Full opinion text
ECONOMUS, D.J., delivered the opinion of the court, in which GILMAN, J., joined. GIBBONS, J., concurred in the judgment only. OPINION ECONOMUS, District Judge. I. OVERVIEW This appeal draws the court into the longstanding conflict between the government’s policy of employing federal inmates in the manufacture of goods and the challenges faced by the private industries compelled to compete with inmate-produced wares. Nearly seven decades ago, the United States Supreme Court addressed the “evil” posed by “the sale of convict-made goods in competition with the products of free labor,” and opined, “[F]ree labor, properly compensated, cannot compete successfully with the enforced and unpaid or underpaid convict labor of the prison.” Whitfield v. Ohio, 297 U.S. 431, 439, 56 S.Ct. 532, 80 L.Ed. 778 (1936). Since Whitfield, the debate over the use of inmate labor largely has been reserved for the policymakers operating in the other branches of government. The role of the courts has been limited to examining whether the terms and conditions of inmate employment comply with constitutional and statutory standards. See generally Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (examining liability of prison officials pursuant to 42 U.S.C. § 1983 where said officials disciplined an inmate for refusal to work on a “chain-gang”); Richardson v. McKnight, 521 U.S. 399, 405-06, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (acknowledging that privately-operated prisons may be held liable for injuries suffered by inmates employed on “chain gangs” and “work-farms”). This appeal requires, however, that the court re-enter the conflict and examine whether the agency charged by Congress to manage inmate labor — Federal Prison Industries, Inc. — has acted within its administrative authority. Specifically, the appellants-plaintiffs, the Coalition for Government Procurement (“CGP”) — a non-profit trade association representing manufacturers of office furniture — and several CGP members, appeal the district court’s award of summary judgment in favor of Federal Prison Industries, Inc. (“FPI” or “UNICOR”), and its Board of Directors (the “Board”), in this action brought pursuant to UNI-COR’s organic statute, 18 U.S.C. §§ 4121-4129 (2003), the judicial review provisions of the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-706, and the Just Compensation Clause of the Fifth Amendment to the United States Constitution, U.S. Const, amend. V. The Coalition asserts that UNICOR violated the foregoing provisions from 1991-1995 when it significantly expanded its production .of office furniture without initiating the public notice and comment procedures required by section 4122. The Coalition further asserts that the Board violated the organic statute and the APA when it authorized UNICOR’s 1995-1996 requests to significantly expand production of office furniture. Finally, the Coalition contends that UNICOR’s direct dealings with private manufacturers and purchasers of office furniture violate the organic statute and the APA. As the issues raised in this appeal are matters of first impression among the courts of appeals, we begin our analysis with an extensive examination of the statutory and regulatory framework governing UNICOR’s operations. We thereafter address the specific assignments of error. II. BACKGROUND A. The Historical Underpinnings of UNICOR’s Organic Statute In the words of one leading scholar, “The history of the prison is in large measure a history of prison labor.” While the issues underlying the instant appeal are steeped in this lengthy history, we narrow our focus to the historical events giving rise to UNICOR. 1. Early Congressional Responses to Inmate-Labor Programs The emergence of the penitentiary system at the end of the eighteenth century resulted in the states taking custody of large and restless inmate populations whose ward placed considerable pressures on state treasuries. The states responded with efforts designed to reduce “idle hands” among the inmates while promoting the self-sufficiency of the penitentiary. Central to these efforts were inmate-labor programs. As the use of inmate-labor increased throughout the nineteenth and early-twentieth centuries, so too did the cries from the private enterprises, trade associations and labor unions that viewed such programs as threats to free markets and employment. State legislatures responded by enacting measures limiting the scope of inmate-manufactured products. See, e.g., Whitfield, 297 U.S. at 435-440, 56 S.Ct. 532 (examining an Ohio statute barring the sale of inmate goods manufactured outside of the state of Ohio). Similarly, Congress enacted a series of measures designed to curtail the interstate sale of inmate-produced goods. Notwithstanding the apparent hostility exhibited by the federal government to the states’ use of inmate labor, Congress promoted inmate-labor programs within the federal penitentiary system. For instance, Congress authorized the Attorney General in 1918 to establish, equip, maintain, and operate at the United States Penitentiary in Atlanta, Georgia, a factory or factories for the manufacture of cotton fabrics to supply the requirements of the War and Navy Departments, the Shipping Corporation, cotton duck suitable for tents and other army purposes and canvas for mail sacks and for the manufacture of mail sacks and other similar mail-carrying equipment for the use of the United States Government. Act of July 10, 1918, ch. Í44, § 1, 40 Stat. 896, 896. Similarly, Congress authorized a factory to be constructed at the Leavenworth, Kansas federal penitentiary for the “manufacture of shoes, brooms, and brushes.” Act of April 3, 1924, ch. 81, 43 Stat. 33, 44-45. Congress thereafter expanded the use of inmate labor to all federal penitentiaries. See Act of May 27, 1930, ch. 340 § 1, 46 Stat. 391, 391 (hereinafter the “1930 Act”) (“[T]he Attorney General shall provide employment for all physically fit inmates in the United States penal and correctional institutions.”). Congress expressly authorized the use of inmate labor in two areas. First, the Attorney General was “to make available the services of United States prisoners” for use by federal agencies and departments in the “construction or repairing roads ...; clearing, maintaining, and reforesting public lands; building levees; and for constructing or repairing any public ways or works.” Act of May 27, 1930, ch. 340 § 2, 46 Stat. at 391. Secondly, the Attorney General was “to establish such industries as w[ould] produce articles and commodities for consumption in the United States penal and correctional institutions or for sale to the departments and independent establishments of the Federal Government.” Act of May 27, 1930, ch. 340 § 3, 46 Stat. at 391. The 1930 Act also created a limited market for inmate-produced wares providing that, “The several Federal departments and independent establishments and all other Government institutions of the United States' shall purchase at not to exceed current market prices, such products of the industries herein authorized to be carried on their requirements and as may be available.” Act of May 27, 1930, eh. 340 § 7, 46 Stat. at 392. Congress did not, however, authorize the unfettered use of inmate labor. It directed the Attorney General to establish only those industries “as [would] give the inmates a maximum opportunity to acquire a knowledge and skill in trades and occupations which w[ould] provide them with a means of earning a livelihood upon release.” Act of May 27, 1930, ch. 340 § 7, 46 Stat. at 392. Similarly, while the 1930 ■Act “provide[d] employment for all physically fit inmates,” it did so only in such “diversified forms as [would] reduce to a minimum competition with private industry or free labor.” Act of May 27, 1930, ch. 340 § 1, 46 Stat. at 391. Moreover, Congress explicitly directed that inmate-manufactured products were “not for sale to the public in competition with private enterprise.” Act of May 27, 1930, ch. 340 § 3, 46 Stat. at 391. 2. The Creation of UNICOR Four years later, Congress charged the President “to create a body corporate of the District of Columbia to be known as ‘Federal Prison Industries.’ ” Act of June 23, 1934, ch. 736 § 1, 48 Stat. 1211, 1211 (hereinafter the “1934 legislation”). The 1934 legislation otherwise mirrored the 1930 Act with one significant addition: the creation of a board of directors (the “board”). Congress directed the President to appoint a five-member board of directors, with industry, labor, agriculture, retailers/consumers, and the Attorney General each represented by one member. See Act of June 23, 1934, ch. 736 § 2, 48 Stat. at 1211. While Congress vested UNICOR with broad discretion to manage inmate-operations, it empowered the board with the authority to balance such operations with the need to protect private industries. See Act of June 23, 1934, ch. 736 § 3, 48 Stat. at 1211 (“It shall be the duty of the board of directors to diversify so far as practicable prison industrial operations and so operate the prison shops that no single private industry shall be forced to bear an undue burden of competition from the’ products of the prison workshops”). On December 11, 1934, President Franklin D. Roosevelt issued Executive Order 6917 (the “Executive Order”), see (j.A. 983), creating UNICOR and appointing the board. The Executive Order expressly provided: [UNICOR] shall have power to determine in what manner and to what extent industrial operations shall be carried on in the several penal and correctional institutions of the United States and shall, so far as practicable, so diversify prison industrial operations that no single private industry shall be forced to bear an undue burden of competition with the products of prison workshops. It shall also have power to do all things it is authorized to do by said Act of June 23, 1934, and all things incident to or necessary or proper in the exercise of its functions. Exec. Order No. 6917 ¶ 3. It further provided, “The heads of the several executive departments, independent establishments and Government owned and Government controlled corporations shall cooperate with [UNICOR] in carrying out its duties and shall purchase, at not to exceed current market prices, the products or services of [UNICOR], to the extent required by law.” Exec. Order No. 6917 ¶ 9. B. UNICOR’s Organic Statute 1. 18 U.S.C. §§ 4121-4129 Congress incorporated the provisions of the 1930 Act, the 1934 legislation and the Executive Order as part of the enactment of Title 18 of the United States Code. See Act of June 25, 1948, Pub. L. No. 80-722, 62 Stat. 683, 851. With limited exception, the current version of UNICOR’s organic statute maintains its historical underpinnings. Title 18 of the United States Code, section 4121, establishes UNICOR as a “government corporation of the District of Columbia ... administered by a Board of six directors, appointed by the President to serve at the will of the President without compensation.” 18 U.S.C. § 4121 (2003). Section 4122(a) vests UNICOR with broad discretion to manage inmate operations, providing, in pertinent part: [UNICOR] shall determine in what manner and to what extent industrial operations shall be carried on in Federal penal and correctional institutions for the production of commodities for consumption in such institutions or for sale to the departments or agencies of the United States, but not for sale to the public in competition with private enterprise. 18 U.S.C. § 4122(a). Section 4122(b)(1) delineates the duties of the board. Similar to the 1934 legislation, this subsection provides: Its board of directors shall provide employment for the greatest number of those inmates in the United States penal and correctional institutions who are eligible to work as is reasonably possible, diversify, so far as practicable, prison industrial operations and so operate the prison shops that no single private industry shall be forced to bear an undue burden of competition from the products of the prison workshops, and to reduce to a minimum competition with private industry or free labor. 18 U.S.C. § 4122(b)(1). Section 4123 of the organic statute mirrors the 1930 Act in that only those “forms of employment shall be provided as will give inmates ... a maximum opportunity to acquire a knowledge and skill in trades and occupations which will provide them with a means of earning a livelihood upon release.” 18 U.S.C. § 4123. The section further limits UNICOR’s operations so as to “not curtail the production of any existing arsenal naval yard or other Government workshop.” 18 U.S.C. § 4123. Section 4124(a) enshrines the mandatory obligation of federal agencies and departments to purchase, “at not to exceed current market prices, such products [manufactured by UNICOR] as meet their requirements and may be available.” 18 U.S.C. § 4124(a). Subsection (b) creates a dispute resolution process whereby any “[disputes as to the price quality, character, or suitability of [UNICOR] products shall be arbitrated by a board consisting of the Attorney General, the Administrator of General Services, and the President, or their representatives.” 18 U.S.C. § 4124(b). The decisions of the dispute resolution board are “final and binding on all parties.” Id. The current version of Section 4125, as in the 1930 Act, empowers the Attorney General to make available to the heads of the several departments, the services of United States prisoners under terms, conditions, and rates mutually agreed upon, for construction or repairing roads, clearing, maintaining, and reforesting public lands;. building levees, and constructing or repairing any public ways or works financed wholly or in major part by funds appropriated by Congress. 18 U.S.C. § 4125(a). The remaining provisions of the organic statute address UNICOR’s financial and reporting requirements. Section 4126 requires UNICOR to place “monies” generated by its operations into the Treasury of the United States, see 18 U.S.C. § 4126(a), and establishes accounting procedures relating to UNICOR’s operations, see 18 U.S.C. § 4126(b)-®. Section 4127 requires the board to submit an annual report to Congress detailing UNICOR’s operations. 2. The 1988 Amendments and the Comprehensive Advanced Review Process (“CARP”) Guided by its organic statute, UNICOR operated for decades below the legislative radar. The 1980’s witnessed, however, a dramatic rise in the number of inmates confined to federal institutions. UNI-COR therefore expanded its operations in order to provide employment “for the greatest number of those inmates ... who [were] eligible to work as [] reasonably possible.” 18 U.S.C. § 4122(b)(1). Echoing the cries of a century earlier, this increased utilization of inmate labor drew calls from private industries seeking to curtail UNICOR’s operations. Congress responded in 1988 by passing a series of amendments to UNICOR’s organic statute. See Anti-Drug Abuse Act of 1988, 100 Pub. L. No. 690, §§ 7093-7096, 102 Stat. 4181, 4411-14. Pertinent to the instant appeal, the amendments to section 4122 mandated that UNICOR “conduct its operations so as to produce products on an economic basis, but avoid capturing more than a reasonable share of the market among Federal departments, agencies, and institutions for any specific product.” See Anti-Drug Abuse Act of 1988, 100 Pub. L. No. 690, § 7096, 102 Stat. at 4413 (codified at 18 U.S.C. § 4122(b)(2)). Additionally, the amended section 4122 directed UNICOR to “concentrate on providing to the Federal Government only those products which permit employment of the greatest number of those inmates who are eligible to work as is reasonably possible.” Id. Furthermore, Congress instructed UNICOR to “diversify its products so that its sales are distributed among its industries as broadly as possible.” See Anti-Drug Abuse Act of 1988, 100 Pub. L. No. 690, § 7096, 102 Stat. at 4413 (codified at 18 U.S.C. § 4122(b)(3)). The most sweeping provisions of the 1988 legislation were those limiting UNI-COR’s discretion to increase production levels. Congress required that “[a]ny decision by [UNICOR] to produce a new product or to significantly expand the production of an existing product be made by the board.” See Anti-Drug Abuse Act of 1988, 100 Pub. L. No. 690, § 7096, 102 Stat. at 4413 (codified at 18 U.S.C. § 4122(b)(4)). Congress further required UNICOR and the board to initiate a notice and comment procedure prior to entering a new product area or significantly expanding UNICOR’s existing operations. See Anti-Drug Abuse Act of 1988, 100 Pub. L. No. 690, § 7096, 102 Stat. at 4414 (codified at 18 U.S.C. § 4122(b)(4)-(5)). Congress’s newly minted notice and comment procedure — the comprehensive advanced review process (“CARP”) — required the board to receive and consider a written analysis prepared by UNICOR detailing any proposed “significant expansion’s” potential impact on the private sector (the “Comprehensive Impact Study” or “market study”). See Anti-Drug Abuse Act of 1988, 100 Pub. L. No. 690, § 7096, 102 Stat. at 4414 (codified at 18 U.S.C. § 4122(b)(4)(A)). The CARP further required UNICOR to publicize the proposal within the affected sector, provide the Comprehensive Impact Study to the public, and solicit comments from the affected sector. See Anti-Drug Abuse Act of 1988, 100 Pub. L. No. 690, § 7096, 102 Stat. at 4414 (codified at 18 U.S.C. § 4122(b)(4)(B)-(D)). Congress also afforded interested industry representatives with “a reasonable opportunity” to present comments directly to the board. See Anti-Drug Abuse Act of 1988, 100 Pub. L. No. 690, § 7096, 102 Stat. at 4414 (codified at 18 U.S.C. § 4122(b)(4)(D)). The last stage of the CARP directed UNICOR to publicize the board’s final decision “in a publication designed to most effectively provide notice to potentially affected private vendors” of the affected product. See Anti-Drug Abuse Act of 1988, 100 Pub. L. No. 690, § 7096, 102 Stat. at 4414 (codified at 18 U.S.C. § 4122(b)(5)). 3. The Guidelines Notwithstanding Congress’s detailed attention to the CARP, the 1988 amendments did not define the term “significantly expand.” Therefore, on December 4, 1989, UNICOR published an interim definition of the term in Commerce Business Daily (“CBD”). See (J.A., 179-81, 434-36, 667-669,1097 ¶ 4, 1484 ¶ 36). Representatives from private industry — including CGP — provided comments regarding the interim definition. See (J.A., 1008-1024, 1813-15). On January 2, 1991, UNICOR published its final definition of “significant expansion.” See (J.A., 182-84, 437-38, 670-71, 1097 ¶ 5, 1639 ¶ 36). The final definition established a two-tiered approach (the “Guidelines”) for identifying whether a planned increase in production required the initiation of the CARP. The first tier directed UNICOR to monitor “proposed production increases ... as part of [its] annual planning cycle,” under the two scenarios where a significant expansion could arise: 1. The specific product will be produced at a new factory and not offset by a corresponding reduction in production at another location; or 2. The specific product will be produced at an existing factory or factories, and will be accompanied by at least a 10% increase in capacity resulting from expanding any of the following three inputs of production: a) Plant size; b) Equipment capacity; c) Inmate employment. (J.A., 11-12, 182-84, 437-38, 670-71, 1097 ¶ 6,1484-85 ¶ 6.) Where either of the above scenarios occurred, the second tier of the Guidelines required UNICOR to examine the federal government market for the specific product and develop an estimate of FPI’s current and projected market share. See (J.A.,182-84, 437-38, 670-71,1098 ¶ 7,1485 ¶ 7). The Guidelines required UNICOR to pursue the CARP when its current market share position exceeded its “allowable market share” in accordance with the following sliding scale: UNICOR’s Current Mrkt. Share Allowable Mrkt. Share Increase 0% — Less than 5% Any increase, provided it does not cause FPI’s market share to exceed 5% 5% — Less than 10% 3%, provided it does not cause FPI’s market share to exceed 10% 10% — Less than 15% 2% provided it does not cause FPI’s market share to exceed 15% 15% — Less than 20% 1.5% provided it does not cause FPI’s market share to exceed 20% 20% — Less than 25% 1% provided it does not cause FPI’s market share to exceed 25% Over 25% Any increase in market share would be deemed “significant” (J.A., 182-84, 437-38, 670-71, 1098 ¶8, 1485 ¶ 8.) C. The Board’s Significant Expansion Decisions Following the promulgation of the Guidelines, UNICOR pursued a policy of maintaining a relatively low market share in new product areas, rather than significantly expanding its existing operations. See (J.A., 351-52). Federal inmate populations continued, however, to increase throughout the early 1990’s. This increase compelled UNICOR to shift its policy and request that the appellee-defen-dant, Board, authorize several significant expansions. See (J.A., 351-52). 1. UNICOR’s Significant Expansion of Dorm & Quarters Furniture Production UNICOR first proposed to significantly expand its production of dorm and quarters furniture (“D&Q furniture”) from approximately $20 million in annual sales in 1995 to $35 million in annual sales by the year 2000 (hereinafter the “D&Q furniture expansion”). See Quarters Furniture Mfrs. Ass’n v. Federal Prison Indus., No. 95-2237 (D. D.C. Mem. Opinion filed Aug. 28, 1998) (hereinafter “QFMA”) at 6. Shortly after presenting the proposal to the Board, UNICOR discovered several irregularities regarding its past compliance with the Guidelines. Id. The Board responded by ordering an internal investigation to determine the extent of these irregularities. Id. On January 26, 1996, UNICOR issued a “White Paper” detailing its historical production of D&Q furniture. See (J.A., 1330-1341). The White Paper identified three occasions throughout 1991-1993 where UNICOR was obliged, but failed, to initiate the CARP. UNICOR explained that its failure to comply with the Guidelines was the result of the inherent difficulties in monitoring inmate employment levels, plant size, and equipment capacity, as well as interpretative difficulties with the definition of significant expansion. See (J.A., 1339-41). The White Paper offered two recommendations. First, it advised that, “The definition of Significant Expansions needs to be reviewed, with input from the.private sector, to make sure it is fair, clear and practical in its application.” (J.A., 1341.) Secondly, “[WJhatever factors are chosen as indicators of significant expansion, mechanisms must be put in place so that necessary data ... is adequately collected.” (J.A., 1341.) With respect to the second recommendation, the White Paper noted, “Over the past year, formal direction has been given and a number of steps have been taken, to correct this deficiency.” (J.A., 1341.) On March 8, 1996, the Board partially authorized UNICOR’s proposed significant expansion of D&Q'furniture. See QFMA, at 6. In its decision, the Board acknowledged the violations chronicled in the White Paper. Id. The Board determined, however, that it would have approved these expansions had UNICOR presented the proposals in a timely manner. See QFMA, at 7. It further determined that UNICOR’s then-current market share, the limited non-federal market for D&Q furniture, and the industry’s domination by small businesses, required a lesser expansion than that sought by UNICOR. See QFMA, at 8-9. Accordingly, the Board approved a significant expansion to $26 million in annual sales by the year 2000, rather than the $35 million requested by UNICOR. See QFMA at 8-9. 2. UNICOR’s Significant Expansion of Systems Furniture Production UNICOR meanwhile proposed to significantly expand its production of Office Furniture. Specifically, UNICOR proposed to expand its existing systems furniture production from $70.5 million in annual sales in 1995 to $150 million in annual sales by the year 2000 (hereinafter the “Systems Furniture Expansion”). See (J.A., 203, 1102 ¶ 50). UNICOR’s initial estimates indicated that the Systems Furniture Expansion would increase inmate employment by approximately eighty-six percent. See (J.A., 225). UNICOR further estimated that the proposed expansion would require the activation of a new systems furniture factory. See (J.A., 225). The market share analysis indicated that the Systems Furniture Expansion would increase UNICOR’s federal market share from approximately fifteen percent in 1995 to approximately twenty-four percent in 2000. See (J.A., 203). As the Systems Furniture Expansion triggered each tier of the Guidelines, the Board initiated the CARP. UNICOR accordingly prepared a Comprehensive Impact Study regarding the potential impact of the Systems Furniture Expansion on the private sector (the “Systems Impact Study”). See (J.A., 200-49). It placed notice of the Systems Furniture Expansion in the CBD, see (J.A., 198-99, 1101¶¶ 37-39), and mailed notice to various vendors and trade associations, including Herman Miller, see (J.A., 185-95, 1101 ¶ 38). UNICOR thereafter provided the Systems Impact Study to requesting entities and received various comments. See (J.A., 249-69, 337-40, 1101 ¶¶ 41-42). CGP requested that the Board hold a public hearing on the proposed significant expansion. See (J.A., 251-69, 336-37). The Board held a public hearing on December 7,1995 where representatives from several trade associations — CGP, the Business Products Industry Association (“BPIA”), and the Business and Institutional Furniture Manufacturer’s Association (“BIFMA”) — presented a coordinated opposition to the proposed significant expansion. See (J.A., 346-419). On February 6, 1996, the Board authorized the Systems Furniture Expansion. See (J.A., 420-22). The Board determined: FPI has proposed that the corporation increase production of systems and ADP furniture to $150 million annually by FY 2000. After analyzing the material submitted, and reviewing the testimony heard on this matter, it is the finding of the Board of Directors that a somewhat reduced expansion is appropriate and would not result in FPI capturing more than a reasonable share of the market or constitute an undue burden on the systems and ADP furniture industry. (J.A.,420). With regard to its further judgment that “the sales levels authorized ... [would] not place an undue burden upon the systems and ADP furniture industry nor free labor,” (J.A., 421), the Board emphasized four factors: (1) The majority of the firms in the industry were “not heavily involved in the Federal market for systems and ADP furniture” (J.A., 421.) Indeed, “[f]or most of the companies listed on the GSA schedules for systems and ADP furniture, less than 4% of their total sales [went] to the Federal government.” (J.A., 421.) (2) The total domestic market for systems furniture was large and projected to grow throughout the expansion thereby offsetting UNI-COR’s increased sales. See (J.A., 421). (3) The industry was dominated by a small number of large firms. See (J.A., 421-22). (4) UNICOR’s alternative methods to address increased inmate populations (i.e., subcontracting, vertical integration, recycling, and sales to charitable organizations) failed to achieve UNICOR’s statutory mandate to employ the maximum number of inmates. See (J.A., 422). The Board authorized annual sales in the amount of $130 million by the year 2000, rather than the $150 million requested by UNICOR. See (J.A., 420-21). It “encouraged FPI to pursue partnerships with members of the systems and ADP furniture industry in the effort to lessen FPI’s impact on the private sector.” (J.A., 422). The Board explained: “Since [we have] determined that an FPI sales level less than requested is appropriate, [we] do[ ] so with the expectation that resulting partnerships should be substantial, in order to absorb significant FPI employment.” (J.A., 422.) 3. UNICOR’s Significant Expansion of Office Seating Furniture Production and the Board’s Retroactive Authorization of the 1991-1992 Unauthorized Expansions UNICOR further proposed to expand office seating furniture production from $54.4 million in annual sales in 1995 to $110 million in annual sales by 2001 (the “Office Seating Expansion”). See (J.A., 470). UNICOR’s initial estimates indicated that the Office Seating Expansion would increase inmate employment between eighty-five to one hundred percent. See (J.A., 496). UNICOR further estimated that the proposed expansion would require the activation of three new office seating furniture factories. See (J.A., 496). Pursuant to the Guidelines, UNI-COR conducted a market share analysis indicating that the Office Seating Expansion would increase .UNICOR’s federal market share from approximately twenty-one percent in 1995 to approximately thirty-four percent in 2001. See (J.A., 496). Consequently, the Board initiated the CARP. UNICOR prepared a Comprehensive Impact Study regarding the potential impact of the Office Seating Expansion on the private sector (the “Office Seating Impact Study”). See (J.A., 467-526). While preparing the Office Seating Impact Study, UNICOR again discovered that it failed to comply with the Guidelines, this time in 1991 and 1992. See (J.A., 470, 475-76, 1497 ¶¶ 106-08). Specifically, inmate employment levels increased more than ten percent in each year, but UNICOR did not conduct a market share analysis. UNICOR explained its failure in regard to the 1991 increase: [A]t the time, FPI focused most of its guidelines [sic] vigilance and analysis on the opening of new factories, and did not maintain an accurate tracking of inmates employed producing office seating. Furthermore, it was the belief of FPI staff that the corporation’s share of the Federal market for office furniture was decreasing, due to a sharp increase in Federal procurements. Thus, the public involvement guideline process [the CARP] would not be required since there was no growth in FPI’s market share. (J.A., 476.) In support of this explanation, UNICOR attached to the Office Seating Impact Study a chart from 1990 indicating its expected decline in market share during 1991. See (J.A., 514). With respect to the 1992 increase in inmate employment, UNICOR conceded that the increase, coupled with its expected market share of 10.89%, required the initiation of the CARP. See (J.A., 476). UNI-COR repeated the explanation that it failed to “track the level of inmate employees for each product.” (J.A., 476.) It reasoned, however, that “It [was] likely that had an examination of FPI’s [office] seating production taken place, FPI would have initiated the guidelines process at this time.” (J.A., 476.) Therefore, “[i]n light of the fact that FPI failed to initiate the industry involvement guidelines process in response to its expansion of production in FY 1992,” (J.A., 477), UNICOR requested the Board to “[R]atify the Corporation’s expansion of office seating during that time, taking into consideration the relevant data for that point in time,” (J.A., 477). UNICOR then pursued all of the relevant procedures under the CARP for the purposes of obtaining: (1) the Board’s ratification of the 1991 and 1992 expansions; and (2) the Board’s authorization of the proposed Office Seating Expansion. See (J.A., 439-567, 1107 ¶¶ 91-92). CGP and Knoll received versions of the Office Seating Impact Study, see (J.A., 527-28, 531); however, they declined to respond with any comments. BIFMA, a member of the CGP’s board of directors, provided extensive written comments, as well as requested a hearing. See (J.A., 553-54, 561-63, 1108 ¶¶ 98-99); (App. to Br. of Defs.-Ap-pellees). In July, 1996, the Board held a public hearing regarding the Office Seating Expansion. See (J.A., 572-646). Representatives from, inter alia, BIFMA, Herman Miller, Haworth, and Knoll attended the hearing and jointly presented statements in opposition to the proposed significant expansion. See (J.A., 572-646, 1108 ¶¶ 101-103). In September, 1996, the Board issued its decision: (1) retroactively ratifying the 1991-1992 unauthorized expansions; and (2) authorizing the proposed Office Seating Expansion. See (J.A., 654-59). With respect to the unauthorized expansions, the Board reasoned: In connection with another earlier instance of unauthorized expansion, the Board has undertaken a review of expansion in all FPI product lines since implementation of the guidelines, being conducted by independent auditors. The question, now, however, is how to deal with this situation in the context of office seating. Any analysis and decision must begin with FPI’s statute, which provides that FPI should have no unreasonable share of the market, and should not unduly impact on any single private industry. Any remedial action will be predicated on what extent, if any, the statute has been violated in these two very important aspects. (J.A., 655.) The Board accordingly examined UNICOR’s federal market share from 1990-1994, as well as the private sector sales of office seating. The Board concluded, “[Bjased on market performance since 1991 the industry has not been adversely affected, and that UNICOR’s market share is reasonable. The Board therefore approves FPI’s request to ratify its sales levels achieved, subsequent to and as a result of is expanded capacity during 1991 and 1992.” (J.A. 656.) Turning to the proposed Office Seating Expansion, the Board authorized the proposal, resting its decision on four bases: (1) the federal office seating market was slightly over $1 billion, rather than the smaller figure advanced by BIFMA; (2) the federal market was projected to expand during the pertinent period, thereby minimizing UNICOR’s increased market share; (3) the domestic office seating market was expected to expand, thereby increasing sales for the private sector manufacturers; and (4) UNICOR’s proposed expansion would not affect private-sector employment as the impact of UNICOR’s expansion would be dispersed throughout numerous manufacturers in the industry. See (J.A., 657-58). 4. UNICOR’s Significant Expansion of Office Case Goods Production UNICOR also proposed to significantly expand its production of office case goods from $30.3 million in annual sales in 1995 to $80 million in annual sales by 2001 (the “Office Case Goods Expansion”). See (J.A., 681). Similar to the prior proposed expansions of systems furniture and office seating, UNICOR projected that the Office Goods Expansion would result in an approximately fifty percent increase in inmate employment and require the activation of three new factories. See (J.A., 703). UNICOR further projected that its market share would increase from approximately thirteen percent in 1995 to approximately thirty percent in 2001. See (J.A., 703). Therefore, the Board initiated the CARP. UNICOR prepared a Comprehensive Impact Study regarding the potential impact of the Office Case Goods Expansion on the private sector (the “Office Case Goods Impact Study”). See (J.A., 678-722). UNICOR proceeded with the CARP, and the Coalition submitted comments on the proposed expansion. See (J.A., 723-94,1111 ¶¶ 139-40). The Board held a hearing on October 8, 1996 whereby BIFMA and others presented statements in opposition to the Office Case Goods Expansion. See (J.A. 796-890, 1111 ¶ 142). On December 17, 1996, the Board issued its decision authorizing the Office Case Goods Expansion. See .(J.A., 891-896). The Board rested its decision on the projected growth of the federal market, as well as the projected growth in the domestic market for sales of office case goods. The Board acknowledged, however, the large discrepancy between UNICOR’s estimate regarding the size of the federal market and the private-sector’s significantly lower estimate. See (J.A., 893). In an effort to account for the discrepancy, the Board authorized less than UNICOR’s full expansion request — authorizing a growth to $70 million by 2001. See (J.A., 892-93). Additionally, the Board directed UNICOR to convene an independent panel of experts to review its methodology for calculating the federal market, and agreed to consider any request to modify the expansion decision in the event the panel uncovered errors in UNICOR’s methodology. See (J.A., 893-96). D. Quarters Furniture Mfrs. Ass’n v. Federal Prison Indus. Shortly following the Board’s 1996 significant expansions decisions, the Quarters Furniture Manufacturers’ Association (“QFMA”) — an industry association comprised of private manufacturers of D&Q furniture — filed a complaint in the United States District Court for the District of Columbia challenging the D&Q furniture significant expansion. See QFMA, at 1-27. Principally relying on the White Paper, QFMA alleged that UNICOR and the Board violated the APA by failing to initiate the CARP from 1992-1995. See QFMA at 2. QFMA alternatively alleged that in the event the Guidelines allowed for such unauthorized expansions, the Guidelines themselves violated section 4122 and the APA. Id. QFMA’s complaint requested declaratory relief, as well as an injunction “prohibiting the defendants from continuing to violate the statute, and directing [UNICOR] to return to appropriate levels of production.” Id. UNICOR conceded that it violated the Guidelines during 1992-1995, but asserted that “[T]he Board’s March 1996 decision [authorizing the significant expansion of D&Q Furniture] superceded and effectively moot[ed] plaintiffs case.” See QFMA at 10. The court partially concurred in UNI-COR’s contention, opining that the failure on the part of QFMA to challenge UNI-COR’s current production levels precluded equitable relief in the form of a “roll-back” of current production. See QFMA at 12-13. The court reasoned, however, that “[W]here the agency wholly fails to comply with its regulations, and provides no record for its decision, the court should conclude that the agency acted unlawfully, and should vacate the decision with a remand to the agency.” QFMA at 16 (citations omitted). The court then acknowledged that “[I]t could order the Board to adjust the future levels of FPI’s production to return to the market that portion of the share that the Board decides crossed the line from reasonable to unreasonable.” QFMA at 12 (citation omitted). Accordingly, the court remanded the matter to the Board “with directions that the Board must illicit [sic] comments with respect to the increases in FY 1991 to 1995 ... make specific findings as to whether FPI obtained more than a reasonable share of the market ... and ascertain what percent of the share was unreasonable.” See QFMA, at 25. E. The Underlying Action More than a year later, the Coalition filed the underlying action challenging UNICOR’s significant expansions in Office Furniture production. See Coalition for Gov’t Procurement v. Federal Prison Indus., 154 F.Supp.2d 1140 (W.D.Mich.2001). The complaint specifically alleged seven classes of claims. The first class of claims (Counts I — III) alleged that UNICOR engaged in unauthorized significant expansions of systems furniture, office seating, and office case goods throughout 1991— 1995 (hereinafter the “unauthorized significant expansions”) in violation of section 4122 and the APA. The second class (Count IV) alleged that the Board’s retroactive authorization of the 1991 and 1992 unauthorized expansions in office seating (hereinafter the “retroactive authorization”) violated the APA and the organic statute. The third class (Count V) sought relief arising from the Board’s purported violations of the organic statute and the APA in authorizing UNICOR’s 1995-1996 requests to significantly expand its production of systems furniture, office seating, and office case goods (hereinafter the “1996 significant expansion decisions”). The fourth class (Count VI) presented a facial challenge to the Guidelines, whereas the fifth class (Count VII) alleged that UNICOR’s unauthorized significant expansions in 1991-1995 constituted a compensa-ble taking in violation of the Fifth Amendment. The final class of claims challenged two of UNICOR’s practices with respect to the private sector. The first alleged that UNICOR’s practice of promoting “pass through” furniture violated the APA and organic statute (Count VIII). The second claim alleged that UNICOR’s practice of selling Office Furniture directly to private subcontractors employed on federal projects violated the express prohibition of section 4121, as well as the APA (Count IX). Following lengthy discovery, the parties filed cross-motions for summary judgment. By order dated August 8, 2001, the district granted the defendants’ motion in its entirety, while denying the Coalition’s motion. See 154 F.Supp.2d at 1156. The instant appeal ensued. III. STANDARD OF REVIEW This Court reviews the grant of summary judgment de novo. See Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.CivP. 56(c). When confronted with a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. A genuine issue for trial exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Coalition advances its claims (with the exception of the takings claim) pursuant to UNICOR’s organic statute and the APA. It is well-settled that UNICOR’s organic statute does not authorize a private right of action. See Galvan v. Fed. Prison Indus., 199 F.3d 461, 465 (D.C.Cir.1999) (“Congress purposefully kept FPI out of the commercial world and limited its exposure to the courts.”). However, the APA provides for judicial review of agency action. See 5 U.S.C. §§ 701-706. When reviewing an administrative agency’s final decision under the APA, we review the district court’s summary judgment decision de novo, while reviewing the agency’s decision under the arbitrary and capricious standard. See Sierra Club v. Slater, 120 F.3d 623, 632 (6th Cir.1997) (citation omitted). Thus, the agency’s decision will be set aside “only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Slater, 120 F.3d at 632 (citations omitted). Alternatively, when the issue is whether the agency followed the requisite legal procedure, our review is limited, but exacting. See Natural Res. Def. Council, Inc. v. Sec. & Exch. Comm’n, 606 F.2d 1031, 1045, 1048-49 (D.C.Cir.1979). While de novo, we tailor our review to determine whether “statutorily prescribed procedures have been followed.” Id. at 1045. IY. THE CLAIMS CHALLENGING THE UNAUTHORIZED SIGNIFICANT EXPANSIONS, THE 1996 SIGNIFICANT EXPANSION DECISIONS, AND THE BOARD’S RETROACTIVE AUTHORIZATION The Coalition’s first three classes of claims — those challenging the unauthorized significant expansions, the 1996 significant expansion decisions, and the Board’s retroactive authorization (hereinafter collectively, the significant expansion claims) — share common issues of fact and law. Accordingly, we initially address these claims in their entirety. A. Jurisdictional and Procedural Challenges 1. Mootness The defendants, through amicus curiae, Correctional Vendors Association (“CVA”), assert that the significant expansion claims are moot. We review questions of mootness de novo. See Craft v. United States, 233 F.3d 358, 373 (6th Cir.2000). The heavy burden of demonstrating mootness rests on the party claiming mootness. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Article III of the United States Constitution vests this court with jurisdiction to address actual cases and controversies. See U.S. Const, art. Ill, § 2. Under the “case or controversy” requirement, we lack authority to issue a decision that does not affect the rights of the litigants. See Southwest Williamson County Cmty. Assoc. v. Slater, 243 F.3d 270, 276 (6th Cir.2001). Indeed, we have a “continuing obligation” to enquire whether there is a present controversy as to which effective relief can be granted. Id. at 276 (citing McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir.1997)). “ ‘The test for mootness is whether the relief sought would, if granted, make a difference to the legal interests of the parties.’ ” Bowman v. Corr. Corp. of Am., 350 F.3d 537, 550 (6th Cir.2003) (quoting McPherson, 119 F.3d at 458). An appeal becomes moot if events have taken place during the pendency of the appeal that make it “impossible for the court to grant any effectual relief whatever....” Church of Scientology of California v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (quotation omitted). Amicus asserts that the significant expansion claims are moot because UNICOR has completed the challenged activity— that is, all of the alleged unlawful increases in production have occurred and the sales have been consummated. However, completion of activity is not the hallmark of mootness. Rather, a case is moot only where no effective relief for the alleged violation can be given. See McPherson, 119 F.3d at 458. The mootness question therefore turns on whether this court can award the Coalition “any effectual relief.” Church of Scientology, 506 U.S. at 12, 113 S.Ct. 447. Our analysis begins with an examination of the relief requested. Amicus construes the relief sought by the Coalition as follows: (1) a declaration that the defendants violated section 4122 and the APA by repeatedly failing to initiate CARP during 1991-1995; (2) a declaration that the Board’s 1996 significant expansion decisions violated the organic statute and the APA; (3) an order rescinding the 1996 significant expansion decisions; and (4) a declaration that the Board’s retroactive authorization violated the organic statute and the APA. See (Br. of Amicus Curiae Correctional Vendors Ass’n Supporting Appellee and Dismissal at 5-6). The Coalition’s multiple requests for declaratory relief warrant caution. We previously have recognized that declaratory judgment actions often require courts to face the difficult task of distinguishing “between actual controversies and attempts to obtain advisory opinions on the basis of hypothetical controversies.” Kardules v. City of Columbus, 95 F.3d 1335, 1343-44 (6th Cir.1996) (citation omitted); see also Brennan v. Rhodes, 423 F.2d 706, 706-07 (6th Cir.1970) (stating that the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, “does not broaden the jurisdiction granted to the federal courts by the Constitution and statutes enacted pursuant thereto,” and that, consequently, “there still must be a ease or controversy before a federal court can assume jurisdiction and reach the merits of a [declaratory judgment action]”). Thus, the Supreme Court has held that when considering the potential mootness of a claim for declaratory relief, “the question is ‘whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment/ ” Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 275, 61 S.Ct. 510, 85 L.Ed. 826 (1941)). The potential mootness of the claims challenging the unauthorized significant expansions At first blush, the Coalition’s request for an order declaring that UNICOR engaged in unauthorized significant expansions during 1991-1995 appears to lack the “sufficient immediacy and reality” necessary to escape the mootness doctrine. Standing alone, an order from this court declaring that UNICOR violated the organic statute and, or, the APA nearly a decade ago, would have little, if any, impact on the current legal interests of the parties. See City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); cf. Reeve Aleutian Airways, Inc. v. United States, 889 F.2d 1139, 1142 (D.C.Cir.1989) (“Past exposure to illegal conduct fails to establish a present controversy ... without a showing of present adverse effects.”). A more searching review of the record reveals, however, that the Coalition has forged the requisite link between UNI-COR’s past practices and the current interests of the parties. Specifically, the Coalition contends that the Board predicated the 1996 significant expansion decisions on data reflecting UNICOR’s purportedly unlawful production from 1991-1995. See (Br. of. Pls.-Appellants at 53) (“The 1996 decisions ... were arbitrary and capricious for three reasons. First, the Board failed to consider the fundamental question of whether FPI’s previously expanded Office Furniture production complied with its Guidelines and was appropriate.”); (Br. of Amicus Curiae Correctional Vendors Ass’n Supporting Appel-lee and Dismissal at 5) (“Plaintiffs posit that the earlier purported unauthorized significant expansions taint these subsequent expansions.”); see also 154 F.Supp.2d at 1151 (“Plaintiffs also argue that the Board’s decision on future increases failed to consider whether the then current production levels during 1996 were even legal.”). As it is undisputed that the Board has authorized UNICOR’s current production' levels through the 1996 significant expansion decisions, see (J.A., 1198-1202), and the 1996 decisions, in turn, rest on UNICOR’s allegedly unlawful production throughout 1991-1995, claims challenging the unauthorized significant expansions potentially impact UNICOR’s current production levels. The Coalition transforms potential into an immediate reality by requesting this court to issue an order (l)”directing FPI to roll back production to the levels authorized before the violations occurred”; (2) “giv[ing] back those sales FPI unlawfully took”; or (3) “capping FPI’s production at current levels and requiring FPI’s Board to fully account for the agency’s past violations before undertaking future expansion proceedings.” (Reply Br. of Pls.-Appellants at 27.) The proposed relief sought demonstrates that the Coalition seeks more than a declaration that UNICOR unlawfully and significantly expanded from 1991-1995. The Coalition has argued throughout the litigation that the unauthorized significant expansions resulted in its loss of $450 million in sales. See, e.g., (J.A., 28, 1410-11). As a remedy for this purported loss, the Coalition persistently has sought an order restoring the lost sales to the current market — a result the Coalition terms an “equitable volume sales replacement remedy,” see (J.A., 1471). While amicus interprets this requested relief as relating exclusively to the takings claim discussed infra, the Coalition conclusively has demonstrated that its “equitable volume sales replacement remedy” pertains to the unauthorized significant expansion claims. Having discerned the thrust of the relief requested, we must now consider whether this court has the authority to award such relief. It is well-established that federal courts possess broad discretion to fashion equitable remedies. See United States v. R.W. Meyer, Inc., 932 F.2d 568, 572-73 (6th Cir.1991) (observing the “principle of equity that the chancellor has broad discretion to frame a decree”). It also is established that we may craft declaratory and injunctive relief designed to preclude a federal agency from acting in contravention of its statutory and regulatory authority. See Howard v. Pierce, 738 F.2d 722, 730 (6th Cir.1984) (holding that the court may award declaratory and injunctive relief in order to ensure that the Department of Housing and Urban Development adopted regulations consistent with its enabling statute). Furthermore, the court may require an agency to modify its current or future practices in order to account for past violations of its statutes or regulations. See Charter Township of Huron, Michigan v. Richards, 997 F.2d 1168, 1175 (acknowledging the court’s authority to issue an injunction requiring the agency to conduct an environmental assessment notwithstanding the implementation of the completed action); Northwest Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1245 (9th Cir.1988) (determining that claims asserted against federal agencies alleging that the agencies unlawfully authorized the overfishing of coho salmon during the 1986 season were not moot because the court could award injunctive relief in the form of “higher escapement provisions and lower quotas in 1989”). We conclude, therefore, that this court has the broad discretionary authority to award relief in a manner akin to the “equitable volume sales replacement remedy” proposed by the Coalition. We neither must determine at this stage of the proceedings whether the Coalition ultimately is entitled to such relief, nor must we define the specific parameters of the relief. As we repeatedly have stated, the determinative factor in the mootness inquiry is whether the court possesses the authority to afford the Coalition any effectual relief. Because the response to this query is in the affirmative, the Coalition’s claims challenging the unauthorized significant expansions present actual cases or controversies. The potential mootness of the claim challenging the 1996 significant expansion decisions The Coalition’s claim challenging the 1996 significant expansion decisions also presents a justiciable case or controversy. As discussed supra, the production levels approved by the Board in 1996 are manifested in UNICOR’s current production levels. It follows a fortiori that in. the event the Board authorized the 1996 significant expansions in contravention of the organic statute and the APA, any'equitable remedy for these violations necessarily would impact UNICOR’s current production levels. Amicus attempts to escape this result by emphasizing that the Coalition’s complaint did not request the “equitable volume sales replacement remedy” in regard to the 1996 significant expansion decisions. See (Br. of Amicus Curiae Correctional Vendors Ass’n Supporting Appellee and Dismissal at 5). Indeed, the complaint requested: (1) a declaration that the 1996 significant expansion decisions violated the organic statute and the APA; and (2) an injunction rescinding those decisions. Amicus contends that because the sales authorized by the 1996 significant expansion have been completed, any proposed rescission of such sales is beyond this court’s authority. See (Br. of Amicus Curiae Correctional Vendors Ass’n Supporting Appellee and Dismissal at 17) (“Rescinding already accomplished expansions and consummated sales is not feasible.”) (Citation omitted). While it is beyond cavil that the Coalition initially requested a rescission of the 1996 significant expansion decisions, the manner of relief requested before the district court, while relevant, is not determinative in examining whether the claim is moot on appeal. Rather, the dispositive issue is whether this court possesses the authority to award any effectual relief. Church of Scientology, 506 U.S. at 12, 113 S.Ct. 447. The foregoing analysis reveals that the court has the authority to order a “roll-back” or “capping” of UNICOR’s production. We may draw on this remedy in the event the Board unlawfully authorized the 1996 significant expansions that, in turn, impacted UNICOR’s current production levels. Accordingly, the Coalition’s claim challenging the 1996 significant expansion presents a justiciable case or controversy. The potential mootness of the claim challenging the retroactive authorization Our conclusions as to the justiciable nature of the unauthorized significant expansion and 1996 significant expansion claims apply with equal force to the claim challenging the Board’s retroactive authorization. Simply, in the event we determine that the Board lacked the authority to retroactively authorize a significant expansion occurring in 1991-1992, the inescapable conclusion is that UNICOR engaged in unauthorized significant expansions during those years. The potential remedy for the Board’s unlawful conduct would be the “equitable sales volume replacement remedy” suitable for all other unauthorized significant expansions during the 1991-1995 period. Therefore, the Coalition’s claim challenging the retroactive authorization is not moot. 2. Issue Exhaustion Notwithstanding the existence of justiciable cases or controversies, the defendants assert that the administrative waiver doctrine bars judicial review of the unauthorized significant expansion and the retroactive authorization claims. The administrative waiver doctrine, commonly referred to as issue exhaustion, provides that it is inappropriate for courts reviewing agency decisions to consider arguments not raised before the administrative agency involved. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (“Simple fairness ... requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.”); see also Michigan Dep’t of Envtl. Quality v. Browner, 230 F.3d 181, 183 n. 1 (6th Cir.2000) (concluding that issues not raised during the agency’s notice and comment period were waived for purposes of appellate review); Cellnet Communications, Inc. v. FCC, 149 F.3d 429, 442 (6th Cir.1998) (ruling that the plaintiffs claim for judicial review was barred because it had not followed the Environmental Protection Agency’s administrative review procedures). Courts decline to consider issues not raised before an agency because to do otherwise would “deprive the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its action.” Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 91 L.Ed. 136 (1946). The district court determined that the Coalition waived the unauthorized significant expansion and the retroactive authorization claims because it did not raise these challenges during the hearings before the Board. The district court opined: Procedural objections like those Plaintiffs bring in this case are precisely the type of issues appropriately raised before the Board during its comment period, and thus subject to waiver if not raised. The Board of FPI provided an opportunity for Plaintiffs and other interested parties to raise the issue of procedural violations during three separate meetings of the Board during 1996. Plaintiffs were not only aware of the proceedings, but were aware of the issues to be raised at the hearings, and fully participated in the hearings. 154 F.Supp.2d at 1147 (citations omitted). Notably, the district court did not rely on Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), where the Supreme Court set forth the contours of the issue exhaustion doctrine. The Court specifically confronted a scenario where the Social Security Administration (“SSA”) denied the petitioner’s claims for benefits, and the petitioner sought review before the Social Security Appeals' Council (“Appeals Council”). See Sims, 530 U.S. at 105, 120 S.Ct. 2080. The Appeals Council denied review, and the petitioner filed suit in district court, which rejected all of the petitioner’s claims. See Sims, 530 U.S. at 105-06, 120 S.Ct. 2080. The