failure to investigate and/or enforce is discussed in detail in connection with Heckler v. Chaney, infra.19

III. Defenses to Judicial Review

Agency actions or inactions have long been held to be presumptively reviewable. The APA explicitly provides two exceptions to the presumption of reviewability of agency action. These exceptions are when (1) the substantive statute at issue precludes judicial review, and (2) agency action is committed to the agency's discretion by law. 20

The first exception is narrowly construed; the agency must show by "clear and convincing" evidence that judicial review is intended to be precluded. There are certain statutes, however, that make the agency decision final and not subject to judicial review, as in cases involving section 1122 review of federal financial participation for hospital construction2 or Veterans Administration disability benefit cases.

22

Even in instances in which the statute purports to preclude review, the court will review a claim that the agency has failed to follow its own procedures, although it will not review the decision on the merits. In Graham v. Caston, 23 HUD had failed to respond to complaints by owners of Section 235 homes that there were construction defects in their homes. The court ordered HUD to make a determination on the complaints, stating that, if relief was lawfully denied to the complainants, they probably had no further judicial remedy. Additionally, if an agency official clearly departs from statutory authority, review may be available, notwithstanding an explicit statutory preclusion.2 The second exception-whether the matter is committed to "agency discretion"-presents greater difficulty, particularly after the Supreme Court's recent decision in Heckler v. Chaney. "Agency discretion" has historically been very narrowly construed and has been invoked by a court only if there was "no law to apply" or no regulations to apply.26 The burden of establishing non-reviewability is on the agency.27 The Supreme Court has very recently reaffirmed the principle that agency actions are to be considered presumptively reviewable. 28

24

25

Before Chaney, some of the considerations relevant to the determination of whether a matter is committed to "agency discretion" included:

(1) the broad discretion given to the agency in a particular area (i.e. no guidelines or formula in the statute or regulations);

20. 5 U.S.C. § 701(a).

Even if the statute is drawn in very broad terms, the agency may have promulgated a regulation providing the guidelines that the reviewing court can use.

30

Heckler v. Chaney31 has potentially broadened the agency discretion exception so that now more agency actions are potentially unreviewable. Chaney was an action by death row inmates in Texas and Oklahoma to compel the U.S. Food and Drug Administration to take enforcement action against the alleged unapproved use (i.e. for executions) of an approved drug. The FDA declined to take the requested enforcement actions, and on review the Supreme Court upheld the agency's decision. Reversing the traditional administrative review principles, the Court held that these enforcement decisions were “presumptively unreviewable" as being committed to agency discretion.

Justices Brennan and Marshall wrote separate opinions concurring in the judgment only. Justice Brennan set up several situations in which this new "presumption of unreviewability” might not apply. For example, this presumption may not apply when:

(1) the agency claims that it has no statutory jurisdiction to reach certain conduct (construction of the statute is left to the court);

(2) the agency engages in a pattern of non-enforcement of clear statutory language (this case would require factual development of agency patterns);

(3) the agency has refused to enforce a regulation lawfully promulgated and still in effect; or

(4) the non-enforcement decision violates constitutional rights, 32

Justice Marshall observed that "easy cases make bad law." He would limit the "presumption of nonreviewability," rendering it applicable only in cases in which the agency's reason for non-enforcement was not shown to be a sham or induced by a bribe, vindictive motives, or simply through neglect; if the statute does not require the agency to prosecute all violations; or if the decision not to prosecute is based on resource allocation or priority choices. These factors would support a finding of non-arbitrariness or non-capriciousness. The agency would still have the burden of establishing as a matter of fact its entitlement to this defense.

One analysis of Chaney is that it creates only a limited exception to the availability of judicial review: If an agency has

19. Chaney, 470 U.S. 821.

21. 42 U.S.C. § 1320a-1(f).

22. 38 U.S.C. § 211(a).

23. Graham v. Caston, 568 F.2d 1092 (5th Cir. 1978). 24. Id.

25. Chaney, 470 U.S. 821.

26. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Environmental Defense Fund v. Marsh, 651 F.2d 983 (5th Cir. 1981). 27. Dunlop v. Bachowski, 421 U.S. 560 (1975); Abbott Laboratories, 387 U.S. 136.

28. Michigan Academy of Family Physicians, 106 S. Ct. 2133.

29. American Fed. Gov't Employees v. Brown, 680 F.2d 722 (11th Cir. 1982), cert. denied sub nom. American Fed. Gov't Employees, Local 2017 v. Weinberger, 459 U.S. 1104 (1983) (challenge to Army's decision to contract out certain functions to private enterprises, thus resulting in layoffs of hundreds of civilian employees at Fort Gordon, held committed to agency discretion).

30. Environmental Defense Fund, 651 F.2d 983, 1003. 31. Chaney, 470 U.S. 821.

32. Id. at 839.

36

In several other cases, however, courts have determined that the agency had taken some action that removed the case from the Chaney exception. In California Human Development Corp. v. Brock, the court found that Chaney was inapplicable, thus permitting review of the Department of Labor's method of distributing funds under the Job Training Partnership Act. The court found that, once the agency acted to distribute these funds, its method of doing so was reviewable. The D.C. Circuit found Chaney inapposite in a case in which the Secretary of Labor had certified that a contract contained certain provisions, which were a condition precedent to the Secretary's statutory right to distribute certain funds.37 In another case challenging an agency's actions, the D.C. Circuit has also stated:

[T]he agency itself can often provide a basis for
judicial review through the promulgation of reg-
ulations or announcement of policies. Once an
agency has declared that a given course is the
most effective way of implementing the statutory
scheme,... the courts are entitled to closely ex-
amine agency action which departs from this
stated policy....38

Moreover, the Seventh Circuit similarly found that an agency's own regulations provided the meaningful standards for review that were lacking in Chaney." In a case in which the Secretary of HHS had promulgated regulations on SSI eligibility and then

39

entered into a consent decree on the scope of such eligibility, the Second Circuit found that the Secretary's failure to amend those regulations to comport with the consent decree was reviewable.4 40

Even in cases in which the agency has totally failed to act, the Chaney presumption is still rebuttable by a showing that there is "law to apply" to review the agency's inaction. For instance, the D.C. Circuit found statutory law to apply in the distribution of funds to public transit authorities,11 and in the 33 standards enumerated by Congress to govern decisions to grant or deny nonimmigrant visas.42 Likewise, one court found that the Secretary of Agriculture's failure to claim reserved water rights in wilderness areas was reviewable pursuant to the clear and specific directives in the governing statute.43 In another case, Iowa v. Block, the court held that Chaney was inapplicable because the Secretary of Agriculture had totally failed to implement a program as Congress had mandated.

44

By contrast, the Eleventh Circuit has held that an absence of eligibility standards in a statute, together with the absence of any list of conditions for denial of benefits, meant there was no law to apply to a claim under the Flood Control Act. 45 Another troubling case, Gillis v. HHS,46 found that the failure of the HHS to "monitor" or "enforce" the Hill-Burton regulations was not reviewable under the APA. One of the disturbing things about the decision in Gillis is that it did not simply rely on Chaney, but rather reached its result by an extensive and distinctive analysis. First, the court found that HHS's failure to take action on the plaintiffs' complaints against Hill-Burton facilities was not a final agency action and therefore not reviewable and, in so ruling, used the analogy of EEOC complaints in which the agency's "negligence or inaction in the internal processing of a complaint... are merely preparatory to a lawsuit by either the EEOC or the charging party."47 Second, the court determined that plaintiffs did not satisfy 5 U.S.C. § 704's "no other adequate remedy in a court" requirement, since they could sue the offending hospitals.“ Finally, relying on the holding in United States v. S.A. Empresa de Viacao Aerea Rio Grandense,49 the court ruled that the alleged failure to monitor concerned a matter reserved to agency discretion and therefore was not reviewable.

On the other hand, the Gillis court did observe that:

48

33. Id. at 833.

34. Rush v. Macy's New York, Inc., 775 F.2d 1554 (11th Cir. 1985) (FTC's decision not to sue a creditor); Schering Corp. v. Heckler, 779 F.2d 683 (D.C. Cir. 1985) (challenge to FDA's settlement of an action against a drug company); Railway Labor Executives Ass'n v. Dole, 760 F.2d 1021 (9th Cir. 1985) (attempt to compel Department of Labor to assess penalties for safety violations); Gillis v. HHS, 759 F.2d 565 (6th Cir. 1985) (agency's failure to monitor and enforce compliance with Hill-Burton Act); Investment Co. Inst. v. FDIC, 728 F.2d 518 (D.C. Cir. 1984) (agency's failure to investigate savings bank's plan to sell mutual funds); NAACP v. Meese, 615 F. Supp. 200 (D.D.C. 1985) (attempt to prevent Justice Department from taking certain positions in litigation).

35. Bethlehem Steel Corp. v. EPA, 782 F.2d 645 (7th Cir. 1986). 36. California Human Dev. Corp. v. Brock, 762 F.2d 1044 (D.C. Cir. 1985).

37. Amalgamated Transit Union Int'l, AFL-CIO v. Donovan, 767 F.2d 939 (D.C. Cir. 1985).

38. Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985) (footnote and citations omitted).

39. Cardoza v. Commodity Futures Trading Comm'n, 768 F2d 1542 (7th Cir. 1985).

40. Berger v. Heckler, 771 F.2d 1556 (2d Cir. 1985).

41. Amalgamated Transit Union, 767 F.2d 939, 945.

42. Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986).
43. Sierra Club v. Block, 615 F. Supp. 44, 48 (D. Colo. 1985).
44. Iowa v. Block, 771 F.2d 347 (8th Cir. 1985).

45. Greenwood Util. Comm'n v. Hodel, 764 F.2d 1459 (11th Cir. 1985).

46. Gillis, 759 F.2d 565.

47. Id. at 575.

48. The existence of this explicit remedy was apparently central to the result, since the court mentioned it several times and contrasted Gillis with Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) (en banc), in which APA review was conducted because Title VI did not provide an explicit remedy for the agency's failure to enforce its nondiscrimination provisions. Gillis, 759 F.2d at 578 n. 19.

49. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, reh'g denied, 105 S. Ct. 26 (1984).

we do not hold that the agency's performance... is
entirely immune from judicial review. "When
agency recalcitrance is in the face of a clear
statutory duty or is of such magnitude that it
amounts to an abdication of statutory responsibil-
ity, the court has the power to order the agency
to act to carry out its substantive statutory
mandates." Public Citizen Health Research Group
v. Commissioner, 740 F.2d 21, 32 (D.C. Cir.
1984), 50

Yet, the court makes it clear that it would have to find something in the pleadings or the record to reach a conclusion that the agency had seriously neglected its statutory and regulatory duties.

51

Another variation on the Chaney theme is found in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock, 52 in which the court held that Chaney precluded review of a non-enforcement decision, but not of the agency's statutory interpretation, formed during the course of reaching the non-enforcement decision, that certain activities were not covered by the Act. 53

In short, while Chaney represents a troubling departure from long-standing precedent concerning the reviewability of agency actions, and will require attention in most APA cases, it is not by any means the death knell for APA actions. It does behoove plaintiffs' counsel to examine carefully the nature of the agency action or inaction at issue, to plead the agency's transgressions carefully and with some detail, and to consider factual discovery as to the agency's practices with respect to the matters involved in the litigation.

IV. Scope and Standard of Review

The principles establishing the scope and standard of review under the APA are found in 5 U.S.C. § 706 and concern whether the agency's action or inaction was

50.

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(4) without observance of procedure required by law; (5) unsupported by substantial evidence in a case subject to sections 556 and 557 or otherwise reviewed on the record of an agency hearing provided by statute;

(6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

Gillis, 759 F.2d at 578.

51. Id.

52. International Union, United Automobile, Aerospace and Agricultural Implement Workers of Am. v. Brock, 783 F.2d 237 (D.C. Cir. 1986).

53. See also Assiniboine & Sioux Tribes of the Ft. Peck Indian Reservation v. Board of Oil & Gas Conservation of Mont., 792 F.2d 782 (9th Cir. 1986) (plaintiff's claim that the agency is exceeding its statutory authority is reviewable even though the agency's decision on the merits might not be).

54

Generally, agency actions are accorded great deference by courts, unless the disputed order, decision, or action directly involves the construction of the organic statute under which the agency operates. As to statutory construction issues, courts consider themselves the final interpreter of the meaning of the statute. 55 Absent a "compelling indication" that the agency's interpretation of the statute is wrong56 or that the interpretation does not further the goals of the legislation, the court will generally uphold the agency's interpretation of the statute, unless the agency's decision is arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence in the record taken as a whole. 59

57

58

54. Scarborough v. Office of Personnel Management, 723 F.2d 801 (11th Cir. 1984).

55. Bureau of Alcohol, Tobacco, & Firearms v. Federal Labor Relations Auth., 464 U.S. 89 (1983).

56. Drysdale v. Spirito, 689 F.2d 252, 261 (1st Cir. 1982). 57. Zuber v. Allen, 396 U.S. 168 (1982).

58. Lyng v. Payne, 106 S. Ct. 2333 (1986); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969).

59. Charter Peachford Hosp., Inc., v. Bowen, 803 F.2d 1541 (11th Cir. 1986); Cubanski v. Heckler, 781 F.2d 1421 (9th Cir. 1986), review granted sub nom. Bowen v. Kizer, 55 U.S.L.W. 3556 (U.S. Feb. 24, 1987) (No. 86-863).

60. Federal Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981); Curry, 738 F.2d 1556, 1560 n.6 (failure to implement FmHA loan deferral program).

61. National Wildlife Fed'n v. Marsh, 721 F.2d 767, 777-78 (11th Cir.), reh'g denied, 747 F.2d 616 (1984).

62. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, reh'g denied sub nom. American Iron & Steel Inst. v. Natural Resources Defense Council, Inc., 468 U.S. 1227 (1984). 63. Securities Indus. Ass'n v. Board of Governors, 468 U.S. 137, 143 (1984).

64. See also Schwartz, Administrative Law Cases During 1984, 37 Admin. L. Rev. 133, 154 n.112 (Spring 1985).

65. Borden v. Meese, 803 F.2d 1530 (11th Cir. 1986) (citing American Paper Inst. v. American Elec. Power Serv. Corp., 461 U.S. 402 (1983)).

be upheld.66

The reviewing court will closely scrutinize the legislative history of a statute to determine what Congress had in mind. For example, in Ashton v. Pierce,67 plaintiffs challenged the way in which HUD was implementing the Lead Based Paint Poisoning Prevention Act. They argued that the regulations were too lenient and that HUD had failed to enforce them in any case. Plaintiffs disputed the agency's use of the phrase "most practicable" when relating to methods of eliminating lead paint, because the statute required removal “to the extent practicable." Furthermore, HUD had developed the "most practicable" approach by employing a cost-effectiveness analysis, which plaintiffs claimed was not permitted by the statute and its legislative history. The court agreed and ordered HUD to engage in further rulemaking.

69

In contrast to an argument frequently made by the agencies, congressional approval will not be presumed by its silence if the agency's action is contrary to the plain meaning of the statute.68 Courts will also require agencies to comply with their own procedures or policies whether or not these procedures or policies have been formally promulgated as regulations." In instances in which an agency attempts to change its regulations, courts will require a showing that the change is not "arbitrary, capricious, or an abuse of discretion." The agency may be required to make the same kind of showing to rescind the regulation as it would have to make to enact the regulation. This showing includes a factual and reasonable basis for the rescission that is related to the purposes of the statute. While there were some peculiarities in the statutory scheme involved in the case of Motor Vehicle Manufacturers Association v. State Farm Mutual, generally courts will place great weight on the agency's long-standing interpretations and policies and closely scrutinize departure from agency precedent. Moreover, the government cannot supersede administrative regulations by internal operating instructions."

V. Relief

70

72

71

Under 5 U.S.C. § 706, the court can "compel agency action unlawfully withheld or unreasonably delayed” and “hold unlawful and set aside agency action, findings, and conclusions found to" suffer from the objections set forth earlier.

These powers have permitted courts to order agencies to engage in further rulemaking if a rule is found to be arbitrary or

66. Ryder Truck Lines v. United States, 716 F.2d 1369, 1381 (11th Cir. 1983), cert. denied sub nom. American Trucking Ass'n v. United States, 466 U.S. 927 (1984).

67. Ashton v. Pierce, 716 F.2d 56 (D.C. Cir. 1983).

68. Securities Exch. Comm'n v. Sloan, 436 U.S. 103 (1978); Ashton, 716 F.2d 56.

69. Morton v. Ruiz, 415 U.S. 199 (1974); Accardi v. Shaughnessy, 347 U.S. 260 (1954); Chevron v. Andrus, 588 F.2d 1383 (5th Cir. 1979).

70. Motor Vehicle Mfrs. Ass'n v. State Farm Mutual, 463 U.S. 29 (1983); Burlington Truck Lines v. United States, 371 U.S. 156 (1962). See also Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983); Frank Diehl Farms v. Secretary of Labor, 696 F.2d 1325 (11th Cir. 1983).

71. Ryder Truck Lines, 716 F.2d 1369 (11th Cir. 1983), cert. denied, 466 U.S. 927 (1984).

72. Flores v. Bowen, 790 F.2d 740 (9th Cir. 1986).

In VNA of Greater Tift County v. Heckler,74 the Eleventh Circuit approved the district court's invocation of the All Writs Act to enjoin agency action pending further administrative review in order to preserve the status quo. The plaintiff was required to meet the requirements for the issuance of a preliminary injunction.

In Simmons v. Block,75 the Eleventh Circuit fashioned an equitable remedy involving readvertising and rebidding, because the agency totally failed to follow its own procedures in disposing of surplus property.

76

In Lyng v. Payne, the U.S. Supreme Court reversed the judgment of the Eleventh Circuit, which had held that the Department of Agriculture had violated its own regulations concerning public notice of the availability of disaster loan relief. The appellate court had ordered the USDA to reopen the loan program, notwithstanding the passage of a number of years since its availability. The Supreme Court did not explicitly rule on the propriety of that remedy under 5 U.S.C. § 706, since it reversed the lower court on the merits, finding no violation of regulatory or statutory notice requirements by the agency. In dictum, however, Lyng reinforces the notion that a reviewing court has broad authority to correct agency error; unfortunately plaintiff had failed to show that the agency had erred in this case. In passing, the Court noted that a complainant under the APA must show that (1) the agency issuance has "binding force"; (2) the agency action is inconsistent with the intent of Congress; and (3) the complainant has standing."

VI. Conclusion

One of the obstacles to understanding the nature of an APA action is that courts often do not articulate clearly the theoretical basis for the decisions that they reach. Older cases in particular tend to be very ambiguous on the nature of the right to be enforced against an agency or the source of the remedy. This article has attempted to identify some principles from the developing body of administrative procedure law for use, at least in an analytical way, by litigators against federal agencies. In some courts, advocates may be able to get away with failing to identify clearly the nature of their actions, but the authors believe that advocates should at least think their claims through in advance and be able to articulate the basis of the claim and the reason the client is entitled to relief. Advocates are encouraged to research further the issues discussed in this article in their own circuits, since the state of the law is constantly changing.

73. Curry, 738 F.2d 1556; Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C. Cir. 1983).

74. VNA of Greater Tift County v. Schweiker, 711 F.2d 1020 (11th Cir.), reh'g denied, 718 F.2d 1115 (11th Cir. 1983), cert. denied sub nom. VNA of Greater Tift County v. Heckler, 466 U.S. 936 (1984).

75. Simmons v. Block, 782 F.2d 1545 (11th Cir. 1986). 76. Lyng v. Payne, 106 S. Ct. 2333 (1986).

77. Cf. the elements outlined in Japan Whaling, 106 S. Ct. 2860, discussed at the beginning of this article. highlights