstrom, 67 F.3d at 872.
Whether
new evidence justifies a remand to the Commissioner is reviewed de novo. See Mayes v. Massanari, 276 F.3d
453, 461-62 (9th Cir. 2001)
(clarifying standard); Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). Whether the claimant has shown good cause is
reviewed, however, for an abuse of discretion.
See Mayes, 276 F.3d at 462. The district court’s decision whether to
remand for further proceedings or for immediate payment of benefits is reviewed
for an abuse of discretion. See Bunnell v. Barnhart, 336 F.3d
1112, 1114 (9th Cir. 2003);
Harman, 211 F.3d at 1175-78.
Fee awards made pursuant to the Social Security Act, 42 U.S.C. § 406(b)(1), are reviewed for an abuse of discretion. See Crawford v. Astrue, 586 F.3d 1142, 1146-47 (9th Cir. 2009) (en banc); Clark v. Astrue, 529 F.3d 1211, 1213 (9th Cir. 2008); Widrig v. Apfel, 140 F.3d 1207, 1209 (9th Cir. 1998). An abuse of discretion occurs if the district court does not apply the correct law or rests its decision on a clearly erroneous finding of fact. See Clark, 529 F.3d at 1214.
[1] See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d
832, 858 n.36 (9th Cir. 2003);
Forest Guardians v. U.S.
Forest Serv., 329 F.3d 1089, 1097 (9th
Cir. 2003);
Arizona Cattle Growers’ Ass’n
v. U.S. Fish and Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001); Brower v. Evans, 257 F.3d 1058, 1065 (9th
Cir. 2001).
[2] Fry v. DEA, 353 F.3d 1041, 1043 (9th
Cir. 2003);
Envtl. Def. Ctr., 344 F.3d at 858 n.36; Arizona Cattle Growers’ Ass’n, 273 F.3d at 1235
(noting “narrow scope” of review); Ninilchik Traditional Council
v. United States, 227 F.3d 1186, 1194 (9th
Cir. 2000).
[3] See
also Sierra Club v. U.S. Envtl.
Prot. Agency, 671 F.3d 955, 962 (9th Cir. 2012) (explaining that interpretations found in
agency manuals, enforcement guidelines, and policy statements, lack the force
of law and thus do not warrant deference); Cmty. Hosp. of Monterey
Peninsula v. Thompson, 323 F.3d
782, 792 (9th Cir. 2003)
(“considerable less deference” is owed to agency’s interpretation that
conflicts with prior interpretation); Santamaria‑Ames v. INS, 104 F.3d 1127, 1132 n.7 (9th
Cir. 1996)
(no deference owed to interpretation that is contrary to plain and sensible
meaning of regulation); United States v. Trident
Seafoods Corp., 60 F.3d 556, 559 (9th Cir.
1995)
(no deference owed to interpretation offered by counsel where the agency has
not established a position).
[4] See
also Defenders of Wildlife v.
Browner, 191 F.3d
1159, 1162
(9th Cir.) (describing two-step Chevron review, and noting when Congress
leaves a statutory gap for the agency to fill, any administrative regulations
must be upheld unless they are arbitrary, capricious, or manifestly contrary to
the statute), amended by 197 F.3d 1035 (9th Cir. 1999).
[5] See
also American Fed. of Government
Employees v. FLRA, 204 F.3d
1272, 1275 (9th Cir. 2000)
(noting agency’s interpretation of a statute outside of its administration is
reviewed de novo).
[6] See
also Resource Invs., Inc. v. U.S.
Army Corps of Eng’rs, 151 F.3d
1162, 1165 (9th Cir. 1998)
(deference does not extend to agency litigating positions that are wholly
unsupported by regulations, rulings, or administrative practice).
[7] See
also Krull v. SEC, 248 F.3d
907, 911 (9th Cir. 2001)
(noting court must “weigh pros and cons in the whole record with a deferential
eye”); Alderman v. SEC, 104 F.3d 285, 288 (9th Cir.
1997)
(same).
[8] See
also Northern Montana Health Care
Ctr. v. NLRB, 178 F.3d
1089, 1093 (9th Cir. 1999)
(as amended) (“We employ the substantial evidence test even if the Board=s decision differs materially from the ALJ’s.”); Perez v. INS, 96 F.3d 390, 392 (9th Cir.
1996)
(where BIA conducts independent review of the IJ’s findings, court reviews
BIA’s decision, not IJ’s).
[9] See also
Confederated Tribes of the
Umatilla Indian Reservation v. Bonneville Power Admin., 342 F.3d 924, 928-29 (9th
Cir. 2003)
(stating standard); Kaiser Aluminum & Chem.
Corp. v. Bonneville Power Admin., 261 F.3d 843, 848-49 (9th Cir. 2001) (noting
court may reject a construction inconsistent with statutory mandates or that
frustrate the statutory policies that Congress sought to implement).
[10] See,
e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 (9th
Cir. 2001)
(as amended on rehearing)
(reversing for lack of substantial evidence to support ALJ rejection of
examining psychologist’s findings); Holohan v. Massanari, 246 F.3d 1195, 1205 (9th
Cir. 2001)
(reversing for lack of substantial evidence).
[11] See
also Pagter v. Massanari, 250 F.3d
1255, 1262 (9th Cir. 2001)
(determining SSA interpretation was not erroneous or inconsistent with the
regulation).