Access to Judicial Review – General Principles

1. Access to Judicial Review – General Principles SCT has a “presumption” of judicial review of agency actions either through special review statute or APA provisions UNLESS exceptions in § 701 apply: (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law Preclusion Congress has reasons for why it precludes judicial review and SCT is willing to honor explicitly preclusive statutes Question – Can Congress preclude review of constitutional (versus statutory) claims? Congress usually has no interest in doing this SCT heavily disfavors attempts to read statutes as precluding such review Robison SCT interpreted statutory text as not precluding constitutional claims BUT SCT disfavors such preclusion even with broadly worded preclusion provisions (see e.g.Webster v. Doe)

2. What does it mean for “agency action to be committed to agency discretion by law”? Overton Park v. Volpe – classic iteration of the standard: APA § 701(a)(2) applies when “statutes are drawn in such broad terms that in a given case there is no law to apply.” Is that the standard Webster v. Doe applies? 50 USC § 403(c) – CIA director may, in his discretion, terminate the employment of any officer or employee of the agency whenever he shall deem such termination necessary or advisable in the interests of the U.S. Is there “no law to apply” or is the statute drawn so broadly that it provides “no meaningful standard against which to judge the agency’s actions”? How does the Webster majority seem to approach this issue – what does it’s approach sound like?

3. More general issues re “committed to agency discretion” What is “supposed” to be the difference between preclusion and committed to agency discretion? Preclusion – Congress has expressed an intent to preclude judicial review through statute Committed to agency discretion – even absent express preclusion, the lack of a meaningful statutory standard leads the court to conclude that the issue is committed to agency discretion Does Justice Scalia use a third, different approach from the Webster majority or the classic Overton Park standard to determine when agency action is committed to agency discretion by law? Why? Committed to agency discretion = common law doctrines re court refusal to review (e.g., political questions, sovereign immunity . . .)

4. Summary of general principles regarding “committed to agency discretion” Courts almost always cite to the Overton Park “no law to apply” standard as the governing standard Whether they actually apply that standard is a different question as Webster v. Doe shows. But most of them think they are applying that standard. Relationship between APA § 701(a)(2) & APA § 706(2)(A) APA § 706(2)(A) – standards to which agency is supposed to adhere exist (i.e., “prudent” & “feasible” in Overton Park) Question for court is whether agency acted arbitrarily in implementing or refusing to follow the standard APA § 701(a)(2) – no clear standards exist to which agency must adhere – agency has essentially “unfettered” discretion Agency has discretion to act in terms of implementing statutory directive & court review is inappropriate

5. Committed to Agency Discretion – Prosecutorial Discretion/Failure to Institute Enforcement Proceedings Heckler v. Chaney plaintiffs sought to compel FDA to institute enforcement proceedings under the FDCA. Alleged certain drugs used in lethal injection death sentences were “unapproved uses” of “approved drugs” and violated “misbranding” & approval requirements of the FDCA. Why did the court find that the decision not to institute an enforcement proceeding under the FDCA was committed to agency discretion under APA § 701(a)(2)? How is it different from the decision to release highway funds in Overton Park?

6. More on Failure to Institute Enforcement Proceedings Heckler v. Chaney is consistent with the general trend of courts to totally defer to agency prosecutorial decisions Why then did the Courts in Leedom v. Kyne & Dunlop v. Bachowski find that agency decisions not to institute enforcement proceedings were reviewable? Leedom – Failing to institute enforcement action in clear violation of statutory mandate is reviewable. Statute precludes union from representing conflicting groups and enforcement action should have been filed. Bachowski – Statute says Sec’y “shall” institute civil action to set aside election if he finds a violation of election laws. SCT ruled that the mandatory language required the Sec’y to file the civil action.

7. Committed to Agency Discretion – Agency Regulatory Inaction • Courts are quite reluctant to review agency inaction regarding enforcement decisions (citing prosecutorial discretion) • BUT agency inaction regarding regulation – i.e., the decision not to enact a rule – is often reviewed by the courts • Consider that EPA’s refusal to enact greenhouse gas regs received “hard look” review in Mass. v. EPA • As a practical matter – courts are likely to be pretty deferential to agency’s discretionary decision not to enact a rule • BUT when the enabling statute specifically MANDATES that an agency regulate & the agency responds that it can’t or won’t or shouldn’t, it’s action is going to get scrutinized to make sure the agency hasn’t acted arbitrarily • What is the remedy if court decides agency should have acted?

8. Committed to Agency Discretion – Resource Allocation & General Appropriations Statutes • As with failure to institute enforcement proceedings, challenges to agency allocation of resources are often dismissed as unreviewable under APA § 701(a)(2). • Agency decisions to cut programs (e.g., Indian Children’s Program in Lincoln v. Vigil) are rarely reviewed even if the program is contemplated in federal laws. • Monies appropriated via lump sums to fund a variety of programs contemplated by federal law are left to the discretion of the agency to allocate. • Agency needs to be able to “adapt to changing circumstances” • Allocation decisions involve “a complicated balancing” of factors “peculiarly within [agency] expertise” • Note also how similar this reasoning is to Norton’s issue of what is “agency action”