Volume 49, Number 3
Summer 1997 - Abstracts

Judicial Review in the Time of Cholera
- Patricia M. Wald

The article focuses on whether courts, in reviewing agency decisions on appeal should be more lenient when dealing with agencies whose precarious financial resources make it very hard, if not impossible, for them to comply with all of their statutorily required administrative duties.

Judge Wald makes an in-depth analysis of Professor Pierce's article Judicial Review of Agency Actions in a Period of Diminishing Agency Resources, 49 ADMIN. L. REV. 61 (1977). According to Pierce, both Congress and the courts are responsible for the resource constraints that agencies face. On the one hand, Congress keeps imposing burdens on agencies without affording them the means to carry them out. On the other, the courts are constantly adding new resource-consuming requirements which the agencies must meet in order to have their decisions judicially validated. Thus, the argument goes, in order to make the process work, courts should be more reasonable and devise a judicial review system that takes into account the inability of agencies to fully comply with their administrative duties due to lack of funds. Pierce proposes three possible judicial responses to the problem: (i) refusing to allow "slow and low-quality" decision making by understaffed agencies; (ii) including regulatory mistakes resulting from lack of funds within the "discretionary function exception" to the Federal Tort Claims Act (FTCA) liability for Government negligence as reflecting a "public policy" decision by agencies on how to use inadequate funds selectively; and (iii) not insisting on absolute compliance with the legal directives, and instead, implementing a "reporting back"� requirement on the agency�s progress.

Judge Wald does not fully agree with Pierce's proposed solutions, and fears that, if implemented, they may result in disturbing and unsatisfactory questions about the future of administrative law.

First, she says, it is Congress that gives the agencies their rulemaking and other discretionary powers, while the Court stays on the side just to make sure that agencies do their job and carry out their discretionary powers in a reasonable fashion. If an agency cannot perform its duties due to lack of funds, the agency should deal with this problem directly with Congress. The courts should not have to lower their standards while Congress is allowed to adhere by theirs. Rather, an agency facing such financial constraints should probably be more selective in enforcing its actions and do whatever little it can, right, rather than expending all their resources in trying to do more in an inadequate manner.

Second, although commentators have sharply criticized the adverse effects of judicial review on agency rulemaking, Congress has not yet acted to relief this burden. To the contrary, in 1995 the House of Representatives proposed expanding the types of justification that agencies must offer in support of their rules. Thus, apparently, Congress is looking at the courts to monitor the agencies more closely, rather than less.

Third, although the courts should not accept a blanket assertion that an agency did not perform as required due to insufficient funds, they may be more lenient where the agency has failed to perform certain statutorily required actions in favor of performing others that rank higher in public importance and pose higher risks to public health and safety. This scheme, however, may not always be feasible, as when flexibility of enforcement goes against the underlying statutes or against fundamental principles of justice and fair play.

Other alternatives which would help make judicial review more efficient without lowering quality standards include:

Adequate Explanation: Most judicial remands occur, not so much because the agency failed to do adequate research or gather sufficient substantial evidence, but because it failed to provide an adequate explanation to generalist judges of what they are doing. It takes no additional funds for agencies to better communicate their actions or rationales in covering critical points.

Reasoned Decisionmaking and Post Hoc Rationalization: Government counsel is not allowed to offer an explanation for the agency action which was not fully covered in the decision itself. Courts would reduce the number of remands by being more lenient in allowing counsel on appeal to offer these additional explanations, provided certain safeguards are implemented.

Waiver Doctrine: Refers to the refusal by the courts to hear any argument which was not fully developed by the same petitioner at the agency level. The result is that it sometimes takes several appeals to decide the central issue of the rule or statute. It should be enough that some party has raised the issue before the agency in sufficiently specific terms to put the agency on notice. Although it is true that many times courts hear close-to-frivolous appeals, there are feasible alternatives that they may implement to discourage such appeals. First, the agencies and their challengers may bring their dispute before an alternative dispute resolution forum which might which might stop at least some of the useless appeals. Courts may also adopt summary track procedures for some agency appeals which entail no arguments and shorter briefs, and are submitted to a special panel for short memorandum decisions on the papers (without precedential value). Other alternatives include making the challenger pay for bringing up weak arguments, and including a "stinging rebuke" in the affirmance emphasizing the weak nature of the appeal.

Negotiation: In certain cases, it may be possible to resort to negotiated rulemaking. This is a faster and cheaper way to satisfy more interests as all participants are not winners or losers.

Finally, Judge Wald cautions against Pierce�s proposed extension of the rule in Heckler v. Chaney which prevents judicial review of agency decisions that determine whether to expend resources on enforcement actions and immunizes resource-driven decisions that result in injuries cognizable under the FTCA. Wald is of the opinion that courts should not follow Heckler in denying access to review in more cases than they presently do.

Abstract By Katia Fano

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