The opinion of the court was delivered by: Conti, District Judge.
This matter is before this court on the parties‟ cross-motions for summary judgment (ECF Nos. 19 and 23) and involves the review of a final agency determination. The applicable standard of review is set forth in the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06. Under that standard, this court must affirm the determinations of defendant United States Department of Agriculture ("defendant" or "agency").
At the case management conference held on May 2, 2011, the court addressed the procedures for filing a summary judgment motion, which included direct reference to the relevant rules and requirements for responding to a concise statement of material fact. On May 5, 2011, the court entered a written case management order which provided, inter alia, that the movant for summary judgment "shall file a motion for summary judgment . . . on or before June 7, 2011, with the concise statement of the facts not to exceed 15 pages." (ECF No. 16 at 1.) Additionally, the order provided that the "opposing party shall file its opposition . . . on or before July 7, 2011, with the response concise statement of the facts not to exceed 15 pages." Id.
On May 23, 2011, plaintiff William M. Uschock ("plaintiff" or "Uschock") filed a motion for summary judgment (ECF No. 19) and a supplement, which added a "closing statement" to his motion for summary judgment. (ECF No. 22.) On June 7, 2011, defendant filed its motion for summary judgment, brief and concise statement of material facts. (ECF Nos. 23, 24 and 25.) On June 10, 2011, plaintiff filed a counter brief in response to defendant‟s motion for summary judgment. (ECF No. 26.) Sometime in mid-July 2011, counsel for defendant "received a phone call from Plaintiff. During the conversation, [said counsel] reiterated the fact that Plaintiff [was] required to file a responsive concise statement of material facts and encouraged him to consult Rule 56 to answer any procedural questions." (ECF No. 30 at 2.)
On August 1, 2011, defendant filed a motion to have defendant‟s statement of material facts deemed admitted (ECF No. 30) and a "Combined Concise Statement of Material Facts." (ECF No. 31.) In its motion, defendant argued that, because plaintiff failed to file a responsive concise statement of facts as ordered by the court, each of the factual averments in defendant‟s statement of material facts must be deemed admitted. On August 23, 2011, plaintiff filed a reply to defendant‟s "Combined Concise Statement of Material Facts." (ECF No. 32.) In his reply, plaintiff raised several challenges to the factual averments, but never cited to anything in the record to support his challenges. Under these circumstances, the court on September 19, 2011 granted defendant‟s motion to have its statement of material facts deemed admitted. (ECF No. 33.)
Regardless of plaintiff‟s failure to file a concise statement of facts and the resultant consequences of deeming defendant‟s statement of material facts admitted for purposes of a summary judgment motion, the proper standard of review of an administrative action is different from the function it usually performs as a trier of fact, some of the procedures designed to prepare a case for trial do not work well when the court is reviewing agency proceedings. Specifically, a motion for summary judgment under rule 56 of the Federal Rules of Civil Procedure . . . makes no procedural sense when a district court is asked to undertake judicial review of administrative action. Such a motion is designed to isolate factual issues on which there is no genuine dispute, so that the court can determine what part of the case must be tried to the court or a jury. Nickol v. United States, 501 F.2d 1389, 1392 (10th Cir. 1974). Agency action, however, is reviewed, not tried. Factual issues have been presented, disputed, and resolved; and the issue is not whether the material facts are disputed, but whether the agency properly dealt with the facts. Only recently, the United States Court of Appeals for the Tenth Circuit has followed Nickol and cautioned, "When acting as a court of appeal, it is improper for a district court to use methods and procedures designed for trial." Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1564 (10th Cir. 1994).
Lodge Tower Condominium Ass‟n v. Lodge Properties, Inc., 880 F. Supp. 1370, 1374 (D. Colo. 1995), aff'd, 85 F.3d 476 (10th Cir. 1996).
To the extent that an agency determination is reviewable, the applicable standard of review is set forth in the APA. The APA authorizes "the reviewing court [to] decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." 5 U.S.C. § 706. The reviewing court, however, may only set aside an agency‟s action, findings, and conclusions if they are found to be:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
In Lodge Tower, the district court noted: "The "arbitrary or capricious‟ concept, needless to say, is not easy to encapsulate in a single list of rubrics because it embraces a myriad of possible faults and depends heavily on the circumstances of the case." Puerto Rico Sun Oil Co. v. EPA, 8 F.3d 73, 77 (1st Cir. 1993). The case law nonetheless describes the approach which a reviewing court must take. Consistent with the introductory language of section 706, the court must first look at the relevant statute to determine whether the administrative agency properly construed its authority and acted within the scope of that authority. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415--16, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Next, "the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. [Citations omitted.] Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id., 401 U.S. at 416, 91 S.Ct. at 823--24. In evaluating the agency's factual findings and inferences, the "court must find that the evidence before the agency provided a rational and ample basis for its decision." Northwest Motorcycle Ass'n v. United States Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). If the agency relies on a factual finding or assumption which the court regards as clearly erroneous, application of the "arbitrary or capricious" standard requires that the court set aside the agency action only if "there is a significant chance that but for the errors the agency might have reached a different result." Mount Evans Co. v. Madigan, 14 F.3d 1444, 1456 (10th Cir.1994) (quoting National Parks and Conservation Ass'n v. FAA, 998 F.2d 1523, 1533 [10th Cir. 1993]).
Lodge Tower, 880 F. Supp. at 1376-77.*fn1
The Court of Appeals for the Third Circuit explained the above standard as follows:
Agency action is entitled to a presumption of regularity. The burden of proof rests with the party alleging irregularity. See Schweiker v. McClure, 456 U.S. 188, 196, 102 S.Ct. 1665, 1670, 72 L.Ed.2d 1 (1982). This presumption does not, however, prevent a reviewing court from taking a probing, "hard look" at the agency's action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).
Agency action may not be set aside on grounds that it is arbitrary and capricious if the action is rational, based on relevant factors, and within the agency's statutory authority. Motor Veh. Mfgrs. Ass'n. v. State Farm Mut., 463 U.S. 29, [42-43], 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983).
In considering whether agency action is rational, a reviewing court must determine whether the agency considered the relevant data and articulated an explanation establishing a "rational connection between the facts found and the choice made." Burlington Truck Lines v. ...