818 F.2d 953
260 U.S.App.D.C. 304
Eric J. BARNETT, individually and as parent and next friend
of Rachael Lynn Barnett, a minor, Appellant,
Caspar WEINBERGER, Secretary of Defense of the United States
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 27, 1982.
Decided May 15, 1987.
As Amended May 15, 1987.
Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-01211).
Michael F. X. Dolan, Bethesda, Md., for appellant.
Michael J. Ryan, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty. at the time the brief was filed, Royce C. Lamberth, R. Craig Lawrence, Asst. U.S. Attys., Cheryl M. Long, Asst. U.S. Atty. at the time the brief was filed, and Paul S. Koffsky, Atty., Dept. of Defense, were on the brief, for appellee. Kenneth M. Raisler, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, also entered an appearance for appellee.
Before ROBINSON, Circuit Judge, and McGOWAN and MacKINNON, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBINSON.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
This appeal stems from a judgment of the District Court dismissing appellant's action for an injunction permanently barring the Department of Defense from terminating medical benefits for his daughter. We find that the decision to discontinue these benefits rests wholly upon departmental regulations which as interpreted are fatally at odds with the statutory directive they purport to implement. Accordingly, we reverse the judgment and instruct the District Court to issue the injunction sought.
Rachael Lynn Barnett, appellant's thirteen-year-old daughter, is the victim of a disabling and incurable neurological condition, apparently the result of fevers occurring shortly after her birth. Rachael apparently has no sight, speech, hearing, or voluntary motor function whatsoever. She is generally comatose, severely retarded, incontinent, and unable to dispose of bodily secretions that may collect in her throat. Her functional age is under one month. She suffers recurrent seizures and movements of her eyes and extremities are spastic. As a result, Rachael must be fed, dressed, exercised, and cleansed by an attendant. She also requires constant monitoring to ensure that accumulated secretions do not block her air passages.
Unable to provide this level of care themselves, Rachael's parents in 1978 put her in a hospital, and she has remained hospitalized since. With the consent of the parents, Rachael has been placed on "no-code" status, meaning that "extraordinary" measures will not be instituted to combat conditions that may imminently threaten her life. Instead, Rachael has been furnished hospitalization with "supportive care," consisting of satisfaction of her basic personal needs, monthly medical examinations, and the continuous supervision and attention essential to maintain breathing. Because Rachael's disorder is incurable, no rehabilitative or other treatment to improve her condition has been prescribed.
From the start, the expense of Rachael's hospitalization has been absorbed as a basic benefit under the Civilian Health and Medical Program for the Uniformed Services (CHAMPUS), a system of federally-subsidized health care available to dependents of active-duty military personnel and others. Rachael qualifies as an eligible dependent because her father is a commissioned officer in the United States Navy and a participant in the program.
In May, 1979, the Office of CHAMPUS notified appellant that, in its opinion, Rachael's hospitalization supplied only "custodial care," attention of a kind statutorily excluded from the program. Appellant was informed that consequently CHAMPUS basic benefits would cease, but that Rachael might qualify for assistance available to significantly handicapped dependents of active-duty military personnel. Any aid Rachael might receive as a handicapped child, however, was and is limited to $12,000 per year, a sum plainly inadequate to meet Rachael's annual hospital bills, then approximately $53,000. Cessation of Rachael's CHAMPUS benefits thus would compel her release from hospitalization into some other institutional setting or perhaps even parental care.
Hoping to save those benefits, appellant filed suit in the United States District Court for the District of Maryland to enjoin the scheduled termination. In exchange for appellant's voluntary dismissal of that action, it was agreed that the decision to discontinue benefits would be administratively reconsidered. The Office of CHAMPUS staff then reexamined Rachael's case, but again concluded that Rachael did not qualify for basic coverage because her hospitalization provided no more than "custodial care." This determination was upheld in turn by a hearing officer, on review by the Director of the Office of CHAMPUS, and finally by the Principal Deputy Assistant Secretary of Defense for Health Affairs. Central to the decision at each level were departmental regulations undertaking definition of the statutory exclusion of "custodial care," and the decision-maker's understanding of the effect of the regulations in Rachael's situation.
Having exhausted his administrative options, appellant instituted the present suit to enjoin any stoppage of CHAMPUS benefits as arbitrary. The District Court found the projected discontinuation of such benefits supported by substantial evidence, and denied an injunction and dismissed the action. Thereupon, appellant turned to this court.
II. MEDICAL CARE FOR MILITARY DEPENDENTS
Traditionally, dependents of members of the Armed Forces have been provided health care in military facilities whenever the space and staff essential thereto could be utilized without jeopardizing medical service to personnel on active duty. The dependent-care practices long pursued in military circles, however, left much to be desired. Positive statutory authority to accommodate dependent medical service was fragmentary; this bred disparities in the types of care afforded and the categories of dependents able to seek them. Moreover, an estimated 40 percent of dependents could not obtain medical care in military facilities, primarily because of overcrowding, physician shortages, or residence outside the areas served by those facilities. 5] Inadequacies of these sorts in the dependent medical care system in vogue generated what ultimately came to be recognized as "one of the most serious morale problems facing our Armed Forces."
A. The Statutory Scheme
In 1956, Congress passed the Dependents' Medical Care Act as the means of rectifying these shortcomings. The broad purpose of the Act was "to create and maintain high morale throughout the uniformed services by providing an improved and uniform program of medical care for members of the uniformed services and their dependents." Uniformity was attained by explication of the types of medical care that can and cannot be provided and precise definition of the categories of dependents eligible for them. The principal improvement was authority to contract for provision of medical care by civilian hospitals and physicians to dependents of active-duty military personnel, thus increasing the availability of medical services beyond the capacity of military hospitals and staffs. Ten years later, by the Military Medical Benefits Amendments of 1966, medical care available to dependents of active-duty personnel was expanded even further, and still other changes have been wrought by subsequent legislation.
The truly outstanding feature of the Dependents' Medical Care Act, however, is that it converted the provision of military-dependent medical care from a mere act of grace to a full-fledged matter of right. The Act specifies, in the respects pertinent to this case, that "[a] dependent of a member of a uniformed service who is on active duty for a period of more than 30 days ... is entitled, upon request, to the medical and dental care prescribed by [the Act] in facilities of the uniformed services, subject to the availability of space and facilities and the capabilities of the medical and dental staff." And, "[t]o assure that medical care is available for spouses and children of members of the uniformed services who are on active duty for a period of more than 30 days," the Act commands the Secretary of Defense, "after consulting with the other administering Secretaries, [to] contract ... for medical care for those persons under such insurance, medical service, or health plans as he considers appropriate." With but a single exception, an eligible dependent may elect to receive authorized medical care either in a military facility or a facility provided under a plan contracted for. As the House Report declared, "for the first time in the history of the uniformed services, dependents will be provided with a statutory entitlement to medical care on a uniform basis throughout all the uniformed services."
Hospitalization is a form of care that the Act permits, and an unmarried legitimate child under age 21 is an eligible dependent. Appellant, Rachael's father, has elected civilian hospitals and physicians over military facilities and personnel, and has accepted a civilian hospital in the area to which he is now assigned. It follows that but for the regulations the Department of Defense invoked and the interpretation the Department gave them, the injunction appellant sought should have been granted.
While access to statutorily-authorized military-dependent medical care is a legal entitlement, Congress has imposed limitations on the types of care that CHAMPUS can supply, among which is a ban on "[d]omiciliary or custodial care." The regulations utilized to deny Rachael continued hospitalization purport to define these terms, and the administrative construction given "custodial care" foreclosed further CHAMPUS benefits. We turn, then, to determine whether these regulations and their application to Rachael comport with the mandates of the Act.
B. The Challenged Regulations
Rachael's unfortunate and singular plight obviously demands precise identification of the boundaries of the statutory exclusion of "custodial care." Not only must her elemental personal needs be satisfied, but her life depends entirely upon medical personnel who, through constant supervision and attention, insure that she does not perish from her bodily fluids. Moreover, the level of medical support necessary to safeguard Rachael against that hazard can be obtained only in a hospital. As Rachael's personal physician testified, entirely without contradiction, care in the home would not be adequate for her:
[Rachael] needs hospitalization, because she cannot handle her own secretions. She's a vegetable. She cannot do anything independently. And to put her in a residential setting, where somebody might check on her twice a day, I'm afraid the third time they checked, she would be dead.
The touchstone of the Secretary's claim that Rachael is not entitled to basic CHAMPUS benefits is a set of regulations attempting to define the meaning of the term "custodial care" as used in the statutory exclusion. These provisions establish a four-part definition. "Custodial care" is said to be
[c]are rendered to a patient--
(i) who is disabled mentally or physically and such disability is expected to continue and be prolonged and
(ii) who required a protected, monitored or controlled environment whether in an institution or in the home, and
(iii) who requires assistance to support the essentials of daily living, and
(iv) who is not under active or specific medical, surgical, or psychiatric treatment that will reduce the disability to the extent necessary to enable the patient to function outside the protected, monitored, or controlled environment.
The regulations provide that "[i]t is not the condition itself that is controlling, but whether the care being rendered falls within the definition of custodial care...." And "[t]he determination of custodial care in no way implies that the care being rendered is not required by the patient; it only means that it is the kind of care that is not covered under the Basic Program." The regulations declare additionally that "[a] custodial care determination is not precluded by the fact that a patient is under the care of a supervising or attending physician and that services are being ordered and prescribed to support and generally maintain the patient's condition, or provide for the patient's comfort, or insure the manageability of the patient. Further, a custodial care determination is not precluded because the ordered and prescribed services and supplies are being provided by an R.N., L.P.N., or L.V.N." By reason of this regulatory structure, the administrative decisionmakers were impelled to deny benefits to Rachael for hospital costs that otherwise would have been paid.
The question we face is whether, particularly in light of the potentially fatal consequences of a withdrawal of inpatient medical care, the "custodial care" regulations, either as written or applied, are invalid for their interception of a patient in Rachael's precarious situation. The Secretary relies wholly upon the regulations as a permissible interpretation of the statutory exclusion, and upon the administrative decision as an equally proper application of the regulations. On his part, appellant disputes neither that the first three elements of the administrative definition of "custodial care" permissibly stake out the exclusion's general sphere, nor that what otherwise would be "custodial care" can qualify for benefits if rehabilitative in nature. He contends, simply, that inclusion within "custodial care" of care necessary to sustain life and available only in a hospital expands the concept of "custodial care" beyond the bounds of the statutory exclusion. 7] The issue thus is not the extent to which the first three factors enumerated in the regulations might properly comprise parts of an acceptable definition of "custodial care," but whether the regulations characterizing medically-essential hospital service as excluded "custodial care" comport with the statutory provision on that subject.
III. THE DEFERENCE DUE THE ADMINISTRATIVE CONSTRUCTION
Construction of a statute by the agency charged with its administration is normally entitled to deference, and should not be gainsaid absent cogent, weighty, or compelling reasons. This is especially so when, as here, the agency proffering the construction assisted in drafting of the legislation. Owing to the presence here of factors that traditionally have diminished the influence of administrative interpretations, however, we believe that neither the regulations in dispute nor the agency decision in Rachael's instance commands appreciable respect.
It is well established that the prestige of a statutory construction by an agency depends crucially upon whether it was promulgated contemporaneously with enactment of the statute and has been adhered to consistently over time. Neither of these conditions has been satisfied in the case before us. The Secretary adopted the questioned regulation in 1977, eleven years after passage of the 1966 enabling legislation in which Congress first spoke of "custodial care." Beyond that, the 1977 regulations represent a quite different and broader interpretation than previously adopted by the Department. Under the earlier construction, Rachael and at least 160 other patients received basic benefits under CHAMPUS for medical care which the regulations now classify as "custodial." That later a need for a grandfathering clause in the regulations was perceived shows that the regulations altered the original administrative definition of "custodial care" in a significant way. Additionally, various guidelines promulgated immediately after enactment of the 1966 amendments suggested that neither medically-necessary hospitalization nor nursing, medical, or paramedical services required on a continuing basis constituted excluded "custodial care." In short, the 1977 regulations were neither contemporaneous with enactment of the statute nor consistent with earlier interpretations of the same statutory terminology, and thus do not merit a substantial degree of respect as an aid to construction of the statutory language.
In addition to these difficulties, we are mindful that an administrative interpretation is not of itself dispositive of an issue of statutory construction. Rather, its force depends upon other factors, including the thoroughness and validity of its reasoning, and its compatibility with the general purposes that motivated enactment of the legislation interpreted. The CHAMPUS regulations also fail to measure up under these standards. The regulations were issued without any public notice and without benefit of any comment thereon. No explanation or discussion of the regulations was offered at the time, nor was any attempt made to support the regulations by an analysis of the legislative history underlying the statute. Indeed, the later amendment of the regulations by insertion of a grandfathering provision suggests that they were originally promulgated without adequate consideration of their impact upon existing beneficiaries or evaluation of their consistency with statutory authority and previous administrative practice. We note, too, that the regulations' broad-gauged reading of the statutory exclusion is antithetical to the general statutory purpose, for the prime objective of the Dependents' Medical Care Act was enhancement, not reduction, of the benefits to be accorded to military personnel and their dependents. Against this backdrop of congressional intent, it seems highly incongruous that the scope of a statutory exclusion from benefits should be expanded eleven years after adoption of the ameliorating legislation.
In sum, the regulations in question were issued after what appears to have been cursory consideration, were accompanied by neither explanation nor justification, and were given a breadth that does not comport with the purposes animating the statute purportedly interpreted. These elements buttress our conclusion that the regulations are not entitled to significant weight in delineating the scope of the statute's "custodial care" provision.
We emphasize, as the Supreme Court and this court often have, that "statutory construction ultimately is a judicial function." While an agency's interpretation of any statute it administers must be fully and respectfully considered, its reading ultimately prevails, if at all, only by virtue of the persuasive power it exerts. Deference to interpretative agency promulgations should not lapse into mere " 'judicial inertia,' " and we would neglect a fundamental responsibility were we to " 'stand aside and rubber-stamp [our] affirmance of administrative decisions that [we] deem inconsistent with a statutory mandate or that frustrates the congressional policy underlying a statute.' " Since, in the case at bar, several important factors seriously undermine the Secretary's interpretation of the statutory term "custodial care," we can discharge our obligation to ascertain the soundness of the disputed agency decision only by independent investigation and analysis of the statutory framework in light of the relevant legislative history.
IV. THE LEGISLATIVE HISTORY
When, in 1956, the Dependents' Medical Care Act established the first comprehensive statutory program of medical benefits for military dependents, that legislation adopted the forerunner of the statutory exclusion involved here, providing that "[h]ospitalization ... is not authorized dependents for domiciliary care." Congress made no reference to "custodial care," however, until the Military Medical Benefits Amendments of 1966, when it redrafted the exclusion to encompass "[d]omiciliary or custodial care."
As in the instance of "custodial care," the statutory text does not indicate the nature of "domiciliary care." The CHAMPUS regulations, however, reflect the general understanding as to what "domiciliary care" is and is not. "Domiciliary care" is defined as
inpatient institutional care provided the beneficiary not because it is medically necessary, but because the care in the home setting is not available, is unsuitable, or members of the patient's family are unwilling to provide the care.
Examples of "domiciliary care" situations are given. As both the definition and the illustrations make clear, "domiciliary care" does not include hospitalization that is medically essential.
This concept of "domiciliary care" is highly significant, for it sheds important light upon the meaning of "custodial care" when the latter was inserted into the exclusionary section in 1966. Congress enacted the 1966 amendments to enhance morale among military units, to promote the attractiveness of military careers, to discharge a moral obligation to the uniformed services, and to provide military personnel with medical benefits comparable to those extended to federal civilian employees. Consistently with these objectives, the legislative history is replete with descriptions and endorsements of proposed legislation as improvements and expansions of existing benefits; indeed, several Members of Congress stated explicitly that the legislation was not to be taken to downgrade or erode in any way the benefits then available to those in military service. In view of this irrefutable legislative purpose, as well as the absence of any congressional discussion of the newly-drafted reference to "custodial care" or any acknowledgment that the 1966 amendments enlarged the existing exclusion, it would be highly anomalous to suppose that by this language Congress designed an exclusion of necessary medical service from basic CHAMPUS benefits.
The relevant committee reports provide even stronger confirmation that Congress did not intend the term "custodial care" to embody such an exclusion. The 1966 House Report stated explicitly that "domiciliary or custodial" care was already exlcuded under existing law--which, as we have noted, featured an exclusion referring only to "domiciliary" care, which does not embrace care that is medically necessary. The 1966 Senate Report indicated likewise, characterizing the newly-drafted exclusion as no more than "a continuation of existing law." It seems apparent that neither House contemplated a reading of the exclusion of "domiciliary or custodial care" as a ban on hospitalization that is medically required.
Other legislative history strongly underscores this conclusion. Especially significant are the unchallenged statements of legislators that dependents of uniformed personnel would become statutorily entitled to coverage of the costs of all necessary hospitalization and other medical care. In support of the bill that ultimately became the Dependents' Medical Care Act of 1956, for example, Representative Van Zandt declared:
This hospital coverage for dependents includes not only maternity care but necessary medical and surgical treatment as well.
The point I wish to emphasize is that for the first time since the days before World War II we can say to any man who is serving our country in the Armed Forces, "[y]ou need no longer worry that your wives and children will not receive adequate medical care. Wherever your duty takes you, your family can now be given hospital care when they need it."
Similarly, during debate on the 1966 amendments, Representative Pirnie explained that they would "improve the level of care for military dependents who need hospitalization." Representative Chamberlain echoed with this comment:
All the costs that will be borne by military families under the various provisions of this legislation are minimal. The important consideration is that care will be available whenever and wherever required.
So far as we can tell, it was common ground both in 1956 and in 1966 that Congress was acting to ensure that servicemen and their dependents would receive benefits for medically-essential hospitalization.
Similarly supportive of this is the particular terminology that Members of Congress employed in characterizing the nature of the exclusion. On numerous occasions, in committee reports as well as in legislative debate, the scope of the exclusion was described as limited to "convalescent" and "nursing home" care, appellations strongly implying that Congress did not intend to embrace within the exclusion medical care available or practical only in a hospital. It is noteworthy, too, that the Senate Report on the 1966 amendments justified the exclusion of convalescent and nursing-home care on the ground that it "is technically not hospitalization"--even more plainly an indication that Congress did not signify a denial of CHAMPUS basic benefits to patients actually in need of hospitalization.
To summarize, the legislative history of the exclusion for "domiciliary and custodial care" fortifies the conclusion that Congress did not eliminate the expense of medically-essential hospitalization from protection as a basic CHAMPUS benefit. It thus confirms appellant's position that Rachael Barnett's hospitalization, which plainly enough is necessary to keep her alive, is beyond the pale of the exclusion.
V. JUDICIAL INTERPRETATIONS
As the final leg of our quest for the meaning of the statutory exclusion for "domiciliary or custodial care," we examine the construction other courts have given comparable statutory language in closely analogous contexts. We derive particularly valuable guidance from cases involving the Social Security Act, which removes from Medicare coverage non-hospice care deemed to be "custodial" in nature. As in the legislation before us today, Congress supplied no definition of "custodial care" in the exclusion from Medicare protection. Nevertheless, the courts almost uniformly have interpreted as descriptive of this type of care that which "can be provided by a lay person without special skills and not requiring or entailing the continued attention of trained or skilled personnel."
The cases have recognized and hewed to a sharp distinction between routine maintenance and the provision of essential medical service. In Ridgely v. Secretary of HEW, for example, the plaintiff, who had suffered a severely fractured hip, was released from a hospital to an extended care facility. Constant supervision of the patient was required, however, to ensure that she did not dislodge the internal supports binding her fracture, and to treat an embolism in her leg. Stressing the necessity of medical attention, the court refused to characterize her stay in the facility as "custodial care," but instead allowed her to collect Medicare benefits during convalescence. In so doing, the court refused to accept the Secretary's position that the care received by the patient "was primarily supportive in nature, and, therefore, specifically excluded from coverage by the 'custodial care' exclusion." Other cases have reached similar conclusions through similar reasoning.
We are unable meaningfully to distinguish Rachael Barnett's situation. Her needs include skilled nursing care--that which "requires the direct supervision of licensed nursing personnel under the general direction of a physician." This is diametrically opposed to the provision of mere custodial care, which "could be administered by a layman, without any possible harm to the health of the one in custody."
The Department of Defense believed, however, that some comparative measurement of the different types of care rendered to a patient should dictate a characterization of the treatment overall. In its Final Decision, the Department identified the principal issue in dispute as whether "the inpatient care the beneficiary/patient is receiving is primarily custodial," and this terminology was the pervasive theme of the decision. After reviewing the extensive disabilities with which Rachael is afflicted, the Department felt that her treatment is "primarily custodial in nature," and regarded this conclusion as dispositive of Rachael's claim for basic CHAMPUS benefits.
We find this position untenable. Even a moment's reflection brings to mind a host of medical maladies for which professional medical treatment is undeniably necessary but which also involve significant supplemental non-medical care. To suggest that a victim of a catastrophic illness or a severe accident is receiving "custodial care" simply because the "primary" portion of her attendants' time is spent providing for her elemental needs is patently misguided. The critical factor is not the division or percentage of the labor daily received by the patient but the essential nature of the patient's call for supervision and ministration, even if considerably less frequent, from medical professionals.
The courts have held that the coupling of skilled medical therapy with more mundane treatment, such as feeding and cleansing, does not preclude Medicare coverage for any portion of the expense incurred. This combination was explicitly addressed in Kuebler v. Secretary of HHS, in which the putative beneficiary sought Medicare reimbursement for her stay in a skilled nursing facility. Noting that the claimant's "condition shows progressive deterioration to the point where she [is] a danger to her own well-being and need[s] care," the court refused to allow HHS to bifurcate her treatment into medically-essential and nonessential tasks. "Although many specific services rendered to [the patient] were routine and seemingly unskilled, in the aggregate they were treatment of her medical condition."
Judicial refusal to characterize treatment as custodial merely because required care encompasses certain routine maintenance functions is perhaps best expressed in Sowell v. Richardson. It was there asserted that only care that "must be given under the supervision of a registered professional nurse" was covered by Medicare, and that any aid failing to meet this standard was custodial and therefore not compensable. The court rejected this definition and its application to a terminally-ill 72year-old cancer victim who received treatment in a nursing home. Instead, the court espoused a "sensible nontechnical approach to interpretation of [custodial care] in order to give effect to the purpose of the Act and to afford equitable treatment to those seeking its benefits." "It was never intended by Congress," the court said, "that the condition of the insured, treatment that might at any time be necessary, and the pain and discomfort attending inadequate or unprofessional care or lack of care not be considered together with treatment actually provided in determining whether extended care services are justified." Even where immediate, constant care is not required, the unstable condition of the patient may thus necessitate skilled nursing supervision.
What otherwise would be "custodial care" when standing alone may, under the Social Security Act, be assimilated to medical care "in light of the statute's benevolent congressional purpose" and considering "the needs and underlying condition of the claimant insured as a whole." We see no reason for supposing that Congress had less concern for the welfare of beneficiaries under CHAMPUS. Nor are we able to distinguish Rachel's case from those in the mainstream of evolving judicial doctrine. To continue living she must have skilled nursing care--that which "requires the general supervision of licensed nursing personnel under the general direction of a physician." That treatment of this type involves attendant routine maintenance does not change the nature of her life-sustaining need. This medically-necessary service is precisely the kind the courts have refused to label "custodial" under the Social Security Act. No more should it be permitted to provide the predicate for termination of basic benefits under CHAMPUS.
Our inquiry into the history of the CHAMPUS legislation has revealed that Congress did not intend the exclusion for "domiciliary or custodial care" to include medical care that is truly essential. In light of this plain congressional purpose, we decline to defer to the Secretary's contrary construction of the statutory exclusion. We hold that the challenged CHAMPUS regulation, as written or as applied, is invalid insofar as it purports to treat medically-necessary patient care obtainable only in a hospital as excluded "custodial care."
At times during administrative review of Rachel's claim, the Department of Defense seemed to accept at face value the contention that her hospitalization is medically essential. In its final decision, however, aside from its abiding allegiance to "primarily custodial," the Department appeared to question feebly whether any sort of hospitalization was needed. The insuperable difficulty in this position is that the Secretary does not identify, nor have we independently found, evidence buttressing the several circumstances mentioned by the final decisionmaker in this regard. In assessing the factual soundness of the agency decision under review, we must ascertain whether it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." And in making that determination, we must remain mindful that "findings" of adjudicative facts that are not supported by substantial evidence are arbitrary. The factual speculations in the agency's final decision run afoul of that principle, and we cannot accept them.
The judgment appealed from is reversed, and the case is remanded to the District Court with direction to issue the injunction sought by appellant.