Three-branch monte

Notre Dame Law Review

Volumn 72, Issue 1, 1996, Pages 157-189

  Bhagwat, Ashutosh ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 26444563508     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (174)

1. 470 U.S. 821 (1985).
2. Ch. 324, 60 Stat. 237 (codified as amended in scattered sections of 5 U.S.C.).
3. 5 U.S.C. § 701(a)(2) (1994).
4. For a discussion of the lack of separation of powers within agencies, and some of its problematic implications, see John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency RuUs, 96 COLUM. L. REV. 612, 631-34, 654-60 (1996).
5. See, e.g., Kenneth C. Davis, No Law to Apply, 25 SAN DIEGO L. REV. 1 (1988);
6. Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 MINN. L. REV. 689 (1990);
7. Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. CHI. L. REV. 653 (1985);
8. The Supreme Court, 1984 Term, Leading Cases, 99 HARV. L. REV. 120, 264 (1985 Part III);
9. Donald M. Levy & Delora Jean Duncan, Note, Judicial Review of Administrative Rulemaking and Enforcement Discretion: The Effect of a Presumption of Unreviewability, 55 GEO. WASH. L. REV. 596 (1987);
10. Sharon Werner, Note, The Impact of Heckler v. Chaney on Judicial Review of Agency Decisions, 86 COLUM. L. REV. 1247 (1986).
11. Chaney, 470 U.S. at 824-25.
12. Id. at 825-27 (citing Chaney v. Heckler, 718 F.2d 1174 (D.C. Cir. 1983), rev'd 470 U.S. 821 (1985)). Then-Judge Scalia dissented from the panel's opinion.
13. Justice Rehnquist's opinion was joined by every member of the Court except Justice Marshall, who filed an opinion concurring in the judgment Chaney, 470 U.S. at 840-55. Justice Brennan also filed a concurring opinion, though he joined the opinion of the Court. Id. at 838-39.
14. 5 U.S.C. § 701 (a) (2).
15. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).
16. Chaney, 470 U.S. at 830 (quoting Overton Park, 401 U.S. at 410).
17. Chaney, 470 U.S. at 832.
18. Id. at 833. Congressional authority to override the nonreview presumption would, of course, not exist if the Chaney holding had been based on constitutional principles.
19. Id. at 836.
20. Id. at 833 n.4.
21. 387 U.S. 136 (1967); see also Martinez v. Lamagno, 115 S. Ct. 2227, 2231 (1995).
22. See 5 U.S.C. § 551 (13) (1994); Levy & Duncan, supra note 5, at 624-25; see also 5 U.S.C. § 706 (1994) (permitting reviewing court to "compel agency action unlawfully withheld"); 5 U.S.C. § 702 (1994) (authorizing review if agency officer "failed to act").
23. See, e.g., New York State Dept. of Law v. FCC, 984 F.2d 1209, 1214-17 (D.C. Cir. 1993); Coker v. Sullivan, 902 F.2d 84, 88-90 (D.C. Cir. 1990); Safe Energy Coalition v. NRC, 866 F.2d 1473, 1476-80 (D.C. Cir. 1989); Board of Trade v. SEC, 883 F.2d 525, 530-31 (7th Cir. 1989); Arnow v. NRC, 868 F.2d 223 (7th Cir. 1989); Massachusetts Pub. Interest Research Group v. NRC, 852 F.2d 9 (1st Cir. 1988); Salvador v. Bennett, 800 F.2d 97 (7th Cir. 1986); Schering Corp. v. Heckler, 779 F.2d 683 (D.C. Cir. 1985); Levin, supra note 5, at 753 n.321 (listing cases); cf. NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 130 (1987) (finding informal settlement by NLRB General Counsel unreviewable because it is "prosecution," not "adjudication").
24. Davis, supra note 5, at 7; see also id. at 2.
25. See California Human Dev. Corp. v. Brock, 762 F.2d 1044, 1052-53 (D.C. Cir. 1985) (Scalia, J., concurring); Falkowski v. EEOC, 764 F.2d 907, 911 (D.C. Cir. 1985). See generally Levy & Duncan, supra note 5, at 615-17; Werner, supra note 5, at 1257-58 (criticizing such a broad reading of Chaney). As the following discussion indicates, no such broad reading of Chaney appears to have in fact taken hold.
26. See National Treasury Employees Union v. Horner, 854 F.2d 490, 496-97 (D.C. Cir. 1988); MCI Telecomms. Corp. v. FCC, 765 F.2d 1186, 1190-91 n.4 (D.C. Cir. 1985).
27. See generally infra notes 96-99 and accompanying text.
28. The key existing precedent was WWHT, Inc. v. FCC, 656 F.2d 807 (D.C. Cir. 1981).
29. American Horse Protection Ass'n v. Lyng, 812 F.2d 1 (D.C. Cir. 1987) (AHPA); see also National Customs Brokers & Forwarders Ass'n v. United States, 883 F.2d 93, 96-97 (D.C. Cir. 1989); Farmworkers Justice Fund, Inc. v. Brock, 811 F.2d 613, 635-37 (D.C. Cir.) (Williams, J., dissenting), vacated as moot 817 F.2d 890 (D.C. Cir. 1987); cf. Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 655 (7th Cir. 1986) (Posner, J.) (suggesting in dictum that nonpromulgation is unreviewable under Chaney).
30. Levin, supra note 5, at 764-67. First, the explanation requirement of § 555 (e) applies equally to nonpromulgation and nonenforcement decisions. In addition, it is far from clear that nonpromulgation decisions are generally more "legal" than nonenforcement decisions - and in any event it is not clear why this reasoning supports a categorical rule of review or nonreview, since one could as easily limit review to situations where an agency gives legal reasons for a non-promulgation decision (or for that matter, a nonenforcement decision). Finally, it is not clear why deferential review is more plausible for nonpromulgation than for nonenforcement. The AHPA decision is thus probably best understood as evidencing the general resistance of the D.C. Circuit, and the lower courts in general, to the underlying themes of the Chaney decision. Indeed, as discussed below in detail, all of the reasons given by Judge Williams for reviewing non-promulgation decisions seem to apply with equal strength to at least some types of nonenforcement decisions. See infra Part II.
31. See National Treasury Employees Union v. Horner, 854 F.2d 490, 496-97 (D.C. Cir. 1988); see also Dickson v. Secretary of Defense, 68 F.3d 1396, 1403-04 & n.10 (D.C. Cir. 1995) (rejecting application of Chaney to Army Board for Correction of Military Records's decision refusing to waive a limitations period); Cardozo v. CFTC, 768 F.2d 1542, 1547-51 (7th Cir. 1985) (declining to extend Chaney to decision by CFTC declining to review disciplinary action conducted by Chicago Board of Trade). These and similar decisions seem to represent a clear rejection of the early movement towards extending Chaney to all agency decisions involving resource allocation. See supra note 20 and accompanying text.
32. Thus, when an agency conducts a proceeding to determine whether to pursue a particular violation, and then decides to do nothing, courts have reviewed the final agency order - even though in form the order is nothing more than a decision not to enforce. See Levin, supra note 5, at 769-70 & n.406 (citing cases). The underlying principle of these cases, that so-called "negative orders" are reviewable in the same way as agency orders taking positive legal action, has been well-established since Justice Frankfurter's pathbreaking opinion in Rochester Tel. Corp. v. United States, 307 U.S. 125 (1943); so it is unsurprising that Chaney did not alter this result. However, this distinction - between nonenforcement and negative orders - is obviously a difficult one to maintain. See New York State Dept of Law v. FCC, 984 F.2d 1209, 1214-17 (D.C. Cir. 1993) (court applies Chaney to preclude review of an agency decision to settle an enforcement action, while acknowledging that a decision declining to invalidate a tariff following a full investigation would be reviewable). Courts have also continued after Chaney to review claims that an agency has unreasonably delayed action in an ongoing proceeding, again despite the obvious facial similarity to a nonenforcement decision. Levin, supra note 5, at 770-73. Finally, courts have struggled with, and have occasionally continued to review, decisions to dismiss ongoing enforcement proceedings before completion. Id. at 773-75 (arguing that "no consistent judicial response" has emerged to such cases); see id. at 774 n.436 (citing cases granting review). But see NLRB v. Food & Commercial Workers, 484 U.S. 112, 123 (1987); Cuyohoga Valley Railway v. United Transp. Union, 474 U.S. 3 (1985) (per curiam); New York State Dep't of Law, 984 F.2d at 1214-17; Schering Corp. v. Heckler, 779 F.2d 683 (D.C. Cir. 1985) (all denying review).
33. See, e.g., Doyle v. Brock, 821 F.2d 778 (D.C. Cir. 1987); Shelley v. Brock, 793 F.2d 1368, 1372-74 (D.C. Cir. 1986) (both following Supreme Court decision in Dunlop v. Bachowski, 421 U.S. 560 (1975) - which was distinguished in Chaney - and reviewing Secretary of Labor's refusal to sue to set aside union elections under Labor Management Reporting and Disclosure Act); Democratic Congressional Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987).
34. Chaney, 470 U.S. at 836.
35. See Clifford v. Peña, 77 F.3d 1414, 1417 (D.C. Cir. 1996); Arnow v. United States Nuclear Regulation Comm'n, 868 F.2d 223 (7th Cir. 1989); Safe Energy Coalition v. United States Nuclear Regulatory Comm'n, 866 F.2d 1473, 1476-80 (D.C. Cir. 1989); Massachusetts Pub. Interest Research Group v. United States Nuclear Research Comm'n, 852 F.2d 9 (1st Cir. 1988); Center for Auto Safety v. Dole, 828 F.2d 799, 803-09 (D.C. Cir. 1987), rev'd on other grounds on reh'g 846 F.2d 1532 (D.C. Cir. 1988) (per curiam) (on rehearing, court reaffirmed that agency regulations could rebut Chaney presumption, but found presumption not rebutted by NHTSA regulations at issue); Greater Los Angeles Council on Deafness v. Baldridge, 827 F.2d 1353, 1360-62 (9th Cir. 1987).
36. See, e.g., Northern Indiana Public Service Co. v. Federal Energy Regulatory Comm'n, 782 F.2d 730, 745-46 (7th Cir. 1986). This exception has its origin in the D.C. Circuit's decision in Adams v. Richardson, 480 F.2d 1159, 1161-63 (D.C. Cir. 1973) (en banc) (per curiam) (reviewing HEW failure to enforce Title VI).
37. See, e.g., Montana Air Chapter No. 29 v. Federal Labor Relations Auth., 898 F.2d 753 (9th Cir. 1990).
38. 783 F.2d 237 (D.C. Cir. 1986), overruled by Crowley Caribbean Transp. v. Peña, 37 F.3d 671 (D.C. Cir. 1994).
39. International Union, 783 F.2d at 246.
40. 980 F.2d 765, 772-74 (D.C. Cir. 1992).
41. 996 F.2d 326, 333 (D.C. Cir. 1993).
42. See, e.g., Montana Air Chapter No. 29 v. Federal Labor Relations Auth., 898 F.2d 753 (9th Cir. 1990); Board of Trade v. Securities & Exch. Comm'n, 883 F.2d 525, 530-31 (7th Cir. 1989) (Easterbrook, J.); cf. Farmworkers Justice Fund, Inc. v. Brock, 811 F.2d 613, 619-23 (D.C. Cir. 1987), vacated as moot 817 F.2d 890 (D.C. Cir. 1987) (actions committed to agency discretion still reviewable for statutory violations); Assiniboine and Sioux Tribes v. Board of Oil and Gas, 792 F.2d 782, 791-92 (9th Cir. 1986) (same); Railway Labor Executives Ass'n v. Dole, 760 F.2d 1021, 1025 (9th Cir. 1985) (Schroeder, J., dissenting) (same). See generally Levin, supra note 5, at 777 & n.446 (listing cases permitting review of particular claims in face of Chaney presumption); id. at 746-50 (arguing in favor of a rule of "partial unreviewability," permitting review of legal challenges, but not discretionary decisions); Sunstein, supra note 5, at 658-59, 676-77 (suggesting that reviewability after Chaney must depend on the nature of the challenge to the agency decision, and the reasons for the agency's inaction).
43. 37 F.3d 671 (D.C. Cir. 1994).
44. The challenge to the agency action was brought by a competitor of the regulated entity seeking a waiver. The competitor sought to challenge the agency's conclusion, announced in the course of denying the requested waiver, that there was no statutory violation.
45. Crowley, 37 F.3d at 676 (citing Interstate Commerce Comm'n v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 282-83 (1987).
46. Crowley, 37 F.3d at 676. The court did note, however, that a general enforcement policy might be articulated in the course of announcing an individual nonenforcement decision, in which case such an agency statement might be reviewable. Id. at 677. This concession has significant implications, which will be discussed infra notes 97-101 and accompanying text.
47. See, e.g., Levin, supra note 5, at 746-50; Sunstein, supra note 5, at 658-59, 676-77.
48. 818 F.2d 943 (D.C. Cir. 1987).
49. See 5 U.S.C. § 553 (1994).
50. The Action Level at issue in CNI involved permissible levels of aflatoxins in corn.
51. Community Nutrition Inst., 818 F.2d at 945-46 (quoting 5 U.S.C. § 553(b) (3) (A) (1994)).
52. See Shalala v. Guernsey Memorial Hospital, 115 S. Ct. 1232, 1239 (1995); Hoctor v. USDA, 82 F.3d 165 (7th Cir. 1996) (Posner, J.).
53. Community Nutrition Inst., 818 F.2d at 946 (quoting American Bus Ass'n v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980)).
54. Id. at 948 (citing 21 U.S.C. § 342(a)(1) (1994)).
55. The actual history, and eventual disposition, of the CNI litigation was even more convoluted than this description suggests. When the aflatoxin Action Level was originally appealed to the D.C. Circuit, the court had set it aside on the grounds that the FDA could not proceed through informal Action Levels, but rather had been required by Congress to issue formal rules, called tolerances. Community Nutrition Inst v. Young, 757 F.2d 354, 357-61 (D.C. Cir. 1985). The Supreme Court reversed, on Chevron grounds. Young v. Community Nutrition Inst., 476 U.S. 974 (1986). The decision discussed in the text was issued on remand. Ultimately, however, the FDA avoided the cumbersome Notice and Comment procedures required by the D.C. Circuit, by simply announcing that its Action Levels were not binding on anyone, including the agency. For a full discussion of the history of this litigation, see Richard M. Thomas, Prosecutorial Discretion and Agency Self-Regulation: CNI v. Young and the Aflatoxin Dance, 44 ADMIN. L. REV. 131, 144-54 (1992).
56. Thus the CNI court did not even cite Chaney in resolving the Notice and Comment issue, though it did invoke Chaney in a separate portion of its opinion, in which the court declined to review the FDA's granting of exemptions to its Action Levels. Community Nutrition Inst., 818 F.2d at 945-50.
57. See Lincoln v. Vigil, 113 S. Ct 2024 (1993) (distinguishing substantive review from Notice and Comment requirements).
58. Thomas, supra note 50, at 132-44.
59. Thomas relates this phenomenon to the general use of "hard look" review in APA rulemaking cases, under which a reviewing court, in deciding if an adopted rule is "arbitrary and capricious" under 5 U.S.C. § 706(2)(A) (1994), determines if the agency has meaningfully responded to all public comments, and has given a reasoned explanation for its decision. See Thomas, supra note 50, at 151 & nn.121, 122. For examples of "hard look" review, see Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29 (1983); Greater Boston Tel. Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970). For some academic criticisms of such review, see JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO SAFETY (1990);
60. Levin, supra note 5, at 690 n.2; Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1412 (1992);
61. Richard J. Pierce, Jr., Two Problems in Administrative Law: Political Polarity on the District of Columbia Circuit and Judicial Deterrence of Agency Rulemaking, 1988 DUKE L.J. 300;
62. Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 DUKE L.J. 1051, 1067-68 & n.65 (1995).
63. See, e.g., Alaska v. USDOT, 868 F.2d 441 (D.C. Cir. 1989); United States Tel. Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). The Alaska decision is particularly noteworthy because the author of that opinion, Judge Starr, dissented from the original CNI opinion, indicating the degree to which the doctrine of that case has gained acceptance in the D.C. Circuit.
64. 838 F.2d 1317 (D.C. Cir. 1988).
65. Id. at 1321-22. This focus on actual agency behavior seems to have become an established part of the law in this area. See, e.g., United States Tel. Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994).
66. For an example of a previous, more permissive view, see Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir. 1986) (Scalia, J.). For a complete and incisive discussion of the misuse by agencies of nonlegislative rules, see Robert Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like - Should Federal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311 (1992);
67. see also Michael Asimow, Nonlegislative Rulemaking and Regulatory Reform, 1985 DUKE L.J. 381 (arguing against imposition of Notice and Comment requirements on nonlegislative rules).
68. See U.S.C. § 551(4) (1994); supra note 22 and accompanying text. Of course, it is always possible that an agency will announce a general policy in the course of an individual nonenforcement decision, such as occurred in New York City Employees' Retirement Sys. v. SEC, 45 F.3d 7, 11-14 (2d Cir. 1995) (NYCER), in which case difficult questions of categorization are raised. Note that the distinction between enforcement policy and individual nonenforcement decisions was also relied upon by Judge Williams in Crowley, to limit the scope of the "legal issues" exception to Chaney. See supra notes 38-42 and accompanying text.
69. Thus in NYCER, 45 F.3d at 12, the Second Circuit held that an SEC no-action letter, in which the SEC announced a "new interpretation" of a long-standing rule regarding corporate obligations to include shareholder proposals in proxy materials, was not subject to Notice and Comment requirements because the SEC statement was merely an "interpretive rule." The court relied heavily on the fact that a no-action letter "binds no one." Id. at 12. Under the pragmatic approach to the "binding" character of agency statements announced in CNI and McLouth, however, one suspects the case would be decided differently. It should be noted that SEC no-action letters have been held to be substantively unreviewable under Chaney. See, e.g., Board of Trade of City of Chicago v. SEC, 883 F.2d 525, 530-31 (7th Cir. 1989).
70. In this context, it is noteworthy that Judge Bork was on the original panel that decided International Union v. Brock, 783 F.2d 237 (D.C. Cir. 1986) (creating the "legal issues" exception to Chaney); and Judge Williams authored the opinion declining to extend Chaney to nonpromulgation of rules. Neither is known as a particular supporter of broad-ranging judicial authority.
71. See generally Title II of the Communications Act of 1934, 47 U.S.C. §§ 201-229 (1994).
72. See 47 U.S.C. § 203 (1994).
73. See In re Policy and Rules Concerning Rates for Competitive Common Carrier Services and Facilities Authorizations Thereof, 95 F.C.C.2d 554 (1983) (Fourth Report and Order).
74. See Policy and Rules Concerning Rates for Competitive Common Carrier Services and Facilities Authorizations Thereof, 99 F.C.C.2d 1020 (1985) (Sixth Report and Order).
75. MCI Telecomms. Corp. v. FCC, 765 F.2d 1186 (D.C. Cir. 1985).
76. See id. at 1190-91 n.4; see also AT&T v. FCC, 978 F.2d 727, 730 (D.C. Cir. 1992).
77. It should be remembered that at this time, prior to its decisions in Edison Electric Institute and Crowley, the D.C. Circuit understood the Chaney doctrine to apply to enforcement policies. See supra notes 21-22 and accompanying text.
78. 47 U.S.C. § 208 (1994) (as amended by Telecommunications Act of 1996, 47 U.S.C.A. § 208 (West Supp. 1996)).
79. See AT&T v. FCC, 978 F.2d 727, 730 (D.C. Cir. 1992). For a description of the events leading up to this appeal, see id. at 730-31.
80. Id. at 731-32.
81. Id. at 735. The FCC of course had to take this position, in order to argue even plausibly that MCI's conduct was immune from a private challenge brought under the Communications Act.
82. Id. at 735-36. The D.C. Circuit's interpretation of the Communications Act, and its conclusion that permissive detariffing violated the Act, were confirmed by the Supreme Court in MCI Telecomms. Corp. v. AT&T, 114 S. Ct. 2223 (1994). In § 401 of the Telecommunications Act of 1996, Pub. L. No. 104-104, § 401, 110 Stat. 56, 128-29 (1996), however, Congress appears to have granted the FCC explicit forbearance authority, effectively overruling the holding of MCI v. AT&T. Finally, in the interest of full disclosure, I should mention that while I was not involved in any of the litigation described in this article, I did in a prior incarnation participate in some of the aftermath of the AT&T v. FCC litigation, on behalf of AT&T.
83. It should be noted that § 208, the Communications Act's private right of action, seems to be designed not for the benefit of regulated entities such as AT&T, but rather for aggrieved customers of regulated carriers, the theoretical statutory beneficiaries. The language of the provision, however, is broad enough to encompass AT&T's claim.
84. It could be argued that Congress's failure to include a private cause of action in a regulatory statute evinces an intent to shield certain types of policies from judicial review - but this is most implausible. The policy considerations governing whether to subject regulated entities to private suits for damages are quite different from the considerations relevant to whether the regulating agency's policies should be entirely immune from judicial review. See generally Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 HARV. L. REV. 1193 (1982) (discussing relationship between private right to initiate administrative enforcement and private right of action against regulated entities).
85. 5 U.S.C. § 553 (1994).
86. See supra notes 43-50, 56-58 and accompanying text.
87. Thomas, supra note 50, at 133-34, 148. Thomas, unlike me, sees this as an unfortunate development because of his lack of confidence in the efficacy of judicial review.
88. See supra note 52 and accompanying text (citing Lincoln v. Vigil, 113 S. Ct. 2024, 2033-34 (1993)).
89. See supra note 54 (citing numerous modern critiques of the efficacy of judicial review of agency rulemaking).
90. Cass Sunstein has made two important points in this regard - first, that the presumption of judicial review under the APA is a logical response to the lack of separation-of-powers or electoral checks on administrative agencies, and generally to the questionable constitutional status of agencies; and second, that the very existence of review can act as a check on agency arbitrariness and lawlessness, even if actual error correction by reviewing judges is spotty and flawed. See Sunstein, supra note 5, at 655-56. A full defense of judicial review, however, is simply beyond the scope of this article.
91. See, e.g., Asimow, supra note 58, at 403-04. Asimow concludes that the costs of imposing full Notice and Comment requirements on nonlegislative rulemaking, such as formulation of enforcement policy, clearly exceed the benefits. See id. at 404-09.
92. 5 U.S.C. § 553(b) (3) (A) (1994). Nonlegislative rules include "general statements of policy" and "interpretive rules," with enforcement policies generally falling within the former rubric.
93. See Asimow, supra note 58, at 404-09; Thomas, supra note 50, at 152-53, 155-57. Of course, agencies always have some incentive to publish enforcement policies, since publication permits agencies to more easily communicate to the regulated community its policies and legal interpretations, and to discipline employees for failing to conform to the agency's enforcement policy. Also, enforcement policies might be published with some hope of influencing judicial decisions, perhaps by triggering Chevron deference. See infra notes 107-08 and accompanying text. But if large costs become associated with publication; it is predictable that fewer, perhaps substantially fewer, agencies will find publication of enforcement policies worthwhile on balance.
94. See Asimow, supra note 58, at 387-88 & nn.35-38 (citing numerous legal and social sciences authorities supporting these propositions).
95. The current D.C. Circuit case law interpreting § 553's exceptions to Notice and Comment requirements and applying the CNI doctrine in fact magnifies this problem by making the availability of the policy statement exception depend on whether the agency in fact treats its policy statement as binding, and whether it uses mandatory language in its statement. See supra notes 56-58 and accompanying text. The result, of course, is to encourage agencies to use vague language in their policy statements, or otherwise to depart regularly from their stated policies, thereby sacrificing the benefits of certainty. See Professionals and Patients for Customized Care v. Shalala, 56 F.3d 592 (5th Cir. 1995) (finding an FDA Compliance Manual not subject to Notice and Comment on such grounds); Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir. 1986); Anthony, supra note 58, at 1318-19; Thomas, supra note 50, at 152-53. The denouement of the CNI litigation illustrates this problem perfectly, see supra note 9, as does the Second Circuit's decision in New York City Employees' Retirement Sys. v. SEC, 45 F.3d 7 (2d Cir. 1995), which also seems to reward agency arbitrariness.
96. 783 F.2d 237 (D.C. Cir. 1986), overruled by Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671 (D.C. Cir. 1994). See supra notes 33-37 and accompanying text.
97. See International Union, UAW, 783 F.2d at 246.
98. Crowley, 37 F.3d at 676-77.
99. The FCC's detariffing policy is one example of this type of judgment. In addition, the Federal Trade Commission, in its previous enforcement policies, apparently took such an approach towards efficiency-producing horizontal mergers, stating that even though such a merger might violate § 7 of the Clayton Act (because it considered efficiencies irrelevant to the legal analysis under that provision), the FTC would consider efficiencies in making the "policy" judgment of whether to pursue enforcement. See Merger Guidelines, 4 Trade Reg. Rep. (CCH) ¶ 13,102, at 20,528 (June 14, 1982). I am grateful to Alan Meese for this example.
100. Crowley, 37 F.3d at 676 (citing ICC v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 283 (1987)).
101. Id. at 676. It should be noted that Crowley's suggestion that agency statements of enforcement policy are reviewable is in tension with previous opinions by the D.C. Circuit, including in the original MCI opinion's reference to permissive detariffing. See supra note 21; MCI Telecomms. Corp. v. FCC, 765 F.2d 1186, 1190-91 n.4 (D.C. Cir. 1985); see also National Treasury Employees Union v. Horner, 854 F.2d 490, 496-97 (D.C. Cir. 1988).
102. Crowley, 37 F.3d at 677.
103. It should be noted, however, that even if the broader reading of Crowley does prevail, and it does provide a fairly effective solution to the problems created by the Chaney doctrine, there is no guarantee that its holding would be adopted by circuits other than the D.C. Circuit, or that it would be ultimately upheld by the Supreme Court as consistent with Chaney.
104. See Crowley, 37 F.3d at 676 (stating that enforcement policies are reviewable for "legal sufficiency"). The roots of Crowley in the "legal issues" exception to Chaney also suggest this limitation on the scope of review.
105. Again, the FTC's prior policy towards efficiency-producing mergers would appear to illustrate such a situation. See supra note 90.
106. Compare Levin, supra note 5, at 765 & n.390 (making a similar point about nonpromulgation of rules versus individual nonenforcement decisions). As the following discussion indicates, Crowley itself and the Second Circuit's NYCER decision provide examples of situations where an agency faced and resolved an important legal issue in the course of an individual nonenforcement decision.
107. New York City Employees' Retirement Sys. v. SEC, 45 F.3d 7 (2d Cir. 1995). See supra note 59.
108. Crowley, 37 F.3d at 677.
109. In fact, an agency could conceivably formulate and communicate an enforcement policy purely through a pattern of enforcement, without any actual statements whatsoever, whether formal or informal. Perhaps not as quickly or effectively, but it could be done. An example of this phenomenon might be the enforcement of the (former) 55 m.p.h. speed limit on highways, especially in western states. The 55 m.p.h. rule simply was not enforced in many states, and certainly not in California. Police tended to set their detecting instruments, and stop violators, at a significantly higher speed - anecdotal evidence suggests it was around 65 m.p.h. This policy was never stated, but it was easily observable over time, and clearly had been so observed by drivers. Therefore, the effective speed limit on highways in these states was not 55 m.p.h., as even the briefest excursion onto a California freeway demonstrated. This type of unstated pattern of underenforcement can be contrasted with the stated policy of underenforcement in, for example, the State of Montana. See MONT. CODE ANN. §§ 61-8-718, 61-11-103 (1995) (establishing $5 fine for violation of federally mandated speed limit, and prohibiting any record to be kept of same).
110. See NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974); SEC v. Chenery Corp., 332 U.S. 194 (1947).
111. International Union, UAW v. Brock, 783 F.2d 237, 246 (D.C. Cir. 1986).
112. The difficulty of distinguishing enforcement policies from substantive rules is well illustrated by the D.C. Circuit's recent decision in Arent v. Shalala, 70 F.3d 610, 614 (D.C. Cir. 1995), in which the court rejected the FDA's argument that its promulgation of a standard for "substantial compliance" under the Nutrition Labeling and Education Act constituted an enforcement action, unreviewable under Chaney, but did not give any explanation for this conclusion.
113. Private rights of action are, of course, not the only means through which private parties can "enforce" rules of conduct. For example, violation of such rules can sometimes arise as a defense to a common-law claim, such as a contract action. See, e.g., Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982) (permitting defense in contract action based on alleged violation of antitrust laws). In addition, the "filed-rate doctrine" permits regulated firms to collect fees based on rates filed in tariffs, even in the face of contrary contractual agreement, thereby indirectly enforcing the statutory requirement of charging only filed rates - though perversely, the enforcement in this instance is by the regulated entity who has originally violated the relevant rule. See Maislin Indus. v. Primary Steel, 497 U.S. 116 (1990). The arguments made in the text apply to some degree to these situations as well, but I am primarily concerned with private rights of action here, because they provide the most consistent and dependable means for private parties to enforce rules. The other avenues available tend to be subject to special factual predicates which are often beyond the control of those who are injured by violations.
114. Stewart & Sunstein, supra note 75, at 1215-16 & n.83, suggest that courts may draw just such a distinction; see also NYCER, 45 F.3d at 14 (denying substantive review of SEC no-action letter because of the availability of a private cause of action). I discuss the possibility of such a limit on a right to judicial review infra, at notes 158-59 and accompanying text.
115. See Sunstein, supra note 5, at 671-72. It should be noted that in the case of malum in se offenses, some independent "enforcement" might be created through the moral weight of the community as well, rather than through legal processes alone, suggesting that for malum in se offenses review of enforcement policies is less needed. On the other hand, malum in se offenses tend to be more socially harmful than malum prohibitum offenses, suggesting that review of enforcement policy is more needed here. And in any event, most regulatory offenses tend to be malum prohibitum rather than malum in se.
116. But see Kelly v. EPA, 15 F.3d 1100, 1107-09 (D.C. Cir. 1994) cert. denied, 115 S. Ct. 900 (1995) (holding that courts should not grant Chevron deference to agency interpretations while resolving suits brought pursuant to a private right of action). See generally Richard J. Pierce, Jr., Agency Authority to Define the Scope of Private Rights of Action, 48 ADMIN. L REV. 1 (1996) (arguing that Kelly is wrongly decided, and that courts should defer to reasonable agency interpretations even when resolving private lawsuits).
117. See Reno v. Korey, 115 S. Ct. 2021, 2026-27 (1995) (granting deference to internal agency guideline because it is "akin" to an interpretive rule); Batterton v. Francis, 432 U.S. 416, 424-26 & n.9 (1977) (pre-Chevron case suggesting a limit on deference); Elizabeth Blackwell Health Ctr. for Women v. Knoll, 61 F.3d 170, 181-82 (3rd Cir. 1995) cert. denied, 116 S. Ct. 816 (1996) (granting Chevron deference to interpretive rule, even though the rule is not subject to Notice and Comment procedures); Community Nutrition Inst. v. Young, 818 F.2d 943, 953 (D.C. Circuit 1987) (Starr, J., dissenting) (suggesting that Chevron deference would be due to nonlegislative rules in subsequent enforcement proceedings); Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and Courts?, 7 YALE J. ON REG. 1, 55-60 (1990);
118. Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 973 & nn.13-14, 987 (1992).
119. Chaney, 470 U.S. at 832.
120. See 5 U.S.C. § 551(13) (1994) (defining agency action to include a "failure to act"); id. at § 706 (permitting review of "agency action unlawfully withheld"); id. at § 702 (authorizing review if agency officer "failed to act").
121. It is in fact possible to read the Chaney opinion as establishing just such a rule, especially in light of the numerous exceptions to the principle of nonreviewability recognized in Chaney itself. See Chaney, 470 U.S. at 833-36.
122. See Sunstein, supra note 5, at 666-69 (citing Lochner v. New York, 198 U.S. 45 (1905)).
123. See Anthony, supra note 58, at 1329, 1339-40.
124. See also Chaney, 470 U.S. at 851 (Marshall, J., concurring in the judgment); Peter H.A. Lehner, Note, Judicial Review of Administrative Inaction, 83 COLUM. L. REV. 627 (1983); Levy & Duncan, supra note 5, at 623-30.
125. See supra note 12 and accompanying text.
126. Examples include the FCC's regulation of the telecommunications industry, and increasingly of the cable industry; the SEC's regulation of the securities industry; the Federal Reserve's regulation of the banking industry; the FDA's regulation of the pharmaceutical industry; the NRC's regulation of the nuclear power industry; and countless others.
127. This was AT&T's complaint in the litigation over the FCC's permissive detariffing policy - that the FCC's selective enforcement of tariffing rules against only AT&T placed AT&T at a serious competitive disadvantage. See AT&T v. FCC, 978 F.2d 727, 730 (D.C. Cir. 1992).
128. Chaney, 470 U.S. at 832.
129. See Linda R.S. v. Richard D., 410 U.S. 614 (1973).
130. See Wayte v. United States, 470 U.S. 598 (1985). It is noteworthy that Wayte was decided the day before Chaney.
131. Of course, within agencies these functions might be delegated and divided up among different personnel, such as ALJs, an Enforcement Division or General Counsel, and other staff; but ultimate authority over these functions generally remains with the Commission or agency head in whom Congress has invested the agency's powers.
132. Indeed, the lack of separation-of-powers checks on agencies provides one of the strongest arguments in favor of broad, searching judicial review of all forms of agency action. It seems a matter of common sense that because in the administrative state traditional constraints on abuse of power by governmental actors have been removed, something must take their place - and judicial review appears to be the only plausible candidate for this role. See Sunstein, supra note 5, at 655-56. There are, of course, some electoral checks on agency abuse of power, but I would argue (recognizing that this is a controversial proposition) that in the context of the huge modern executive branch, in which only the President is elected, the extent to which agencies are actually politically answerable is quite limited. Compare Sunstein, supra note 5, at 655-56 (arguing that lack of electoral checks on agencies supports judicial review) with Thomas, supra note 50, at 140 & n.66 (citing Antonin Scalia, Rulemaking as Politics, 34 ADMIN. L. REV. v (1982)) (linking modern academic defense of administrative autonomy to the political answerability of agencies).
133. An argument can be made that even criminal prosecutorial discretion is based historically on the availability of private prosecutions, a premise which of course no longer holds. See Chaney, 470 U.S. at 849 n.6 (citing John Langbein, Controlling Prosecutorial Discretion in Germany, 41 U. CHI. L. REV. 439, 443-46 (1974)).
134. The wisdom of permitting broad prosecutorial discretion in the criminal context is, however, beyond the scope of this article. See generally KENNETH C. DAVIS, DISCRETIONARY JUSTICE 188-214 (1969).
135. This suggests in turn that when an administrative scheme does contain an independent prosecutorial authority, as is the case for example with the NLRB General Counsel's authority to enforce the NLRA, see 29 U.S.C. § 153(d) (1994), or with the Secretary of Labor's authority to enforce OSHA, see 29 U.S.C. § 659 (1994), the arguments in favor of judicial review presented in this article are less compelling. See Levin, supra note 5, at 773-74. I will not pursue this point further than to acknowledge that in those relatively rare cases, application of the Chaney doctrine is less problematic.
136. See, e.g., Lehner, supra note 114, at 638; Levin, supra note 5, at 715-16; Stewart & Sunstein, supra note 75, at 1283-84; Sunstein, supra note 5, at 672-73.
137. See Chaney, 470 U.S. at 831-32.
138. Cf. Doyle v. Brock, 821 F.2d 778, 788 (D.C. Cir. 1987) (Silberman, J., dissenting).
139. For an excellent discussion of the agency "duty to explain" and its role in current administrative law, see Gary Larson, Outcome, Procedure and Process: Agency Duties of Explanation for Legal Conclusions, 48 RUTGERS L. REV. 313 (1996). See generally BERNARD SCHWARTZ, ADMINISTRATIVE LAW §§ 7.30, 10.4 (1991); 5 U.S.C. § 555(e) (1994).
140. 318 U.S. 80, 94 (1943). For a description of the development of this principle in early administrative law, and its application in a related context, see Levin, supra note 5, at 722 & n. 109.
141. For examples of cases applying the statement-of-reasons approach to review of nonenforcement decisions, see Dunlop v. Bachowski, 421 U.S. 560, 571-72 (1975); Democratic Congressional Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987); Shelley v. Brock, 793 F.2d 1368, 1372-74 (D.C. Cir. 1986).
142. See supra note 54; Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970).
143. For a discussion of the capacity of such methods of judicial review to avoid "usurpation" of agency prerogatives, see Sunstein, supra note 5, at 671 & nn.109-11; id. at 668 n.99. There is, of course, always some danger that reviewing courts will improperly seize such powers, and permit judicial policy preferences to outweigh informed choices made by agencies. But that danger does not seem any more present with respect to nonenforcement decisions than with any other variety of agency action, suggesting that this criticism is more an attack on the enure institution of judicial review than on review in any particular context. As stated supra note 81, beyond noting that there are good institutional reasons for its preservation, a broad defense of judicial review is beyond the scope of this article.
144. Hearings before a Subcommittee of the Committee on the Judiciary of the United States Senate on S.674, S.675 and S.918, 77th Cong. 338 (1941) (statement of Commissioner Healy); see also Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 935 F.2d 1501, 1506 (7th Cir. 1991) (Posner, J.) ("[W]riting disciplines thought. We should not create disincentives to" the creation of written explanations.).
145. See supra Part II.
146. See supra notes 130-31 and accompanying text. A difficult question would arise if an agency ignored judicial commands, or repeatedly presented inadequate reasons for a refusal to act, and a reviewing court felt obliged to order action. The Court in Dunlop acknowledged this problem, but declined to address it, preferring to believe the situation was unlikely to occur. Dunlop, 421 U.S. at 575-76 & n.12. My own inclination is to think that the separation-of-powers concerns raised regarding a court ordering an agency to commence enforcement proceedings are somewhat artificial, in light of all the other departures from separation-of-powers principles in an agency's day-to-day operation. But like the Court, I am inclined to think the situation is unlikely to arise very frequently.
147. See supra notes 85-86 and accompanying text.
148. See supra note 100.
149. See supra notes 99-101 and accompanying text.
150. See 5 U.S.C. § 706(2) (A) (1994).
151. For an example of a court engaging in such searching review in a nonenforcement context, see Doyle v. Brock, 821 F.2d 778 (D.C. Cir. 1987). For an early instance of such an approach, see Medical Committee for Human Rights v. SEC, 432 F.2d 659, 673-76 (D.C. Cir. 1970), vacating as moot 404 U.S. 403 (1972).
152. See 5 U.S.C. § 706 (1994) (setting forth various standards to be applied in judicial review of agency action).
153. See Chaney, 470 U.S. at 831-32.
154. See Sunstein, supra note 5, at 658-59. The "committed to agency discretion" language of the APA itself also supports such a limitation, since it seems clear that agencies never have discretion to act for some reasons, such as racial or religious animus.
155. See Levin, supra note 5, at 700-02 (discussing Sunstein's understanding of reviewability, and pointing out that the Supreme Court, in cases like Webster v. Doe, 486 U.S. 592 (1988), has implicitly recognized that some claims are almost always reviewable); see also id. at 746-50 (reciting benefits of a regime of partial reviewability); Board of Trade v. SEC, 883 F.2d 525, 530-31 (7th Cir. 1989) (Easterbrook, J.) (endorsing view that otherwise unreviewable decision may be reviewable for certain types of challenges).
156. See Levin, supra note 5, at 750 (advancing such a position, and suggesting that the Supreme Court may have adopted such an approach in Dunlop v. Bachowski, 421 U.S. 560 (1975), a predecessor to Chaney which was distinguished in the latter decision).
157. See supra note 91 and accompanying text (citing ICC v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 283 (1987)).
158. See Levin, supra note 5, at 723-24; see also id. at 705-06 (criticizing Court's general interpretation of 5 U.S.C. § 701 (a) (2) as confusing reviewability with legality).
159. 5 U.S.C. § 701 (a) (emphasis added). The legislative history of the APA, insofar as it bears on this issue, also seems to reject the Court's view that discretionary agency decisions are entirely immunized from judicial review. See H.R. REP. No. 79-1980 (1946), reprinted in ADMINISTRATIVE PROCEDURE ACT - LEGISLATIVE HISTORY, 79th Cong., 1944-46, at 275 (1946) ("the existence of discretion does not prevent a person from bringing a review action but merely prevents him pro tanto from prevailing therein"); id. at 310-11 (Proceedings from the Congressional Record on March 12, 1946: colloquy between Senators McCarran and Donnell in which Senator McCarran agrees that the "mere fact that a statute may vest discretion in an agency" does not preclude review); id. at 368-69 (Proceedings from the Congressional Record on May 24,1946: statement of Representative Walter).
160. See Levin, supra note 5, at 723-24. If true, this argument suggests that Judge Williams's rejection in Crowley of the "legal issues" exception to Chaney may have been premature. See supra notes 37-40 and accompanying text.
161. See, e.g., Connecticut Dept. of Children & Youth Servs. v. Department of Health & Human Servs., 9 F.3d 981, 986 (D.C. Cir. 1993); International Union v. Dole, 869 F.2d 616, 621 (D.C. Cir. 1989); Cardozo v. Commodity Futures Trading Comm'n, 768 F.2d 1542 (7th Cir. 1985). The distinction drawn here between reviewability and the standard of review parallels Ronald Dworkin's distinction between two different views of discretion, one of which rests on a lack of control by others, and another which rests on a lack of clear controlling standards. See Ronald Dworkin The Model of Rules, 35 U. CHI. L. REV. 14 (1967).
162. Asimow, supra note 58, at 386 & n.28.
163. See 5 U.S.C. § 555(e); supra notes 128-32 and accompanying text.
164. It should be noted that the need for such flexibility argues sharply against imposing Notice and Comment or other procedural requirements on the issuance of enforcement guidelines. See supra note 82 and accompanying text.
165. See 5 U.S.C. § 704; Heckler v. Chaney, 470 U.S. 821, 832 (1985).
166. Chaney, 470 U.S. at 823.
167. Regarding the NRC's consideration of petitions to enforce, see Arnow v. United States Nuclear Regulatory Comm'n, 868 F.2d 223 (7th Cir. 1989); Safe Energy Coalition v. United States Nuclear Regulatory Comm'n, 866 F.2d 1473 (D.C. Cir. 1989); Massachusetts Pub. Interest Research Group v. United States Nuclear Regulatory Comm'n, 852 F.2d 9 (1st Cir. 1988). Regarding the NLRB's procedures, see Dunlop v. Bachowski, 421 U.S. 560, 562-63 (1975). Any number of other agencies also entertain complaints filed by private parties regarding alleged regulatory violations within their jurisdiction.
168. See supra note 128; 5 U.S.C. § 555(e) (1994).
169. See 5 U.S.C. § 706 (1994) (permitting a reviewing court to "compel agency action unlawfully withheld"); id. at § 702 (authorizing review if agency officer "failed to act").
170. See Levin, supra note 5, at 764-65 & n.388.
171. 5 U.S.C. § 704 (1994).
172. See New York City Employees' Retirement Sys. v. SEC, 45 F.3d 7, 14 (2d Cir. 1995); Salvador v. Bennett, 800 F.2d 97 (7th Cir. 1986).
173. See, e.g., National Wildlife Fed'n v. Lujan, 504 U.S. 555, 560-67 (1992); Allen v. Wright, 468 U.S. 737 (1984).
174. See Moog Indus, v. FTC, 355 U.S. 411, 413-14 (1958).