- Source: Heckler v. Chaney
Heckler v. Chaney, 470 U.S. 821 (1985), is a decision of the Supreme Court of the United States which held that a federal agency's decision to not take an enforcement action is presumptively unreviewable by the courts under section 701(a)(2) of the Administrative Procedure Act (APA). The case arose out of a group of death row inmates' petition to the Food and Drug Administration (FDA), seeking to have the agency thwart the state governments' plans to execute the inmates by lethal injection. The FDA declined to interfere, a decision the inmates appealed unsuccessfully to the District Court for the District of Columbia. On further review, the D.C. Circuit Court of Appeals held that the FDA's action was reviewable and that its denial was "arbitrary and capricious". The Supreme Court unanimously reversed the appeals court and declared in an 8–1 decision that agency nonenforcement decisions were presumptively unreviewable.
The case hinged on various interpretations of sections 706 and 701(a) of the APA. Section 706 makes agency actions reviewable and empowers courts to set them aside when they are found to be "arbitrary, capricious, [or] an abuse of discretion", while section 701(a) lists two exceptions to section 706, preventing review where it is prevented by another statute or "committed to agency discretion by law". These two exceptions, fairly similar in scope, raised questions for courts attempting to interpret them. In Citizens to Preserve Overton Park v. Volpe (1971), the court ruled that the section 701(a)(2) exemption applies only where "statutes are drawn in such broad terms that in a given case there is no law to apply" that might constrain the agency's discretion, a holding which provoked some criticism from lower courts and the wider legal community.
The D.C. Circuit Court of Appeals reacted to Overton Park by holding that practical considerations should be used in determining whether to grant review, rather than looking at the laws relevant to the agency in question – in Chaney, they did precisely this in overturning the district court. The Supreme Court overturned the appeals court's decision and upheld Overton Park's emphasis on statutory considerations, but the presumption of unreviewability it created in this case was largely based on practical factors rather than statutory factors. It reasoned that, in general, an agency's decision not to enforce does not easily lend itself to manageable standards of judicial review, likening such a decision to one a prosecutor might make. It highlighted, however, that the presumption of unreviewability can be rebutted where the plaintiffs provide a relevant statute ("law to apply") that limits the discretion of the agency.
Justice William J. Brennan Jr. concurred with the majority and emphasized that the court was not closing off all avenues of review for nonenforcement decisions. Justice Thurgood Marshall concurred in the judgment only, criticizing the majority's decision to create a presumption of unreviewability and instead arguing that the FDA's decision should have been held to be reviewable and upheld on the merits. Lower courts largely accepted the ruling, albeit with varying interpretations of scope; the wider legal community criticized the majority's rationale for a presumption of unreviewability while agreeing with the result immediately concerning the inmates.
Background
= Case
=Prior to the 1970s, U.S. states primarily executed prisoners with either the electric chair or the gas chamber. Supporters of lethal injection said it was more dignified and less painful than electrocution. In 1977, Oklahoma became the first U.S. state to pass a law authorizing execution via lethal injection. Under its procedure, a chemical paralytic agent is combined with an "ultra-short acting barbiturate", to which State Medical Examiner Jay Chapman added a lethal dose of potassium chloride;. A day after Oklahoma passed its statute, Texas passed its own version, containing no specific protocol for execution. By 1984, fifteen states had adopted lethal injection as a method of execution.
The NAACP Legal Defense Fund and two people sentenced under these statutes petitioned the FDA asserting that the use of barbiturates and derivatives of curare for executions "may actually result in agonizingly slow and painful deaths". These petitioners were Larry Leon Chaney of Jenks, Oklahoma, who was convicted of the 1977 murder of Kendal Ashmore, and Doyle Skillern, who was convicted of the 1974 murder of Patrick Randel. Chaney was the second person in the state to be sentenced to death by lethal injection; his protracted legal battle in state and federal courts was met with little initial luck, including the U.S. Supreme Court thrice declining to review Chaney's case.
Per the petitioners, their states were planning to use drugs for lethal injection that had not been approved by the FDA for that purpose, in violation of two provisions of the Federal Food, Drug, and Cosmetic Act's (FDCA). First, they contended, their states had violated 21 USC § 355 by distributing a "new drug" by way of interstate commerce. While the drugs were FDA-approved, the petitioners argued they were "new drugs" under the statutory requirements because they had not received an FDA determination that the drug in question was "safe and effective" for the purpose of execution. Second, they said that their states' use of approved drugs for unapproved purposes violated the "misbranding" provisions of the act. They requested that the FDA declare that the drugs were not "safe and effective" for lethal injection, seize prison stockpiles, recommend the prosecution of those involved in the sale of drugs for lethal injection, and investigate the administration of the drugs by untrained personnel.
That July, in a letter to the inmates' lawyer, the FDA declined the petition on jurisdictional grounds, reasoning that states have the prerogative to use FDA-approved drugs for any purpose they see fit. Arthur H. Hayes Jr., the head of the FDA, wrote that he felt the agency "must defer to a state's choice" in the matter, and wrote that even if the agency did have jurisdiction, it would still decline the petition under what it asserted was its "inherent discretion to decline to pursue...enforcement". By this time, the number of petitioners had increased to eight. Five of them were from Oklahoma, including Chaney, Alton C. Franks, Carl Morgan, Charles William Davis, and Robyn Leroy Parks; three were from Texas, including Skillern, Jerry Joe Bird, and Henry Martinez Porter. The inmates appealed the FDA's refusal to the federal court system.
= Administrative Procedure Act
=Section 10 of the Administrative Procedure Act of 1946 (codified as 5 USC §§ 701-706) provides a cause of action to people who are "adversely affected or aggrieved" by an agency action or "failure to act" as long as the action is a "final agency action for which there is no other adequate remedy in a court". § 706(2)(A) authorizes courts to set aside actions of federal agencies that are "arbitrary, capricious, [or] an abuse of discretion" creating tension with §701(a)(2)'s exemption of agency actions "committed to agency discretion by law" from judicial review. §701(a)(1) already applies when "statutes preclude judicial review" so § 701(a)(2) would be superfluous if "committed to agency discretion by law" was limited to statutory preclusion of judicial review. Then again, if all agency discretion conferred by statute is rendered unreviewable by the subsection, then § 706(a)(2) would have no effect. The Court ruled in Abbott Laboratories v. Gardner (1967) that the APA proves a "basic presumption of judicial review" that is only rebuttable when "clear and convincing evidence" shows a legislative intent to preclude judicial review.
The court first directly ruled on § 701(a)(2) in Citizens to Preserve Overton Park v. Volpe (1971), ruling that it only included cases where "statutes are drawn in such broad terms that in a given case there is no law to apply" to the case. The "no law to apply test" was criticized by scholars who pointed out that § 706 required judicial review. Lower courts in the District of Columbia Circuit argued that the "no law to apply" test should be interpreted as depending on a pragmatic or "functional analysis" of whether a given case was judicially reviewable. When the pragmatic concerns outweighed arguments in favor of review, they would rule that there was "no law to apply". Some commentators said that the D.C. Circuit was completely disregarding the Supreme Court's decision under the guise of following it.
The Supreme Court previously ruled on the reviewability of agency inaction in Dunlop v. Bachowski (1975), affirming the Third Circuit Court of Appeals' decision that the Secretary of Labor's decision not to bring a lawsuit when petitioned was reviewable by the courts. The court reached this decision on the grounds that it was the secretary's "heavy burden" to prove that Congress had intended to make their decision under the relevant statute unreviewable, and came to the conclusion that Congress had no such intentions. It also dismissed by footnote the secretary's argument that their decision whether or not to enforce was protected by prosecutorial discretion. Justice William Rehnquist dissented, arguing that the secretary's action was an exercise of agency discretion under section 701(a)(2).
Court proceedings
= Lower courts
=The inmates appealed the FDA's refusal to the United States District Court for the District of Columbia in Chaney v. Schweiker. On August 30, 1982, the court issued summary judgment against them, holding that the nonenforcement actions are "essentially unreviewable by the courts". The D.C. Circuit Court of Appeals, however, reversed the district court. Judge J. Skelly Wright, writing the majority opinion, invoked the broad assumption of reviewability set out in Gardner and Dunlop, and narrowly construed the "no law to apply" test set out in Overton Park to primarily rely on pragmatic considerations such as "whether judicial supervision is necessary to safeguard plaintiffs' interests, whether judicial review will unnecessarily impede the agency in effectively carrying out its congressionally assigned role, and whether the issues are appropriate for judicial review." Wright also cited an FDA policy statement in which the agency committed itself to acting against unapproved uses of approved drugs as additional "law to apply". Having asserted that the agency's nonenforcement decision was reviewable, Wright ruled the agency's decision to be arbitrary and capricious.
Judge Antonin Scalia dissented, arguing that the majority cited Dunlop, Overton Park, and Gardner erroneously and that they did not apply to the case at hand. While he agreed that there is a strong presumption of reviewability towards agency action in general, he argued that agency enforcement decisions carried a strong presumption of nonreviewability, and that the three precedential cases were not intended to address section 701(a)(2) and this case. He also noted that the FDA policy statement was attached to a proposed rule that was never adopted. In a subsequent opinion, Scalia also criticized the court's regular reliance on pragmatic considerations.
= Supreme Court
=The Supreme Court reversed the D.C. Circuit's decision, ruling unanimously against Chaney; Justice Thurgood Marshall concurred in judgement only, and did not join the majority opinion. The majority, written by Justice Rehnquist, held that agency nonenforcement decisions are presumptively unreviewable by the courts under 701(a)(2). The court's decision repudiated the appeals court's use of pragmatic considerations to grant review – it upheld Overton Park's "no law to apply" test, reaffirming the doctrine that statutory limits on discretion were necessary to allow review. In declaring a presumption of unreviewability, however, the court primarily relied on pragmatic factors to render its decision, reasoning as follows:
Agency inaction lends itself to a vagueness that makes it difficult to draw up standards of review for a given inaction case.
While action may involve the use of an agency's "coercive power", inaction does not infringe upon a person's rights.
An agency nonenforcement decision involves an expert weighing of various factors, to which the courts owe deference.
An agency nonenforcement decision shares some similarities with a prosecutor's decision of whether or not to bring charges, which is covered by the doctrine of prosecutorial discretion.
The court rejected the petitioners' argument that the FDA acted outside of its statutory discretion; applying Overton Park's "law to apply" test, the court found that the FDCA contained no such constraints because the misbranding and new drug provisions did not limit agency discretion. The court dismissed the FDA policy statement on the same grounds Scalia did: the proposed rule that statement was attached to was never adopted by the agency, and the court additionally found the language to be ambiguous on the matter. The court also refused to interpret a clause of the FDCA exempting the Secretary from exercising authority for minor violations as implying a requirement for action against major violations, reasoning that it could only apply where the agency had already established that a major violation took place, which does not happen if the agency declines to investigate.
The court distinguished Dunlop as precedent, holding that in that case, there was reasonable "law to apply" in that the relevant act could have required the secretary to take the requested action under certain circumstances. Speaking to the presumption of reviewability affirmed in Dunlop that was relied on by the D.C. Circuit Court of Appeals, Rehnquist remarked that "our textual references to the 'strong presumption' of reviewability in ... [Bachowski] were addressed only to the § (a)(1) exception; we were content to rely on the [Third Circuit] Court of Appeals' opinion to hold that the § (a)(2) exception did not apply." The court emphasized that the presumption of unreviewability is not absolute, and can be overcome if the petitioner can find "law to apply" in the enabling statue that would require action be taken. It also left open the possibility that there could be judicial review under several other circumstances, including where an agency refuses to make a rule, resolves to fully ignore its statutory obligations, or makes a nonenforcement decision that is based solely on jurisdictional grounds or violates a plaintiff's constitutional rights.
Concurring opinions
Justice William J. Brennan Jr. wrote a short concurrence contending that section 701(a)(2) was not intended to allow agencies to disregard "clear jurisdictional, regulatory, statutory, or constitutional commands", and instead should restrict challenges to what he asserted were hundreds of daily routine nonenforcement decisions that would otherwise be open to lawsuit. He argued that judicial review should still be available in the areas the majority left open or where an agency's decision stood on "illegitimate reasons", but still concurred with the presumption of unreviewability put forward in this case.
Justice Marshall, on the other hand, concurred in the judgement only. He agreed that the FDA was within its discretion to direct its resources elsewhere, and that it was therefore acceptable for it to decline the petition. He disagreed, however, with the majority's creation of a new presumption of unreviewability, calling it inconsistent with Abbott Laboratories v. Gardner's strong general presumption in favor of the opposite. He criticized the majority's use of precedent as unsupported by the case law, and took issue with their comparison to prosecutorial discretion, asserting that there are limits on its reach and that enforcement decisions, unlike prosecutorial decisions, deal much more often with situations in which nonenforcement denies someone a benefit or relief written into statue by Congress. He also criticized the prosecutorial discretion analogy on the grounds that the APA was designed to open agencies to judicial review, not shield them from it. Marshall contended that the majority's allowed exceptions to the presumption of unreviewability were too narrow, and that since an unreviewability test still involves examining an agency's rationale, it looks too similar to a deferential test on the merits in any case. "Easy cases", he remarked, "at times produce bad law". Marshall expressed the hope that over time, the majority's opinion would be interpreted as an expression of deference to agency expertise, rather than a full denial of the courts' role in agency action.
Reaction, analysis, and impact
Legal scholars largely concurred with the narrow ruling against Chaney. Ronald M. Levin, writing for the Minnesota Law Review, commented that "rarely does the Court hear an administrative law case in which the underlying facts favor the government's side as strongly as did those in Chaney." Cass R. Sunstein, writing for the University of Chicago Law Review, agreed with the court's rejection of each piece of text cited by the plaintiffs that could have potentially constrained the agency's discretion, dismissing them as irrelevant.
Some scholars criticized the majority's rationale in creating a presumption of unreviewability. Ronald M. Levin wrote that Chaney upheld the part of Overton Park that was strongly criticized by continuing to bar nonstatutory claims of abuse of discretion. William W. Templeton, writing for the Catholic University Law Review, echoes that sentiment and notes that prosecutorial discretion is in fact limited by abuse of statutorily granted discretion. He also argues that prosecutorial decisions have "fundamental differences" from agency enforcement decisions, arguing that since prosecutors seek to punish violations of the law while agencies usually seek to prevent them, a court's refusal to review an agency nonenforcement decision has more potential for harm. Elizabeth L. Crittenden, writing for the West Virginia Law Review, argues that the court split hairs on the Third Circuit's ruling in Bachowski, failed to make a clear distinction between the two parts of section 701(a), and ultimately misused the provision to arrive at a conclusion that it did not support.
Other scholars argued that the presumption of unreviewability was easily rebuttable. Sunstein wrote that "it would probably be a mistake to read Chaney as establishing a general rule of nonreviewability for enforcement decisions", pointing out that the court carved out a substantial number of exceptions as questions to be answered by a later court. Ace E. Rowley, writing for the Missouri Law Review, criticized the rationales of both the majority and Justice Marshall, saying that the latter would render section 701(a)(2) redundant while the former, if taken at face value, would close off too many avenues of potential review. They argue instead for Justice Brennan's approach of creating a presumption of unreviewability, but broadening the scope of possible sources of "law to apply".
Lower courts largely accepted the Chaney decision without complaint in its immediate aftermath, applying the ruling to a swath of enforcement questions arising after it. Some expanded its reasoning beyond nonenforcement decisions, such as the Seventh Circuit's decision in Bethlehem Steel Corp. v. Environmental Protection Agency that the EPA's refusal to make a rule concerning the operation of coke ovens was unreviewable; others have refused to make that inference, such as the Eighth Circuit's decision in Iowa ex rel. Miller v. Block that the Department of Agriculture's refusal to implement an entire payment program was reviewable.
Chaney's sentence had already been overturned the year before by the United States Court of Appeals for the Tenth Circuit for an unrelated reason; a state court subsequently converted it to life imprisonment. Had he been executed, he would have been the first person executed in Oklahoma by lethal injection. Doyle Skillern was executed by lethal injection on January 16, 1985, in the Huntsville Walls Unit.
Notes
References
= Citations
== Works cited
=Academic sources
Court cases
Other sources
Further reading
Text of Heckler v. Chaney, 470 U.S. 821 (1985) is available from: Justia Library of Congress Oyez (oral argument audio) LSU Law Center