Are courts to apply de novo review of agency actions when the inadequacy of the factfinding procedures is due to a procedural due-process violation

QUESTIONS PRESENTED This Court established the standards of review for agency actions in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). Courts are limited to determining whether the agency action was arbitrary and capricious at the time of the decision unless “the [agency] action is adjudicatory in nature and the agency factfinding procedures are inadequate.” Jd. at 415. This Court has never clarified what inadequacies of the factfinding procedure will merit de novo review of agency action and the Circuits are split on this issue. Residents and citizens of the United States who transact with foreign financial agencies to file yearly reports called FBARs. When a resident or citizen fails to file an FBAR, that individual may be assessed willful or non-willful penalties for such failure. The Federal, Second and Eleventh Circuit in response to this defense have looked to whether the individual had a “reason to know” of the specific reporting requirement imposed by the law. This is a lesser standard than willfulness which requires reckless Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57 (2007). The questions presented are: 1. Are courts to apply de novo review of agency actions when the inadequacy of the factfinding procedures is due to a procedural ii due process violation as in Porter v. Califano, 592 F.2d 770 (5th Cir. 1979) or are there other occasions to consider as the Ninth Circuit or D.C. Circuit have found? 2. How are Courts to apply the standard of willfulness in the context of a_ specific reporting requirements? 3. Is 31C.F.R. § 1010.820(g)(2) superseded by 31 U.S.C. § 5321(a)(5)?