Non-Enforcement and Reviewability

Question 1

Heckler v. Chaney - Facts

Answer 1

• Incarcerated individuals who have been sentenced to death – suing FDA to stop use of certain drugs in lethal injection
• FDA hasn’t approved the drugs for that use, + people who’d be administering the drugs don’t really have the expertise to do so

Question 2

Heckler v. Chaney - FDA Arguments

Answer 2

• arguing it may not have jurisdiction
• generally arguing not arbitrary and capricious, but first arguing agency used its unreviewable discretion to refuse enforcement action
• has a policy on how they implement their authority, + they’ve decided to enforce their misbranding authority only where there’s a serious threat to public health or blatant scheme to defraud -> they argue these conditions haven’t been met + decline to enforce even though not a proper use of the drugs
• Discussed in class how part of their arguments may have ultimately stemmed from the FDA just not wanting to get involved in the death penalty

Question 3

APA - 702(a)(2)

Answer 3

• refusals to act ARE covered by APA
• BUT actions committed to agency discretion by law are not subject to judicial review
• as a side note, 702(a)(1) is where statute precludes judicial review

Question 4

Heckler - DC Circuit Decision

Answer 4

• DC Circuit didn’t buy FDA’s argument -> said it’s not a case where there’s no law to apply whatsoever
• held FDA to its own policy (said FDA had to investigate unapproved use of drugs when widespread or endangering public health) -> would’ve found decision irrational, b/c can’t reconcile w/ this policy

Question 5

702(a) - Questions

Answer 5

• two parts - did Congress say unreviewable under (1), and if not, should court intuit decision shouldn’t be reviewed under (2) b/c there’s not really a standard to apply?

Question 6

Overton Park

Answer 6

• court decided to review in this case b/c Congress provided a standard + agency did the opposite, so pretty clearcut
• BUT gets invoked in Heckler to distinguish between discretion agencies get when NOT enforcing + discretion they get when they ARE enforcing (Prof noting this distinction wasn’t really necessary – they could’ve just said there was no standard to apply in this case, but instead they decided to distinguish enforcement vs. non-enforcement)

Question 7

Heckler v. Chaney - Significance

Answer 7

• establishes presumption that judicial review is NOT available in non-enforcement decisions
• argues generally unsuitable for judicial review
• technically acknowledges that this presumption is rebuttable though

Question 8

Heckler - Reasoning

Answer 8

• non-enforcement decisions often involve agency balancing various factors -> this kind of decision-making is best left to the agency
  -> Whether this is the best use of limited resources, whether the agency is likely to win, does the action fit within agency’s overall priorities + policies
  -> Practical side – court isn’t really comfortable driving these kinds of decisions (Prof noted a bit in contrast to 702(a)(1) – the express indication one is Congress saying it doesn’t want the court involved, vs. 702a2 court just kinda saying it’d be uncomfortable)
• Not using the coercive power of the state in a non-enforcement decision
• Analogy to prosecutorial discretion – courts don’t get involved in decision not to indict

Question 9

Heckler - Rebuttable Nature of Presumption

Answer 9

• to rebut, Congress could set priorities or circumscribe agency’s power

Question 10

Options for Congress to Address Non-Enforcement

Answer 10

• Heckler generally frames under-enforcement as Congress’s problem – if they’re concerned, they need to take it up with the executive branch
• could put clearer standards into the law
• could theoretically allocate more resources to the agency (Prof noting this is a hook agencies use to justify leaving the court out)
• could include an appropriations rider directing the agency to use the funds for a particular purpose
• could also hold oversight hearings

Question 11

Heckler - Individual vs Broader Policy Decisions

Answer 11

• Prof noted that Heckler oscillates between the two -> problematic b/c might want to view these differently
• result - decision not just restricted to case-by-case, but also trying not to give agencies sense they can just ignore statutes

Question 12

Heckler - Individual Language

Answer 12

• whether agency likely to succeed
• agency can’t act on each technical violation of a statute

Question 13

Heckler - Policy Language

Answer 13

• best use of resources
• many variables in setting priorities
• Congress can give direction on “issues” agency must pursue
• footnote that indicates they’re thinking about bounds of non-enforcement (might have something so extreme that it reaches abdication of statutory responsibility) but they’re not really sure where to draw the line)

Question 14

Heckler and MQD

Answer 14

• Prof asked whether Heckler could be viewed as a sort of reverse MQD - unless Congress has said otherwise, agency has freedom to decline enforcement
  -> potentially illustrates evolution of the court’s view on agency discretion
• point on potential distinction between action + non-action that would still resonate with modern court – conservatives often trying to limit agency ability to do stuff (Heckler leaves no lower bound, you don’t have to do anything + court can’t review that decision, vs. MQD says you can’t do too much)
  -> added q though of how that would come out in an immigration case though - cts very political

Question 15

Marshall Concurrence - Approach to FDA Analysis

Answer 15

• FDCA not a “shall” statute – FDA has discretion, Marshall looks at their reason + says it’s enough to pass muster
  -> motivated by decision about how to allocate finite resources, not arbitrary + capricious, no abuse of discretion, take it at face value
• general principle he would’ve taken away: When agencies acting under a statute that allows them discretion + the reason for non-enforcement is a decision about allocating resources, courts will let it go

Question 16

Heckler Marshall Concurrence - Non-Enforcement

Answer 16

• finds distinction between enforcement + non-enforcement “simply untenable”
• majority focuses on actors w/ skin in the game (regulated public, agency), vs. Marshall emphasizing they left out regulatory beneficiaries (people who are supposed to be protected by the statute who are not being protected because the agency is choosing to go the non-enforcement route)
• argues one of purposes fueling creation of agencies = reality that gov refusal to act could have just as devastating an impact on life/liberty/property/pursuit of happiness as action
• critiques analogy to prosecutorial discretion - crim law not really trying to make the victim whole, vs admin law future-looking (interests at stake are more focused + more pressing because it’s about the statutory beneficiaries Congress wanted to protect from harm)

Question 17

Marshall Concurrence - APA

Answer 17

• emphasizes sine qua non of APA was to alter judicial reluctance to constrain admin exercise of power
• discretion can be veil for laziness, corruption, incompetency, lack of will, or other motives -> discretion shouldn’t be insulated from judicial review

Question 18

Heckler and Political Valence of Admin Law

Answer 18

• political valence mismatch in where Marshall comes down – switch of positions between what we think is the liberal position on the court + how they trust agency discretion vs modern conservation approach to agency discretion
• importance of pulling apart how you feel about your policy preferences + how you feel about admin law
• student point though about the fact that Marshall has underlying commitment to the value of the admin state (protection of beneficiaries) even as he’s skeptical about the people in it, vs. Gorsuch totally misses statutory beneficiary concerns

Question 19

Advice for Designing Enforcement Policies

Answer 19

• could draft memo to field staff
  -> give some guidance, but make clear it’s discretionary + be careful how much direction you give (TX v US)
• q of whether or not you’d want to do anything re express non-enforcement (Heckler theoretically gives you more discretion in non-enforcement, but practically probably not popular with certain stakeholders to announce this)
• could reference limited resources
• try to make sure there’s data to back up your priorities

Question 20

EPA Covid Enforcement + Compliance Assurance Program

Answer 20

• essentially, EPA created a temporary standard for during the pandemic
  -> do what’s reasonably practicable, not required to report non-compliance but should record it internally, some higher standards for water to ensure drinking water doesn’t become an issue
  -> don’t expect to see penalties for violations of routine compliance monitoring in situations where EPA agrees covid = cause of non-compliance + entity provides supporting docs to EPA upon request (Prof says they don’t just say it’s an enforcement vacation, they say if COVID is making your compliance difficult, we don’t expect to do penalties for those violations, document if you can but don’t worry if you can’t, forbearance for compliance with settlement agreements, but still need to do stuff relevant to drinking water)

Question 21

Challenge to EPA COVID Policy - NY v. EPA

Answer 21

• state AGs
• argue agency is abdicating responsibility to enforce these things at a time when it’s important to do so + not considering harm of not enforcing
• unspoken concept that corporate interests might be informing original policy
• a + c b/c not actually considering all the interests at stake in setting this policy
• blanket waiver rather than case-by-case (even if you have discretion, shouldn’t totally abdicate)
• changes regs already in place -> should do notice + comment (Prof noted though weaker arg b/c not really practicable here)

Question 22

OSHA COVID Enforcement Policy

Answer 22

• designed policy (National Emphasis Program) to direct more resources towards workplaces where workers most likely to get COVID + also towards any reports of retaliations for raising COVID issues
• identified hazardous industries + told staff at least 5% of inspections should be of co’s w/ high hazard industries

Question 23

Analysis of OSHA Covid Policy

Answer 23

• somewhat ambiguous as to whether similar to Chamber of Commerce
• not really requiring anything of the employers themselves, so arguably distinct
• but potential q of discretion of OSHA officers -> is this a new COVID enforcement standard that should’ve been a rule?

Question 24

Heckler - Marshall Quotes

Answer 24

• “attempting to draw a line for purposes of judicial review between affirmative exercises of coercive agency power and negative agency refusals to act, see ante, at 832, is simply untenable; one of the very purposes fueling the birth of administrative agencies was the reality that governmental refusal to act [non-enforcement] could have just as devastating an effect upon life, liberty, and the pursuit of happiness as coercive governmental action.”
• “the sine qua non of the APA was to alter inherited judicial reluctance to constrain the exercise of discretionary administrative power – to rationalize and make fairer the exercise of such discretion.”
• “Discretion may well be necessary to carry out a variety of important administrative functions, but discretion can be a veil for laziness, corruption, incompetency, lack of will, or other motives, and for that reason ‘the presence of discretion should not bar a court from considering a claim of illegal or arbitrary use of discretion.’”