Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

Forget about thrilling competition, international cooperation, the majesty of London’s venues, and medal tallies.

Without question, the most enduring aspect of the 2012 Olympics is the widely distributed photograph of United States gymnast McKayla Maroney after she failed to win a gold medal in the vault.

The bland phrase “body language” inadequately describes the message conveyed by McKayla’s image in this photo – standing on the podium with arms crossed, eyes steely, lips pursed and twisted sharply to one side. Not happy. Very not happy.



This photo has taken on a life of its own as an internet meme under the tagline, “McKayla is not impressed.” Google will take you to many photos in which McKayla’s sour visage has been superimposed on various events and scenes with which she is not impressed – Moses parting the Red Sea, John F. Kennedy delivering his inaugural address, Neil Armstrong walking on the moon.

The “McKayla is not impressed” meme came to mind as I read Sackett v. Environmental Protection Agency, 132 S. Ct. 1367 (2012).

An apt headnote for this decision would read as follows: “The Court Is Not Impressed.”

Sackett addressed whether an EPA compliance order issued under the Clean Water Act was “final agency action” that could be challenged in a civil suit under the Administrative Procedure Act. This compliance order directed the Sacketts, who had filled in part of a residential lot with dirt and rock in preparation for building a house near Priest Lake in Idaho, to restore the lot to its original condition in accordance with an EPA-created Restoration Work Plan. According to the EPA, this lot contains “wetlands” adjacent to a “navigable water” such that use of fill material on the lot constitutes a “discharge of pollutants” in violation of the Clean Water Act. The EPA can impose substantial fines for failing to obey a compliance order.

The Sacketts asked the EPA to hold a hearing to address whether their property really is subject to the Clean Water Act. The EPA refused. The Sacketts then sued the EPA in federal district court under the Administrative Procedure Act seeking declaratory and injunctive relief. This statute provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” The district court dismissed for want of subject matter jurisdiction and the Ninth Circuit affirmed, concluding that the Administrative Procedure Act precludes pre-enforcement judicial review of compliance orders.

The Supreme Court reversed 9-0 in an opinion written by Justice Scalia. The opinion concluded that the compliance order is final agency action for which there is no adequate remedy other than review under the Administrative Procedure Act, and that the Clean Water Act does not preclude review. Justice Ginsburg and Justice Alito wrote concurring opinions.

If you stare at the Supreme Court’s opinion long enough in a brightly lit room, an image will emerge in which Justice Scalia peers back at you with eyes narrowed, arms crossed, and pursed lips askew. The opinion considered several EPA arguments in support of dismissal and found many ways to say, “Not impressed.”
  • “The Government argues that, because Congress gave the EPA the choice between a judicial proceeding and an administrative action, it would undermine the [Clean Water Act] . . . to allow judicial review of the latter.” Id. at 1371. Not impressed. “But that argument rests on the question-begging premise that the relevant difference between a compliance order and an enforcement proceeding is that only the latter is subject to judicial review. There are eminently sound reasons other than insulation from judicial review why compliance orders are useful.” Id. 
  • “The Government also notes that compliance orders are not self-executing, but must be enforced by the agency in a plenary judicial action.” Id. Not impressed. “But the [Administrative Procedure Act] . . . provides for judicial review of all final agency actions, not just those that impose a self-executing sanction.” Id. 
  • “The Government further urges us to consider that Congress expressly provided for prompt judicial review, on the administrative record, when the EPA assesses administrative penalties after a hearing . . . but did not expressly provide for review of compliance orders.” Id. Not impressed. “But if the express provision of judicial review in one section of a long and complicated statue were alone enough to overcome the [Administrative Procedure Act's] . . . presumption of reviewability for all final agency action, it would not be much of a presumption at all.” Id. 
  • “The Government warns that the EPA is less likely to use the orders if they are subject to judicial review.” Id. at 1374. Not impressed. “That may be true – but it will be true for all agency actions subjected to judicial review. The [Administrative Procedure Act’s] . . . presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.” Id. 
  • Still not impressed: “The cases on which the Government relies simply are not analogous.” Id. at 1373. 
There are a multitude of ways to say, “The court disagrees with your argument.”

One side of the spectrum conveys this message: “This is a tough issue, and you have offered a thoughtful, plausible argument for a ruling in your favor. However, other weighty considerations compel the court to rule against you.”

The other side of the spectrum conveys this message: “Fuggedaboutit.”

I would place Sackett close to the Fuggedaboutit side.

In part, the vigor with which the Supreme Court rejected arguments proffered by the EPA may reflect a perception that the agency took an unreasonable position in response to significant and legitimate concerns about the coercive effect of its compliance order.

Sackett provides a helpful reminder to consider not only whether a particular argument is logically sound and supported in the law, but also whether it is likely to sound reasonable to a disinterested third party. “I win” is the beginning of a discussion on appeal, not the end.

A skilled advocate expressly confronts this consideration by explaining that the client is entitled to win based on a ruling that has the added benefit of being a reasonable and appropriate treatment of legitimate, competing interests. This is the advocate who is more likely impress McKayla.

Have your own rewrite suggestion? Send it to: submissions@hbaappellatelawyer.org.