15 ELR 20335 | Environmental Law Reporter | copyright © 1985 | All rights reserved

Heckler v. Chaney

No. 83-1878 (U.S. March 20, 1985)

ELR Digest

The Supreme Court rules that an agency's decision not to take enforcement action is presumed to be committed to agency discretion by law and hence immune from judicial review under Administrative Procedure Act (APA) § 701(a)(2). Prisoners sentenced to death by lethal injection brought suit against the Food and Drug Administration (FDA) for failing to require FDA approval of the drugs to be used. The Court declares that the reviewability of the FDA's decision not to enforce the law turns on the substantive law at issue and the APA, in particular the exception to reviewability in APA § 701(a)(2). That subsection bars review when "agency action is committed to agency discretion by law." in Boverton Park, 1 ELR 20110, the Court interpreted this subsection to apply "in rate instances where . . . there is no law to apply," i.e., where the statute contains no standards against which to judge an agency's action.

The court of appeals had read Boverton Park to raise a presumption of reviewability even for enforcement actions. But the Court notes that for a number of reasons, agency decisions not to enforce are generally unsuitable for review. They reflect complex balancings of factual and managerial factors peculiarly within the agency's expertise. And decisions not to enforce usually do not threaten important liberties. The Court holds that in § 701(a)(2) Congress intended to maintain the tradition of a general presumption of unreviewability for agency decisions not to enforce.

Turning to the substantive law at issue, the Federal Food, Drug, and Cosmetic Act (FDCA), the court finds nothing in the Act, in agency policy, or in agency regulations that indicates an intent to limit and provide enforceable standards for agency enforcement.

Justice Brennan, concurring, stresses that a decision not to enforce based on a finding of lack of jurisdiction, exhibiting a pattern of willful ignorance of clear statutory or regulatory language, involving a violation of constitutional rights, or motivated by bribery or other illegitimate reasons would still be reviewable.

Justice Marshall, concurring in the judgment, would hold enforcement actions to be reviewable absent clear and convincing congressional intent to the contrary. He argues that the Court's opinion creates its presumption of unreviewability out of whole cloth; the court based the presumption on a fictional "tradition" and on four nongermane cases. Though he recognizes that an agency is in a far better position that the courts to make the sort of resource allocation judgments required in setting enforcement priorities, the rule fashioned by the court is unnecessarily broad.Decision not to prosecute may be reviewed under the "arbitrary, capricious or abuse of discretion" standard and will normally pass that test. This case is no exception.

The full text of this opinion is available from ELR (19 pp. $3.00, ELR Order No. C-1333).

Counsel for Petitioner
Kenneth S. Geler, Deputy Solicitor General
Department of Justice, Washington DC 20530
(202) 633-4037

Counsel for Respondents
Stephen M. Kristovich
Munger, Tolles & Rickershauser
5th Floor, 612 S. Flower St., Los Angeles CA 90017-2885
(213) 683-9100


15 ELR 20335 | Environmental Law Reporter | copyright © 1985 | All rights reserved