Media

In the earlier blog on the Pinnacle case, I discussed the facts and the procedural due process claim. In this second installment, we look at APA review and federal pleading in the 9th Circuit.

Moving on to the arbitrary and capricious claim, the district court had found that the decertification decision was not reviewable as a matter of law, and that Pinnacle had not properly pleaded a cognizable claim for relief under the APA. The Ninth Circuit first firmly rejected the notion that because a statute allows an agency to reach a conclusion about something, that this decision is beyond judicial review as a matter “committed to agency discretion.” NIJ has adopted rigorous scientific and physical standards for testing, and a court could look at NIJ’s actions in light of those objective standards. Double checking an agency’s work against its own rules is the proper function of APA judicial review.

Turning to the pleading issue, federal pleading practice was upended when Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), implemented the pleading of facts sufficient to show that a claim was “plausible on its face.” Ever since, at least in our federal cases, certain defense lawyers have been attempting to turn federal notice pleading into an even more rigorous exercise than fact pleading in Oregon.

However, in Pinnacle, the Ninth Circuit clarified that “conclusory” allegations of specific misconduct were sufficient to state a claim that NIJ did not follow its own rules. Pinnacle had alleged:

that the methods the NIJ uses to test body armor bear no relation to the standard set out in the Requirements—namely, that the armor will maintain its ballistic integrity over the life of the warranty. Pinnacle further alleges that the NIJ itself has admitted this. Finally, Pinnacle alleges that the NIJ violated the APA by failing to provide the data upon which revocation of the Notice of Compliance was based.

The Ninth Circuit held that “Pinnacle is not required to ‘demonstrate’ anything in order to survive a Rule 12(b)(6) motion to dismiss.” These allegations were enough, and the district court erred in dismissing the APA claim.

We’ll see what happens on remand, but if the Dragon skin® guys want to run some anecdotal testing to satisfy NIJ by shipping me one of their vests for six years, I won’t complain.