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(ISSN 0001-8368)
Fall 1988, Volume 40, Number 4
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MR. BoNFIELD: My name is Arthur Bonfield. I am Chair this year of
the American Bar Association Section of Administrative Law.
I would like to welcome y ou to this program. It promises to be both
stimulating and informative. We owe a great debt to Ernie Gellhorn,
the program chair of this Fall Meeting. Unfortunately, unexpected
last minute pressing business prevented his attendance. Because
Ernie couldn’t be with us, Tom Susman, chair of the Meetings
Committee of the Section of Administrative Law, will introduce the
speakers and moderate the program.
MR. SusMAN: The D.C. Circuit has for decades been at the center of
a number of storms, and the present period is no exception. We are
pleased to bring together this afternoon a number of authorities on
the subject of administrative law and the role of the D.C. Circuit, to
examine the special role and contribution the D.C. Circuit has made
to the development of administrative law. This special role is not likely
to diminish.
As the federal government becomes more active and more intrusive,
and more authority is given to agencies and departments, the
D.C. Circuit takes on increasing significance as court of last resort for
most agency decisions.
Almost three-quarters of the D.C . Circuit’s cases come from federal
agencies. Although the D.C. Circuit is the court of last resort for most
cases, obviously, there is still appeal to the Supreme Court. However,
even there the D.C. Circuit has had a great influence through the
membership on that court of Chief Justice Burger and Justice Scalia.
Chief Judge Wald has observed in the past that the Supreme Court
takes more cases and reverses more cases from the D.C. Circuit than
from other circuits, so the relationship is an uneasy one, as well as a
special one, between the two courts.
“This is the transcript of a program presented at the Section of Administrative Law
Fall Meeting in October, 1987.
Our commentators include former professor and dean, and now
president of the College of William and Mary, Paul Verkuil. President
Verkuil is an active member of the Administrative Law Section,
formerly a member of its Council, and a well-known administrative
law scholar.
We will also hear from Professor Jeremy Rabkin, assistant professor
of political science at Cornell and contributing editor of Regulation
magazine. Professor Rabkin has written extensively on the constitutional
limits on government consent decrees.
Finally, we will hear from a private practitioner who has had a most
distinguished career in government and in the private bar, the
Honorable Lloy d Cutler. Mr. Cutler has been Counselor to the
President, member of a number of presidential commissions and
panels, leader of the ABA’s task force to study regulation, and an
outspoken commentator on administrative agencies and government
regulation .
It is a special and personal pleasure to introduce Chief Judge
Patricia Wald as key note speaker. I was on the staff of the court.
Having been able to contribute directly to the process of placing Chief
Judge v\Tald on the federal bench is a source of immense personal
Judge Wald is Chief Judge of the United States Court of Appeals
for the District of Columbia Circuit. She has served on the court since
1979. She graduated from Connecticut College and the Yale Law
School, clerked for Judge Frank on the Second Circuit, practiced law
in Washington, raised a family, then came back into practice, where
she worked in the public interest sector. Chief Judge Wald served as
an Assistant Attorney General in the U.S. Department of Justice from
1977 to 1979 when she ascended to the bench.
Chief Judge Wald has written widely on the subject of administrative
law and is widely recognized as an authority on the subject.
C1-11EF Juoc;E WALD: Thanks, Tom.
My assigned topic is “The Distinctive Contribution of the D.C.
Circuit to Administrative Law”-a daunting one to say the least. I am
tempted to be somewhat irreverent and simply say, “Being There,”
from the Peter Sellers movie of the same name. For, indeed, much of
our contribution has been the unavoidable by-product of having it
happen on our watch.
In 1986, nearly 30 percent of the 3,180 appeals from agency
decisions filed in the United States Circuit Courts came to us. No
other circuit, except the Ninth with under 20 percent, came close.
Broken down to raw numbers, we received 134 appeals from the
Environmental Protection Agency, compared with 2 3 in the runnerCONTRIBUTION
up Ninth Circuit; 181 appeals from the Federal Communications
Commission, compared with 8 in the Second Circuit; 220 appeals
from the Federal Energy Regulatory Commission, compared with 62
in the Fifth Circuit; 121 from the Interstate Commerce Commission,
compared with 9 in the Ninth Circuit; and 10 appeals from the
Nuclear Regulatory Commission, compared with 4 in the Third
Circuit. During the year, we terminated on the merits more than twice
as many direct appeals from federal agencies as any other circuit. The
disproportionate number of appeals we get from these agencies
assures that we will be the dominant judicial force in their
operations. 1
W hether we like it or not, our court is preoccupied with administrative
law. In 1986, 48 percent of our filings came directly from
agencies, and another 25 percent were appeals from district court
cases involving government parties, mostly alphabet agencies. Every
other category of cases on our docket paled by comparison. We are
immersed in the stuff.
But it has not always been that way for the D.C. Circuit. We are, de
facto, an administrative law court not by grand design but by historical
accident, and a relatively recent one at that.
Before 1970, the D.C. Circuit was a hybrid federal-local court of
appeals. It had exclusive federal agency appeal jurisdiction in areas of
maritime and communications law but the bulk of its docket consisted
of discretionary appeals from local courts. The circuit’s high visibility
throughout the sixties was due to its landmark rulings in the fields of
criminal defendant rights and poor people’s law: it was, for example,
the D.C. Circuit and Judge Bazelon in particular who formulated the
so-called Durham2 rule for insanity defenses, ih later times to be
replaced by the somewhat stricter Model Penal Code standard.
Indeed, it is no secret that a major motivation for the 1970 District of
Columbia Court Reorganization Act [hereinafter Court Reorganization
Actf 1 was the Nixon administration’s fierce opposition to many of
these rulings, although the reason formally asserted for the legislation
was the administration’s dismay at the serious backlog of criminal
cases in the federal district court.
The District of Columbia Court Reform and Criminal Procedure
Act [hereinafter Court Reform Act]4 eliminated the appellate jurisdiction
of the D.C. Circuit over local law appeals. It transferred
1The statistics in this address concerning the D.C. Circuit, where not otherwise
accounted for, generally appear in AllMINIS rn.ATivr: OFFICE OF THE UNITED S IAn:s
CouRTs, ANNUAL RI•:PORT OF THE DIRECTOR ( 1986), or in its statistical appendix 2.
2 Durham v. United States, 214 F. 2d 862 (1954).
:?Pub. L. No. 91-358, title I,§§ 155(c), 172, 173(a)(l), 84 Stat. 570 (1970).
1 Pub. L. No. 91-358, titles I,Il §§ 155(c), 172, 173(a)(l), 2ll, 84 Stat. 570 (1970).
jurisdiction over all civil and criminal cases involving purely local law
from the federal courts to the two revamped and reinvigorated local
The void left in the D.C. Circuit’s docket coincided with a period of
exponential growth in federal regulatory legislation. Between 1968
and 1978, Congress passed more regulatory statutes than it had in the
nation’s previous 179 years: the Occupational Safety and Health Act,5
the Consumer Product Safety Act,6 the National Traffic and Motor
Vehicle Safety Act, 7 the Child Protection and Toy Safety Act, 8 the
Federal Coal Mine Health and Safety Act,9 the Surface Mining
Control and Reclamation Act, 10
the Truth in Lending Act,
the Age
Discrimination Act, 12 the Equal Employment Opportunity Act, 13 the
Clean Water Act,
the Toxic Substances Control Act, l.’:i and the
Clean Air Amendments of 1970 16-to name only a few. Meanwhile,
because the geographical boundaries of the circuit were confined to
the Washington city limits, the number of private claims, diversity
cases and federal crimes arising within the circuit remained static. It
still is: In 1986 our circuit terminated on the merits only 39 criminal
appeals and 154 private civil actions, compared to 222 administrative
law cases. And we continue to receive only a trickle of the social
security and habeas corpus cases that flood other circuits. In the
seventies, administrative law cases started to surge; the largest number
flowed toward our circuit.
There were three major reasons for this gravitational pull. F irst, the
organic statutes of some agencies required that agency cases be
brought within this circuit. Second, many actions were initiated by the
;’Pub. L. No. 91-596, 84 Stat. 590 (codihed as amended in scattered sections of 5, 15,
18, 29, 42, and 49 U.S.C.) (1982 & Supp. 111 1985).
<‘Pub. L. No. 92-573, 86 Stat. 1207 (codified as amended in scattered sections of 5 and
15 u.s.c. (1982).
7Pub. L. No. 89-563, 80 Stat. 718 (codified as amended in scattered sections of 15 and
23 U.S.C. (1982 & Supp. lll 1985).
8Pub. L. No. 91-113, 83 Stat. 187 (1969).
i,Pub. L. No. 91-173, 83 Stat. 742 (codified as amended in scattered sections of 15 and
30 U.S.C.) (1982 & Supp. III 1985).
10Pub. L. No. 95-87, 91 Stat. 445 (codified as amended in scattered sections of 18 and
30 U.S.C.) (1982 & Supp. III 1985).
11 Pub. L.No. 90-321, title 1, 82 Stat. 146 (codified as amended in scattered sections of
15 and 18 U.S.C.) (1982 & Supp. III 1985).
1 ?Pub. L. No. 94-135, title III, 89 Stat. 728-732 (codified as amended at 42 U.S.C.
§§ 6101-6107)(1982).
1 :-IPub. L. No. 92-261, 86 Stat. 103 (codified in scattered sections of 5 and 42 U.S.C.)
11 Pub. L. No. 95-217, 91 Stat. 1566 (codified as amended in scattered sections of 33
U .S.C.) ( 1982).
1 “Pub. L. No. 94-469, 90 Stat. 2003 (codified as amended in scattered sections of 15
U.S.C.) (i982 & Supp. Ill 1985).
11’Pub. L. No. 91-604, 84 Stat. 1676 (codified in scattered sections of 42 and 50
U.S.C.) (1982).
federal government, and since it resided in Washington, it generally
preferred to litigate here. And third, for a long time, there was the
perception that the D.C. Circuit provided an especially friendly
forum for “public interest” or-in the view of some-“special interest”
groups. Senator Orrin Hatch once complained of the D.C. Circuit’s
judgments affecting public lands in Western states as “the modus
operandi by which a number of special interest groups have imposed
extreme interpretations of the law on an unwilling majority of
Americans.” 17 Now, Senator Hatch’s opinions are constitutionally
protected, but the statistics show that the vast majority of challenges to
agency decisions or rules brought in the D.C. Circuit have been
initiated not by public interest groups, but by industry. So the business
world apparently has not viewed us as an implacable enemy and there
is much public commentary these days to suggest that we are now
viewed by business as a particularly friendly court.
One last observation about our evolution as an administrative law
court: the radical change in the court’s jurisdiction in the early
seventies coincided with a time of unusual stability in the court’s
membership. From 1970 until 1979, when I joined the court, there
were no changes in membership at all. (In the period since then, by
contrast, there have been eight new appointments.) To put that great
period in perspective, the last time the Supreme Court went nine
years without a membership change was during the administration of
James Monroe! In the seventies, the brilliant minds of David Bazelon,
J. Skelly W right, Carl McGowan, Spottswood Robinson, Ed Tamm,
Harold Leventhal, George MacKinnon, Roger Robb, and Malcolm
Wilkey turned, with rare agility, from issues primarily of local criminal
law and procedure to issues of federal administrative law. Not one had
been selected for his expertise in administrative law, although all had
prior experience in government service; yet the skill with which they_
mastered and ultimately came to dominate this field was breathtaking.
That has, in fact, been something of a recurrent source of criticism
about the makeup of our court. To the often-expressed consternation
of the local bar, wherein so much administrative law expertise reposes,
the judges of the D.C. Circuit have generally been chosen from
around the country with only a few exceptions from inside the circuit.
Moreover, only an occasional appointee, such as Judge (now Justice)
Scalia, has come to the court with a matured expertise in administrative
law. One can only wonder whether the court’s work product
would have been different-less varied, less yeasty, less controversial,
more empathetic with agency procedures, if, as in so many specialized
17 Federal Venue Statutes: Hearing Bejine the Subcomrn. on Improvements in Judicial
Machinery 1if the Senate Comm. on the .Judicimy, 96th Cong., 2nd Sess. 16 ( 1980)
[hereinafter Venue Statutes Hearing] (statement of Sen. Orrin Hatch).
courts, our judges had been selected for their prior expertise in
administrative law. As it was, the D.C. Circuit’s judges in the seventies
were new brooms, sweeping broadly across the neglected agency
landscape, raising much dust, and many hackles.
Now, in 1987, if you’ll forgive me for borrowing from Mayor Koch
of New York-how are we doing?
The number of cases an administrative law court decides are, of
course, only one barometer of its performance. What our statistical
predominance does suggest, however, is that our court, as a rule,
should be among the first to pick up and air the threshold issues in
administrative law. We should also be expected, because of the greater
frequency with which we review particular agencies, to detect questionable
patterns of behavior that might go unnoticed in isolated
cases. Confirmation that we are succeeding in doing the first appears
from statistics that approximately half of the Supreme Court’s last five
terms’ administrative law cases came up from our circuit, including
the recent Holy Trinity of Chevron, USA v. Natural Resources Defense
Council, Inc., 18 Motor Vehicle Manufacturers Association v. State Farm
Mutual Automobile Insurance Co., 19 and Heckler v. Chaney.20 Here I
hasten to add-before someone else leaps to do so-that in many of
these cases, the Supreme Court reversed us, at least in part, so I do
not suggest that we are a kind of administrative law St. John the
Baptist for the Supreme Court. Rather, our unique role is in identifying
and framing the major issues for High Court resolution. We
may not always be right but we usually are exhaustive. By the time the
Supreme Court steps in., all sides of the issue are well-illuminated. 2I
There are several reasons why the D.C . Circuit can so readily
perform this framing and staging function for the Supreme Court.
We have far fewer cases to sit on than other circuits: about 115 a year
18467 U.S. 837 (1984).
19463 U.S. 29 (1983).
20470 U.S. 821 (1985).
21 Time does not permit any extensive illustration of the monitoring function the
court performs with respect to a particular agency’s implementation of its statutory
section. I will give only one example. The Federal Labor Relations Authority, which
performs roughly the same function for federal government labor negotiations as the
National Labor Relations Board does for the rest of industry and business, must,
among other things, decide whether the bargaining proposals of government workers’
unions are “negotiable” under 5 U.S.C. §§ 7101-35 (1982) (Federal Service Labor Management
Relations). Most controversies over negotiability center on the “management
rights” provision , which prohibits certain management prerogatives from
becoming the subject of collective bargaining. This one section, § 7 l 06, alone has given
rise to 26 published opinions of our court from Federal Labor Relations Authority
determinations in the last two years. It would be fair to say that our court has first
formulated several of the key statutory constructions on which the agency now
operates. Because each case, however, is so fact-specific, it is unlikely that the Supreme
Court will be tempted to review these determinations. The court becomes in such
instances the watchdog of agency consistency and fidelity to statutory intent.
per judge, compared to a national average of 225. We publish far
fewer opinions: last year our average per judge was twenty-eight
majority opinions and six separate opinions; in other circuits of
comparable size, each judge publishes between fifty and sixty opinions
per year. Before you condemn us as delinquent, however, you
undoubtedly recognize already that agency cases tend to have massive
records; on average, five lawyers and five briefs per case; they are
more likely than other types of cases to involve intervenors, amicus
briefs, and protracted motion-filled post-disposition periods. And our
judges do tend to dwell on each decision: a typical D.C. Circuit
opinion can make Proust look like bedtime reading. In 1985, we
produced in the a.dministrative law area alone fifty-eight slip opinions
over twenty pages long and eight over fifty pages. We’ve always held
the record for the nation’s longest opinions, and our lead is stretching.
You will not be pleased to learn that our page-totals as a circuit so
far in 1987 are running 80 percent longer than during the comparable
period in 1986.
There’s a final reason we may be especially well-equipped to play
the role of Supreme Court agenda-setter on administrative law issues.
We are located just down the avenue from Congress and just up the
street from the White House. Several D.C. Circuit judges have been
members of Congress, and most of us have held policymaking
executive positions. Our daily newspapers are full of agency doings,
and government doings are the talk of the town. Now it may be
difficult to trace from casual conversation to published opinion a
direct chain of awarenesses, sensitivities, general information or
impressions, but I am confident the nexus is there. So, apparently, are
some members of Congress who have, over the years, regularly
sought to amend the laws governing our jurisdiction; for example, to
relocate the venue of cases dealing with site-specific environmental
disputes out of Washington and away from District of Columbia
judges, on the grounds we have little understanding of and appreciation
for local conditions elsewhere. As later-to-be Secretary of
Interior James Watt once put it: “[W]e find that eastern judges
Uudges who are ‘foreign’ to many values of the West) are making
decisions which control our destiny as a people and as a vital force in
America’s economy.”22 “The thought that the District of Columbia
Courts are better than the rest smacks of elitism and it is just not
true.”23 I would suggest-with some temerity-that the geographic
disadvantage to which Mr. Watt referred may be balanced in part at
least by the intensity with which the D.C. Circuit judges immerse
themselves in those problems. Uniformly, they bring to their jobs a
22 Venue Statutes Hearing, supra note 17, at 33.
2:1Jd. at 31.
preoccupation with the workings of government that we hope assists
us to get to the heart of administrative law issues with dispatch and
perspicacity. In our opinions and at our oral arguments, there is
constant preoccupation with and debate about how Congress and
agencies actually work, and how much of legislative history is concocted
or real. At argument, counsel typically encounter a stream of
knowing asides from the bench about what the judges think is really
going on in the bureaucracy. It’s generally pretty hard to sneak a
farfetched agency rationalization past our collective skepticism.
In addition, we see government counsel often enough so that [
they, too, are acutely aware we suffer poorly off-the-wall arguments. I
The relationship between our court and government lawyers [ miniaturizes that between the Supreme Court and the Solicitor
General’s office, which, by and large, keeps tJ:ie bench-bar dialogue
within rational bounds. It has even been suggested by some
Supreme Court Justices in recent years that the quality of advocacy
in our court generally is a match for-or even better than-that in
the Supreme Court.
So far I have focused on the more obvious factors that make the
D.C. Circuit distinctive: our forced preoccupation with administrative
law, judges who are both knowledgeable and savvy, the constant
intellectual ferment in the nation’s capital. What I now propose to do
is to take you on a tour of our circuit in action: to explain from my
perspective how we have played our pivotal role through the last
twenty years, and to stop briefly at .some critical way stations to show
how our oversight of judicial agencies has evolved through three
distinct historical chapters, which, more for convenience than strict
accuracy, I will characterize as “burgeoning regulation,” “deregulation,”
and “nonregulation.” I’ll follow by discussing a theme common
to all regulatory eras: the proper scope of judicial review or, if
you will, of judicial deference, and describe our most recent efforts to
construct a coherent theory of those elusive limits.
The role of the D.C. Circuit in its first decade after the 1970 Court
Reorganization Act was that of an active partner in a whirlwind era of
expanded federal regulation. Congress and the Executive Branch
were initiating an array of new regulatory programs in the areas of
consumer protection, occupational safety, traffic standards, truth in
lending, mine safety, age and gender discrimination, and environmental
protection. The agencies charged with implementing Congress’
edicts began simultaneously taking full advantage of the long
dormant informal rulemaking provisions of the 1946 Administrative
Procedure Act and the issue became: What role, if any, should the
courts play in monitoring this sudden surge of bureaucratic lawmaking?
The leading figures on our circuit at that time perceived the court’s
role as twofold: to insist upon rational and accountable agency
decisionmaking in implementing these new statutes, and to ensure
that interested and affected members of the public could participate
in critical agency policymaking. This vision did not emerge at once,
but rather piecemeal in a series of landmark administrative law cases.
I am going to use our environmental law decisions during this period
as a touchstone to illustrate my points.
The opening salv.o in the environmental law revolution was the Clean
Air Amendments Act of 1970. The Act readily accommodated-if, indeed,
it did not actually envision-what Judge Leventhal later termed
a “collaborative partnership” between Congress and the court of appeals;
Congress later amended the Act to give the D.C. Circuit exclusive
jurisdiction over most national scope EPA appeals. In the ensuing years,
the court parlayed its special status into a dominant role in the development
of EPA law and procedure under the Act.
The first major D.C. Circuit Clean Air Act case was Kennecott Copper
Corp. v. EPA,24 in 1972. It was in Kennecott that Judge Leventhal announced
the court’s intention of becoming “in a real sense part of the
total administrative process.”25 The court showed little constraint in
plunging into a maze of high technological complexity. It required the
EPA to provide a detailed enough statement about the basis for its national
secondary ambient air quality standards for sulfur dioxide so that
the judges could decide for themselves whether the agency had made
a reasoned decision. The court, in remanding the case to the agency,
ordered this additional explanation despite a finding that the regulation
had already satisfied the Administrative Procedure Act’s (APA/?6 requirement
of a “concise general statement” of the basis and purpose
of the regulation. What happened then was a precursor of the result
in many succeeding procedural remands by the court: EPA discovered
that it had misread important evidence and modified the sulfur dioxide
standard it had originally promulgated. One of the agency’s own counsel
concluded in a law review that the overall effect on the agency of
such detailed factual review by the court was decidedly beneficial , although
I recognize that view is not a universal one. 27
24462 F.2d 846 (D.C. Cir. 1972).
25 Id. at 849 (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851-52,
cert. denied, 403 U.S. 923 (1971).
265 u.s.c. §§ 551-559, 701-706, 1305, 3105, 3344, 5372, 7521 (1982).
27 See Pedersen, formal Records and Informal Rulemaking, 85 YALE L.J. 38 (1975); cf R.
In a second major Clean Air Act case the D.C. Circuit became an
even more aggressive senior partner. The date was 1973; the case
was International Harvester Co. v. Ruckelshaus. 28 Three major automobile
manufacturers challenged an EPA decision deny ing them a
one-year suspension of emission standards scheduled to go into
effect in 1975. The D.C. Circuit ruled for the manufacturers, again
holding that the denial of the moratorium was not justified on the
record before the court. Specifically, the court concluded that EPA’s
refusal to allow the companies to comment on the agency’s technical
methodology for measuring automobile emission standards detracted
from “an informed decision-making process.”29 The lasting
imprint of the case was the relief granted: the parties were given an
opportunity on remand to comment upon matters not previously put
before them by the EPA and a chance to cross-examine agency
officials as to both old and new testimony.
The third major Clean Air Act case was Portland Cement Association
v. Ruckelshaus in 1973.30 There, Judge Leventhal announced the
requirement that the agency not only give manufacturers the opportunity
to see and comment upon actual evidence involving relevant
test results and procedures on which the agency decision was based,
but that it also respond specifically to any serious complaints parties to
the rulemaking had about that test methodology.
The net result of this trilogy of environmental cases-Kennecott,
International Harvester, and Portland Cement-was to impose an array of
new procedural requirements on agencies seeking to fulfill their
statutory mandates through rulemaking. Agencies were required to
disclose their data and methodology, detail their reasoning, and
respond to comments from aggrieved parties. Soon, Congress began
incorporating these judicially-fashioned requirements into new regulatory
acts, including the 1977 amendments to the Clean Air Act
itself. As Professor Kenneth Davis has observed, during the period of
active regulation, “the frontier [ was] pushed out at times by judges
and at times by legislators, … [each receiving] stimulus from the
ideas of others … and searching for the best. … “31
This era of burgeoning regulation also saw judges on the D.C.
Circuit initiating a spirited debate over the proper scope and intensity
of judicial review of agency actions. One school, identified with Judge
Leventhal, called upon judges to “steep [themselves] in technical
matters to determine whether the agency ‘has exercised a reasoned
28478 F. 2d 615 (D.C. Cir. 1973).
29 1d. at 631.
30486 F. 2d 375 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974).
31 K. DAVIS, ADMINISTRATIVE LAW TREATISE,§ 6:11 (2d ed. 1978).
discretion,’ ” and has truly taken a “hard look” at the problem in front
of them.
Judge Bazelon, by contrast, distrusted the ability of what
he called “technically illiterate” judges to make highly complex
substantive evaluations; his solution, instead, was to adopt procedures,
including those just noted, to ensure a rational decision making
process. He explained that philosophy like this:
Socrates said that wisdom is the recognition of how much one does not
know. I may be wise if that is wisdom, because I recognize that I do not
know enough about dynamometer extrapolations, deterioration factor
adjustments, and the like to decide whether or not the goverment’s
approach to these matters was statistically valid . Therein lies my disagreement
with the majority_:l:i
Ultimately, of course, neither the Leventhal nor the Bazelon view
fully prevailed. The Supreme Court rejected at least some of the
proceduralism advocated by Judge Bazelon in its decision in Vermont
Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 34
holding that reviewing courts were not to order any procedural
requirements such as cross-examination of key testimony above and
beyond those already in the APA or in the relevant enabling statute.
Yet, the rebuff was more formal than real; the bulk of the “procedural”
requirements previously developed by the circuit in cases like
Kennecott and International Harv ester survived Vermont Yankee and
continue today, either in statutory form or as part of the gloss the
court has put on the “arbitrary and capricious” prohibitions of the
APA . Our circuit’s insistence on these procedural requirements, in
fact , led Judge Scalia, in a law review article shortly after Vermont
Yankee, to liken the D.C. Circuit to a rebellious child who, despite a
tongue-lashing from its parents, continued its “progressive evisceration
of the APA” in favor of what he called an ” ‘evolving’ courtroom
scheme” and an “ever-growing common law.”35 So, in fact, a good deal
of the proceduralism of Judge Bazelon and a great deal of the “hard
look” techniques of Judge Leventhal remain; and, I, for one at least,
am unconvinced that they have “eviscerated” the APA; rather, in my
view, they have succeeded in permanently injecting critical elements
of fairness and regularity into administrative lawmaking. Our substantive
“hard look” reviews may not be quite as “hard” today as Judge
Leventhal wanted, particularly after Baltimore Gas & Electric Co. v.
Natural Resources Defense Council, Inc. (“Vermont Yankee II”), 36 where the
:i?See Por tland Cement Ass’n v. Ruckelshaus, 486 F. 2d 375,402 (D.C. Cir. 1973), cert.
denied, 417 U.S. 921 (1974).
:i:1478 F. 2d at 650-5 I.
:,1435 U.S. 519 ( I 978).
:F,Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, i 978 SL’!’. Ct.
R.1-:v. 345, 359.
:o1;462 U.S. 87 (1983).
Supreme Court pointedly reminded us that the resolution of “fundamental
policy questions” should be left to Congress and the agencies.
But a glance at our opinions in any recent year should immediately
reassure fans that the doctrine is alive and in reasonably good health.
The era of heightened regulation also saw the D.C. Circuit leave its
mark on the doctrine of standing in the administrative law area. 37
During the early seventies, the D.C. Circuit led the march for
expanded judicial review for disgruntled victims of agency policymaking,
and the liberalized standing doctrines ultimately adopted by the
Supreme Court reflected its influence. The circuit’s move towards
broader standing actually began in 1966, with the case of Office of
Communication of the United Church of Christ v. FCC,38 in an opinion
written by then Circuit Judge Warren E. Burger. Judge Burger wrote
that “such community organizations as civic associations, professional
societies, unions, churches and educational institutions”39 could challenge
an FCC license renewal-despite the fact that they suffered no
economic injury. In environmental law, the circuit in 1970 became the
first to recognize “biological harm to man and other living things” as
injury sufficient to grant standing to challenge agency inaction. That
determination came in Environmental Defense Fund, Inc., v. Hardin,4° a
case which the Supreme Court later cited with approval in its
landmark SCRAP decision.41 The circuit’s decision in the 1970 case of
Scanwell Laboratories, Inc. v. Schaffer,42 also anticipated the Supreme
Court’s recognition in Association of Data Processing Service Organizations,
Inc. v. Camp,43 of aggrievement under the APA as a sufficient
basis for Article III standing to challenge agency action.
On the basis of this acknowledgedly small sample, let me sum up
what I consider to be the D.C. Circuit’s distinctive contributions to this
:HDuring the same period, the circuit was also groping towards developing a
coherent doctrine regarding ex parte contacts during informal rulemaking. The
court’s internal differences of opinion on this issue were legend. One panel fashioned
one rule: a very strict code prohibiting most such contacts, a rule that came to be
known as the “Home Box Office” rule, after the case which sparked it. The same year,
1977, saw a different panel develop a less intrusive rule in Action for Children’s
Television v. F CC, 564 F.2d 458 (D.C. Cir. 1977), a case that, while technically
distinguishable, pointedly questioned the teachings of Home Box Office, Inc. v. FCC,
567 F.2d 9 (D.C. Cir. 1971), cert. denied, 434 U.S. 829 ( I 977). It took four years more and
an external report by the Administrative Conference for our court to finally settle on
a single, less rigid rule for ex parte contacts in rulemaking. See Sierra Club v. Costle, 657
F.2d 298 (D.C. Cir. 1981).
:?8359 F.2d 994 (D.C. Cir. 1966).
:ii1 1d . at 1005.

10428 F.2d I 093 (D.C. Cir. 1970).
11 United States v. Students Challenging Regulatory Agency Procedure (SCRAP), 412
U.S. 669 ( l 973).
,?,?24 F.2d 859 (D.C. Cir. 1970).
139:1 U.S. 150 (1970).
early stage of modern administrative law. In a time of rapid change
and tumultuous growth in regulatory activity, the court saw its
primary job in reviewing agency action as insisting on fairness,
regularity and reasonableness in agency rulemaking. The quasiprocedural
requirements crafted in the environmental area, the
“hard look” concept, and the new rules of standing were all designed
with those ideals in mind and most remain firmly fixed in our
jurisprudence today. Judge Bazelon ‘s vision of “a new era in the
history of the long and fruitful collaboration of administrative agencies
and reviewing courts”44 was not far off the mark. Our procedural
innovations, largely built upon the APA’s skeletal provisions, expanded
access to 9ur courts for affected litigants while insuring that
once in court parties were guaranteed a reasonable decisionmaking
process aimed at the goal of reasonable results.
The role of the D.C. Circuit, like that of all courts dealing with
administrative law cases, changed markedly in 1980. President Reagan’s
election closed the era of aggressive regulation, and ushered in
an era of unabashed deregulation. Laissez-faire economics and efficient
markets became the basic tenets of political faith for the
Executive Branch. Federal agencies were placed in the charge of new
appointees, firmly, sometimes evangelically, committed to an antiregulatory
philosophy. As their agency decisions reached the court,
the old issue of the court’s proper role on review presented itself in a
new guise: How aggressive should the courts be in insisting that an
agency, whose leaders avowedly seek deregulation, remain faithful to
a statutory mandate formulated in a pro-regulatory era?
Judge Edwards best summarized our predicament . “We recognize,”
he wrote,
that a new administration may try to effectuate new philosophies that have
been implicitly endorsed by the democratic process. Nonetheless, it is
axiomatic that the leaders of every administration are required to adhere to
the dictates of statutes that are also products of democratic decisionmaking.
Unless officials of the Executive Branch can convince Congress to
change the statutes they find o?jectionable, their duty is to implement the
statutory mandates in a rational manner.45
The D.C. Circuit’s first attempt to develop a jurisprudence of
deregulation came just a y ear into the new administration, in State
44 Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 597 (D.C . Cir.
45 International Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795, 828
(D .C. Cir. 1983).
Farm Mutual Automobile Insurance Co. v. Department of Transportation,46
the much-litigated “airbags case.” The case arose after the Department
of Transportation rescinded the rule of the previous administration
requiring the progressive installation of passive restraints in
new car models.
For our court, the immediate issue was how deferential or aggressive
our review should be. The Department of Transportation argued
for virtual total deference: it likened an agency’s decision to rescind to
an agency’s decision not to act in the first place, a decision traditionally
subject to minimal, or no, judicial scrutiny. Others in the case urged
on the court the ordinary level of scrutiny applied to a newly
promulgated regulation. Judge Mikva, writing for the panel, ruled
that because the agency had so abruptly changed course, as opposed
to merely moving from stasis, the court must take a particularly
“searching and careful review”47 of the decision to rescind. “[S]udden
and profound alterations in an agency ‘s policy,” he wrote, “constitute
‘danger signals’ that the will of Congress is being ignored.”48 The
court ended up striking down the airbags rescission as arbitrary and
capricious, because the agency had failed to consider other less drastic
alternatives more consistent with congressional intent. The court
remanded the case to the agency for reconsideration: either to find
better reasons for its rescission or to implement the original rule.
In the Supreme Court49 the Justices faced the same classification
problem that we had: is deregulation more like regulation or nonregulation,
or is it a breed entirely unto itself? The Court decided,
like the circuit, that deregulation was more akin to regulation than to
nonregulation, and thus that the airbag rescission warranted
“normal” scrutiny under the APA, a pitch of review a tone lighter than
the D.C. Circuit’s, but one that nevertheless produced an identical
result: the Supreme Court agreed the rescission rule had to be
remanded to the agency.
An interesting sidelight of State Farm was t?e manner in which the
Supreme Court chose to characterize “normal” scrutiny. For the first
time, the High Court itself referred approvingly to “hard look”
scrutiny, thereby validating that term of judicial art, and its underly ing
philosophy of intensive review, pioneered by the D.C. Circuit.
Since the airbags case, our mission as a circuit in deregulation cases
has been to make sure that agencies seeking to roll back their
1 <;680 F.2d 206 (D.C. Cir. 1982), vacated sub norn. Motor Vehicle Mfrs Ass’n v. State
Farm Mut. Auto Ins. Co., 463 U.S. 29 (I 983).
17 Id. at 2 l 9 n. 17 {quoting City of Chicago v. FPC, 458 F.2d 731, 744 (D.C. Cir. 197 I),
cert. denied, 405 U.S. 1074 (1972)).
1Hld. at 221.
·l!l453 U.S. 29 (1983).
regulations remain true to the intent of the Congress that created and
defined their duties in the relevant areas. One case where we held
Congress’ intent brazenly ignored was the 1983 case of International
Ladies’ Garment Workers’ Union v. Donovan. 50 There we threw out the
attempts of the Labor Department to rescind 40-year-old regulations
restricting the home employment of workers in the knitted outerwear
industry. Again we concluded that the Department had put forth no
credible explanation for why it had not considered lesser alternatives
to rescinding those time-honored rules.
Similarily, in Farmers Union Central Exchange v. FERC, 51 a 1984 case,
we held that FERC had acted arbitrarily and capriciously in failing to
examine or consider any steps short of total deregulation of oil
pipeline rates. Noi only did we find FERC to have violated the APA,
but we also found it to have contravened its own statutory mandate
that it ensure that pipeline rates are ‘Just and reasonable.” That, I
admit, is an awfully fuzzy statutory mandate, but in the court’s view
the rates FERC would have allowed under the guise of deregulation
were so extortionate that they could in no sense be considered
“reasonable,” or demonstrably controllable by market forces alone.
In the cases I have cited, the court checked what it found to be
excessive and unjustifiable deregulatory zeal. But lest you think that
all we did during the deregulation era was to impede agency
initiatives, let me assure you that in the great majority of cases we
upheld the administration’s deregulatory action. Thus, in Office of
Communication of the United Church of Christ v. FCC/i 2a 1983 case, our
circuit upheld most of a sweeping deregulation of the commercial
radio industry, even after imposing “hard look” review. We found that
the FCC’s free-market rationale, which was, in essence, that increased
diversity and competition among radio stations had lessened the need
for FCC control of the market, was sound. But this did not signal total
FCC immunity from judicial scrutiny: just this summer, in the case of
Action for Children’s Television v. FCC/’!> we insisted the FCC provide
some explanation for its sudden switch from a former reluctance to
depend on market forces alone to control excesses in the commercialization
of children’s television.
In discussing earlier the era of burgeoning regulation, I observed
that a primary role of the D.C. Circuit was to put in place procedural
requirements that assured all interested parties would be heard. In
the era of deregulation, one key party was regularly absent: the
Congress that passed the legislation that the agency was now deregulating.
The D.C. Circuit’s role therefore became one of ensuring the

722 F.2d 795 (D.C. Cir. 1983).
734 F.2d 1486 (D.C. Cir.), cert. denied, 469 U.S. 1034 (1984).
“‘2707 F.2d 1413 (D.C. Cir. l 983).
821 F.2d 741 (D.C. Cir. 1987).
agency’s fidelity to the intent of that absent party. We were, if you will,
a trustee for the ghosts of Congresses past. It is, I must say, not an easy
role for courts to play: brandishing the intent of a Congress that left
power decades ago over the agents of a newly elected and popular
president. But our firmness in holding the line against unauthorized
or unjustified deregulation served an essential purpose: it bolstered
the critical constitutional principle that only the legislature makes
laws, and that it is the job of the executive to enforce-not rewrite-
Although, in our deregulatory decisions, our “hard look” review
took on a more substantive gloss-we were more worried now than in
the earlier era about whether the agencies’ results accorded with their
statutory mandate than whether there were procedural flaws in the
process-the experience of the eighties also cemented the continuing
role of reviewing courts, whatever the current political climate, in
insuring that fair agency procedures and tenets for reasoned decisionmaking
remain in place.
W ithin the past few years, the D.C. Circuit has entered a third
period which I will-controversially, no doubt-characterize as the
era of “nonregulation.” Typical cases in this current period involve
challenges of an agency’s decision not to respond to certain problems
within its jurisdiction or to respond in ways that allegedly fall short of
fulfilling the regulatory intent of the statute, challenges of an agency’s
failure to enforce existing rules, or of its failure to promulgate rules
where the statute appears to contemplate rules. In this setting, the –
burning issues for the circuit have become: To what extent are judges
permitted to review agency inaction? To what degree-if at all-can
we force agencies to take action when we find they are defaulting on
their statutory enforcement obligations?
Now some commentators have observed, not illogically I think, that
to prevent judges from reviewing agency inaction while allowing
“hard look” review of agency action smacks a little of the old
distinction between an “act” and an “omission,” a distinction discredited
back when I was in law school. If an agency is outrageously
dragging its feet or ignoring its statutory mandate from Congress,
why shouldn’t that behavior be just as reviewable as, say, the decision
of an agency to fl.out its mandate and repeal existing rules in the name
of deregulation? Nevertheless, there is a strong counterargument that
judges are not capable of reviewing agency inaction involving, as it
often does, allocation of discrete sources and policy prioriLies, at least
where the relevant statute provides no standards by which to evaluate
the agency’s decision not to act. And, indeed, three years ago, in
Heckler v. Chaney,54 the Supreme Court agreed that in certain
circumstances agency decisions not to act should be presumptively
Chaney arose after a number of prison inmates sentenced to be
executed by lethal drug injections asked the court to order the FDA to
ban states from using the drugs since they had not been approved as
“safe and effective” for that purpose. The FDA Commissioner decided
that such action was not the best use of his discretionary
enforcement authority, the prisoners appealed, and our circuit, over
a strong dissent by Judge Scalia, ruled that the Commissioner had
erred. The Supreme Court on certiorari reversed, holding that the
FDA’s refusal to make that particular enforcement call was unreviewable
under the APA. The Court analogized the agency’s decision
whether to initiate enforcement action to traditional prosecutorial
discretion and decided that the APA precluded judicial review of such
action because it was committed to agency discretion by law.
Since Chaney came down, debate has raged within our circuit about
how far the doctrine of unreviewability of agency inaction should
extend. We have decided over thirty Chaney cases, and they continue
to keep coming in. Chaney progeny incidentally illustrate another
function the circuit often performs: to sketch out the contours and
limits of a Supreme Court decision; to define, refine, and differentiate
its application in a variety of situations. We all seem to agree, for
example, that Chaney makes presumptively unreviewable agency
decisions not to enforce, that share the three classic characteristics
identified by the Supreme Court: (1) there are no judicially manageable
standards limiting an agency’s discretion; (2) the agency is a
.. better qualified decisionmaker on the issue; and (3) the decision not to
act closely resembles the historically protected exercise of prosecutorial
discretion. Thus, in Community Nutrition Institute v. Young, 55 our
circuit held that the failure of the FDA to initiate enforcement
proceedings against certain blended corn products was wholly in its
discretion under Chaney. And in UAW v. Brock,56 we held that Chaney
precluded judicial review of the Secretary of Labor’s decision not to
bring civil actions against an employer and its labor relations consultants
for allegedly failing to comply with the reporting and disclosure
provisions of the Labor-Management Reporting and Disclosure Act
(LMRDA). 57
Nevertheless, the farther afield cases have strayed from such classic
nonenforcement decisions, the more skeptically at least some mem-
54470 U.S. 821 (1985).
55818 F.2d 943 (D.C. Cir. 1987).
56783 F.2d 237 (D.C. Cir. 1986).
57 Pub.L.No. 86-257, 73 Stat. 519 (codified as amended in scattered sections of 29
U.S.C.) (1982 & Supp. II 1984).
bers of the D.C. Circuit have viewed claims that Chaney precludes
judicial review. In the same Brock case where Chaney was held to
preclude review of Labor’s decision not to sue under the LMRDA, we
held that the Department could not minimize its new interpretation of
that Act from judicial review by containing it in a nonenforcement
policy guideline. And , in Robbins v. Reagan,58 we rejected a claim by
the Department of Health and Human Services that its decision to
close a federally owned building that for more than a year had served
as a shelter for the homeless was unreviewable under Chaney. In a per
curiam decision in which Judge Robinson and I concurred, the court
observed that the Department of Health and Human Services’ action
“shares virtually none of the characteristics that led the Court in
Chaney to apply a presumption of unreviewability instead of the
normal presumption that agency action is reviewable.”59 The agency
had acted; its action affected individual liberty; and it in no way
resembled traditional prc:isecutorial discretion. Judge Bork dissented
in part; he argued that Chaney preclusion could and did apply with
force outside the nonenforcement context.
In fact, though, on at least two occasions, our circuit has applied
Chaney outside the nonenforcement context. The first such case was
Falkowski v. EEOC,60 where the panel held that the Juctice Department’s
decision not to provide an employee being sued for official
actions with private counsel was unreviewable. The second was Schering
Corp. v. Heckler,<11 where the panel held that Chaney prohibited judicial
review of a settlement agreement that terminated a lawsuit between a
drug manufacturer and the FDA as to whether a new drug fell within
a statutory marketing ban of “new animal drugs” not yet approved by
the FDA. There is, however, in my view a danger in reading Chaney too
broadly to forbid review of too many discretionary decisions of an
agency, and thereby prevent review of substantive legal issues decided
by an agency in the format of “enforcement decisions.” When Chaney
is embraced over-aggressively to foreclose judicial review, it is not the
regulated industry, but rather the intended beneficiaries of government
regulation which usually suffer. Too expansive a reading of
Chaney creates a one-way ratchet, in which industry can seek review of
agency overregulation, but no one can challenge the most egregious
forms of underregulation.
Another discernible, and to some, ominous, trend in the circuit has
been to dispose of more cases at the threshold without ever reaching
their merits. The jurisdictional barriers of standing and ripeness have
“8780 F.2d 37 (D.C. Cir. 1985).
:i!>Id. at 46.
1’0783 F.2d 252 (D.C. Cir.), cert. denied, 478 U.S. 1014 (1986).
“1 779 F.2d 683 (D.C. Cir.1985).
grown measurably higher during the past several years. Many of our
judges sincerely believe that the federal courts are overcrowded, and
that the standing and ripeness limitations embedded in Article III of
the Constitution and codified in the APA were meant to have more
bite than previous interpretations had allowed. In the 1960s and
1970s, the D.C. Circuit was instrumental in broadening the category
of litigants who were permitted to challenge agency action. Today, it
seems, our circuit is tightening up those same standards. Indeed it is
not at all uncommon for our judges to raise standing and ripeness
issues sua sponte even where the government has not argued them.
How far is the court prepared to extend this new stricture? In Hotel
& Restaurant Emplqyees Union, Local 25 v. Attorney General,62 a union
challenged the procedures used by the INS to determine whether an
illegal alien was eligible for political asylum. The union alleged that
many of its members were illegal Salvadoran aliens and thus that it
had standing to challenge the INS procedures both for itself and for
its members. INS responded that for the union to have a valid claim
of associational standing, it must identify particular members who
had been injured by its procedures-in other words, the union must
come forward with names of Salvadoran members who had applied
for and been denied asylum. The union countered that its members
were afraid to apply for asylum for fear ofidentifying themselves as
illegal aliens subject to deportation, and thus that as a practical matter
a suit by the union as the representative of its members was the only
realistic way the aliens could get their day in court. A panel of our
court originally found standing for the union, but the ruling was
vacated and the case reheard by the entire court sitting en bane. That
decision, along with a companion standing case, also en bane, Center
for Auto Safety v. Thomas,63 may provide some clues.
But a series of cases handed down in the past year suggest tighter
rules for associational standing in general. In American Library Association
v. Odom,64 a panel of the court held that a library association had
no standing to prevent the National Security Agency from impeding
public access to the previously accessible documents of a noted
cryptologist housed in a Virginia library. In American Legal Foundation
v. FCC,65 a panel of the court held that a nonprofit nonmembership
m808 F.2d 84 7 (D.C. Cir. 1987).
<,:1 806 F.2d 1071 (D.C. Cir. 1986), vacated, 810 F.2d 302 (D.C. Cir. 1987). Decisions of
the en bane court in both Hotel and Restaurant Employees and Center for Auto Safety were
handed down in May, 1988. See Hotel & Restaurant Employees, Local 25 v. Attorney
General, No. 84-5859 (D.C. Cir. May 20, 1988); Center for Auto Safety v. Thomas, No.
85-1515 (D.C. Cir. May 17, 1988). In both cases the en bane court tied on whether the
petitioners had standing. The en bane decisions appeared too late, however, to be
incorporated into the published version of this speech.
<,?818 F.2d 81 (D.C. Cir. 1987).
6”808 F.2d 84 (D.C. Cir. 1987).
foundation playing a watchdog role to ensure media accuracy had no
standing to seek judicial review of the FCC’s failure to investigate
broadcasts concerning the CIA aired by the television networks. And
in Wilderness Society v. Griles/”6 a panel of the court held that an
environmental group whose members camped on federally owned
lands throughout Alaska could not challenge the Bureau of Land
Management’s recalculation of land grants owed to specified state and
native groups unless it could show that its members used the specific
lands likely to be transferred.
Our circuit’s new “hard look” of standing extends as well to
third-party standing. In Haitian Refugee Center v. Gracey,67 Judge Bork
required an organization claiming that its right to counsel refugees
was injured by government actions taken to keep these refugees out
of the country to demonstrate not merely that it had been injured but
also that such an injury was purposefully inflicted on it by the
government. The Supreme Court’s decision last term in Meese v.
Keene,68 might be read, however, to be at odds with that extra
Tighter rules on associational standing, like aggressive extensions
of Chaney, obviously impact most directly organizations representing
consumer, environmental, and other “public interest” constituencies.
And an increasingly narrow view of causation and redressability in
third-party standing cases restricts even more the ability of such
groups to challenge agency decisions.
In cases where the doctrine of ripeness can be invoked, the D.C.
Circuit may also be moving-albeit more slowly-towards building a
sort of judicial Berlin Wall, with a few of us left doggedly to man
Checkpoint Charlie. The traditional rule of ripeness was fashioned by
the Supreme Court in Abbott Laboratories v. Gardner69 to require a party
who seeks review of an agency action that has not yet been directly
applied to him-for example, an action for pre-enforcement review
of an agency rule or policy statement-to show that he will suffer
sufficient hardship if review is denied to outweigh any institutional
interests the court or agency may have in postponing review.
In the past year, however, some members of our court have
suggested that even in enforcement cases the ripeness doctrine may
require an independent showing of hardship beyond the injury required
for standing. Under this approach, a party who indisputably
has a valid cause of action and who satisfies the jurisdictional
li(,824 F.2d 4 (D.C. Cir. 1987).
1’7809 F.2d 794 (D.C. Cir. 1987).
1’8107 S.Ct. 1862 (1987).
1’9387 U.S. 136 (1967).
requirements for standing may nonetheless be barred from obtaining
judicial review of an enforcement proceeding for lack of a showing of
some extra increment of hardship. This higher standard was endorsed
by Judge D. H. Ginsburg, in his dissent in Consolidation Coal
Co. v. Federal Mine Safety and Health Review Comm’n. 70 If such a notion
gains momentum, it could raise a third major barrier-a companion
to Chaney preclusions and restrictions on standing-to bringing suit in
our circuit.
In the present nonregulation era, then, our court’s contributions
have been mainly in the area of insulating agency inaction from
judicial challenge through the imposition of tougher rules on standing,
ripeness and i:eviewability. We have even been reversed a few
times by the Supreme Court for being too stingy. 71 In an era that
celebrates ‘Judicial restraint” (however variously defined by its advocates),
it is probably inevitable that the D.C. Circuit has taken the first
cut at reducing the extent to which parties can use the traditional tools
of administrative law to prod agencies into action. Yet, a few of us
unrepentants continue to believe that too restrictive access rulings,
even when billed as exercises of judicial restraint, are in reality
deviations from Congress’ intent to grant broad access to judicial
review for aggrieved groups. Our circuit-this will come as no
surprise-is hardly a monolith, the lines of contest are well-drawn,
and the stage is set for resolution by a higher authority.
Let me wrap up with some brief thoughts about the D.C. Circuit’s
ongoing contributions towards resolving the ultimate administrative
law issue of our time, indeed, of any time: how to derive a universal
rule, applicable in all circumstances, that will determine with exquisite
certitude just how far-and no farther-the courts should defer to
agency decisions. In this brief and impressionistic sketch of three
phases of the modern history of the D.C. Circuit, we have seen the
court wrestle time and again with this dilemma.
We witnessed the debate first in the early seventies, when Judge
Leventhal counseled judicial “diffidence.” In time, the lyrics changed,
the term “diffidence” gave way to “deference,” but the underlying
melody remained the same. In the era of burgeoning regulation, the
debate over deference spawned the aggressive proceduralism of
70824 F.2d 1071 (D.C. Cir. 1987). But see Payne Enterprises, Inc. v. United States, 837
F.2d 486 (D.C. Cir. 1988); id. at 495 (Ginsburg, J., concurring).
71 See, e.g., Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987); UAW v. Brock, 477
U.S. 274 ( 1986) (boLh rev ersing D.C. Circuit for taking too strict a view of the standing
Judge Bazelon, and the hard-nosed substantive review of Judge
Leventhal. In the era of deregulation, as exemplified by the airbags
case, the debate hovered over the level of scrutiny to be given
agency actions to see if they comported with congressional intent.
In the current period of nonregulation, the battleground has
shifted to a debate over how high the barriers to court review will
be drawn, and how absolute is Chaney’s presumption of unreviewability.
The judges of the eighties who read Chaney expansively to
confer almost total deference to agency discretion, may well be the
philosophical descendants of the judges in the early seventies who
disdained “hard look” review for a more deferential “soft glance” at
agency action.
What will our contributions be to the debate in the coming years?
One, I am satisfied, will be continued adherence to the “hard look”
doctrine. Aside from marginal questions, there is no concerted
sentiment I am aware of in our circuit for deviance from that
enduring staple, once we reach the merits of a case. We still apply the
doctrine fairly regularly to assure that the agency has examined all
relevant evidence, that it has explained its decision in detail, that it has
justified departures from past precedent, and that it has considered
reasonable alternatives. The “hard look” doctrine is a proud contribution
of our circuit, ratified by th,e Supreme Court, and with that
Court’s guidance we will continue to refine it.
The most intriguing development in “hard look” doctrine,
however, has been the frequency with which our court now applies
it not to tell an agency that its methodology or procedures were
wrong-so, “go back and start again”-as in the days of Judges
Leventhal and Bazelon, but rather to tell an agency that it has not
sufficiently explained why it chose the course it did-in short, “go
back and rewrite your reasons.” Indeed, in just under a third of the
direct · agency appeal opinions this past year (April 1987-April
1988) in which we reversed or remanded (58 reversals or remands
out of a total of 159 opinions), we did so on, the basis that the
agency’s rationale was inadequate. The most common deficiency we
find is the agency’s failure to explain “departure from prior
An aside here: As case law proliferates, it gets harder and harder to
keep precedents uniform and consistent, not just in the agencies but
in our own court as well. Our en bane process-designed for that
purpose-has not proved up to the job. The Supreme Court has often
had to review and reverse. a D.C. Circuit case which was itself
inconsistent with other circuit precedent, and thus logically should
have been but was not dealt with by our internal court en bane
procedures . Judie Bazelon’s promise in the 1970 Court Reform Act
Hearings of a “unified and consistent jurisprudence in Federal agency
matters”72 was inspirational but never quite attainable.
But back to the agency’s problems: Remand on the basis of
“inadequate agency rationale” provides a kind of nice comity among
different branches of government. It says “No” to the agency, yet
gives it a second chance with the court’s guidance to reach the result
it thinks proper. And it should help to silence the more raucous
charges that the courts are usurping agency policymaking prerogatives.
There is no question that this technique engenders some delay,
but in pioneering and popularizing a more subdued approach to
judicial oversight of agency policymaking, the D.C. Circuit has tried to
contain the ever-present tension between agency independence and
judicial review of agency compliance with legislative intent.
Finally, some thoughts on the D.C. Circuit’s contributions to deference
in statutory interpretation. The common wisdom in our court,
and others, used to be that on matters of statutory interpretation,
courts generally had the last word. There were exceptions, to be sure:
for instance, in National Wildlife Federation v. Gorsuch,73 back in 1982,
we had counseled deference to agency interpretations when an act’s
language and history lent support to neither side’s interpretation. But
generally the assumption was that agencies’ special preserve was facts,
courts’ was law, and that each was entitled to great deference in its area
of expertise. Then came Chevron, 74 the Supreme Court’s reversal of the
D.C. Circuit’s refusal to accept EPA’s bubble theory, and its admonition
that in cases of statutory ambiguity, the court must defer to the agency’s
reasonable construction. Chevron at first seemed to create a curious
inversion of the traditional roles of courts and agencies: While courts
could take a “hard look” at agency policy determinations, they were
forced to defer in close cases to agency legal interpretations. And while
Chevron itself left many questions unanswered-for instance, whether
all ambiguities, of whatever kind or degree, must be left to agency
resolution-our circuit initially took a fairly rigid approach to the case,
deferring to agencies in a wide array of situations. This highly deferential
approach peaked in the case of National Fuel Gas Supply Corp.
v. FERC,75 where the court held that Chevron deference applied not
only to agency statutory constructions, but even to an agency’s interpretation
of private contracts involving ” ‘pure’ questions of law.”76
72Legi,slative History: D.C. Court Reform and Criminal Procedure Act of 1970 at 1182
(Senate hearings).
n593 F.2d 156 (D.C. Cir. 1982).
71 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
( 1984) .
75 811 F.2d 1563 (D.C. Cir.), cert. denied, 108 S. Ct. 200 (1987).
76/d. at 1569-70.
Today, however, our court seems to be inching back towards a more
balanced stance, allowing greater space for judicial legal interpretations
and moving away from complete deference to the agency.77 In
part we are emboldened by the Supreme Court’s decision last term in
INS v. Cardoza-Fonseca, 78 which held that the court should decide for
itself the “pure question of statutory construction”
involved in the
decidedly ambiguous situation of whether two provisions governing
eligibility for asylum in the same refugee act were meant to encode the
same standard. That holding clearly invited greater judicial flexibility
than did our initial, strict interpretation of Chevron. Interestingly, in
moving toward a narrower, less sweeping view of Chevron we were not
playing our customary role as flagship among the circuits. The Fifth
Circuit had earlier viewed Chevron not as laying down an all-or-nothing
rule of deference in the absence of clear congressional intent, but
rather as directing a close examination of a number of factors, including
the primacy of agency expertise, the thoroughness of the
agency’s deliberation, and, most important, the indicia of congressional
intent to reserve the decision to the agency. That is the direction,
it appears, in which our circuit is now moving. There is, parenthetically,
a lesson in humility here for our circuit. We may be the flagship, but
even flagships sometimes go off course. It is a sign of the system’s
health when on those occasions others swing past or take the lead.
You may have discerned that I am a movie addict, so I’ll close, as I
began, with a movie reference: Some of you may recall the scene at
the end of “The Candidate” where an exhausted Robert Redford,
having against all odds won his long-shot race for the United States
Senate, turns bewildered to an aide and asks, “Now what do I do?”
There are moments, not infrequently I might say, when judges on the
D.C. Circuit feel the same way: having literally drained themselves dry
to resolve some vital issue of the day, they wonder whether it scarcely
can matter, for it is likely the Supreme Court will hear the case and as
likely reverse as affirm. It is then that we have to remind ourselves, as
all circuit judges must, that our job goes far beyond previewing the
Supreme Court’s ultimate judgment. It is our unique task to frame
the difficult issues, to ventilate the big and small ideas, to bring to bear
our special, immensely diverse knowledge and viewpoints, and above
all, to strive always for fairness to litigants and faithfulness to the
legislature and the law. That is our job; our distinctive contribution to
administrative law. I like to think we do it reasonably well.
77See, e.g., UAW v. Brock, 816 F.2d 761 (D.C. Cir. 1987).
78107 S.Ct. 1207 ( 1987). But see the differing interpretations of Cardoza-Fonseca in
Justice Brennan’s majority opinion and Justice Scalia’s concurring opinion in NLRB v.
United Food & Commercial Workers Union Local 23, 108 S.Ct. 413 (1987).
1d. at 1221.
Thank you very much.
MR. SusMAN: Thank you very much, Judge Wald. We have heard
three chapters about burgeoning regulation, deregulation, and nonregulation;
perhaps we should book Judge Wald to return in a few
years to tell us whether chapter four is going to be reregulation or
President Verkuil will lead off our comentators.
PRESIDENT VERKUIL: Thank you, Tom. Chief Judge Wald, members of
the panel, members of the Section, and ladies and gentlemen. It is a
pleasure to have this opportunity to talk about the distinctive role of
the D.C. Circuit, because I think especially those of you in the
academic community share with me the feeling that without the D.C.
Circuit, we would be in real trouble indeed. We might well be out of
work, so we all have a special place in our heart for the court.
When the question is asked, “What is the distinctive contribution,”
you cannot help but think about several factors-some of which, of
course, the Judge has mentioned, and others come to you as you mull
it over.
Obviously, as the Judge said, “being there” is important. My
approach is to remember the words of the real estate broker who says,
“What are the most important things when you buy a house: location,
location, location.” That is what the D.C. Circuit has, and that is where
you begin. The facts are that this is Washington, and what we are
talking about is the federal government in action, and the D.C. Circuit
is bound to be at the center of activity.
But the court certainly has much more than location going for it.
While the D.C. Circuit has in a sense had greatness thrust upon it in
administrative law, it has also done a lot to earn its reputation.
Over the years, this court has been the logical center of
administrative activity. You go back to the famous Walter Logan bill
that never quite became law. It was provided in that bill, in order to
protect against the allegedly runaway agencies of the New Deal, that
anyone substantially interested in the effects of an administrative
rule, which was a very broad standing requirement indeed, could ask
the D.C. Circuit to determine whether the rule was constitutional or
in conflict with a statute, and they could do that at any time they
Louis Jaffe said that this bill had the effect of moving the seat of
government to the D.C. Circuit, and that is about as high a compliment
as one could make, I suppose. More recently, the Bumpers
Amendment advocated an active judicial review of agency actions on
questions of law. It also placed greater emphasis on centering appeals
in this circuit. There have been countervailing pressures over time, as
the Judge mentioned, when particular judges on the court aggravated
members of the Congress. However, basically, government action has
aanlwda yins jurenvcotlivoend a acrtioounns dc othmism ceinrccueidt. iVne tnhuee d sitsattruictte sc oeustratbs lcisohn fithramt fiat.c t Now, why are these judges different? I start first with the observatainodn
stihnacte t ihte i sD niosttr aic st toatfe C, iot ludmoebsi na oist hdaifvfee rteon wt obrercya uabseo uitt isse nnoatt oar ss taanted, i ·
something known as senatorial courtesy. Over the years, in terms of
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tthoge eltahwe. rT ihna at np oesxscibitiilnitgy, f”ohro ctr” ecaitrivcue ijtu, daincdia ls pseelnedct itohne isri mlipvelys ddoeefisn ninogt
exist in any other circuit: indeed, it can be found only in the United
States Supreme Court. i
D.TC.h eCrier chuaivt es beeleecnti osintu aptrioocness ws. hOenn es ennaottoarbsle h aevxea mplpaylee dw aa sr oilne i1n9 t6h2e,
wwhanente dS etnoa ctoorn fiEramst laanndo thtoelrd jJuodhgne Kbeenfonreed hy,i si nc oemffmecitt,t eteh,a th ief’ dh eb eetvteerr pgerot mSkoetelldy tWo rthigeh Dt .oCu. tC oirfc uLiot.u Wisiaitnha t.h Saot ,a cint, S19en6a2t,o Jru Edagsetl aWndri gahsstu wreads this court of the tenure of one of its most dominant members over the
lasBt utht irhtoyw-fi vdeo y weaer sp. rove distinctiveness in roles of circuit courts? I sintavrotlevde ttoh ec oDu.nCt. uCpir tchueit ;c aasfetesr i na wthhei laed tmhaint igsotrt attoiv bee l aaw p ocianstel ebsoso akcst itvhitayt, since there were so many. So, I hope you will take it on faith that
tsroemateitsheisn gd elrikivee hfarlof mth et hoisp icnoiounrts. inIt sm ionsflt uoefn tchee ims apjroor fcoausnedbo fookrs tahnadt reason alone.
wrIinte rasd oduittsioidne, othf eth jeu jdugdeisc iaoln c otnhties xct.o uI rstu ravreey erdem th,aer kwarbitlyin gpsr oolfi fiacll oasf
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during their tenure as judges, legal articles and academic books that would put most academics to shame. One must conclude that they are I
lnaowt ionntelyll ewcoturkailnlyg aosn w oeplli. nIi otnaks,e b tuhta tt haesy aa preo switoivrek icnogm omn esnhtaapryin ug ptohne 1 tdheemiro ncosmtramteit mtheant t ktion dla wof. Oprnolyd uac thivaintyd. fuTlh oisf pjurdodgeusc tiinv itoyt hinerd icciartceusi tas Ilongstanding commitment to and full intellectual involvement in the Imajor legal questions of our time. ·\ funInc ti1o9n7 0o,v werh tehne t hDe.C C. oCuorut rRt eoofr Agapnpiezaatlsio, nit sA dcot cekliemt icnhaatnegde tdh ed rraemvieawtically.
Some of the cases we remember well from law school, such as
. .!
Judge Bazelon’s Durham decision and Judge Wright’s Walker-Thomas
Furniture80 case were a product of this court’s unique general jurisdiction
responsibilities. This no longer being the kind of thing the
court does, has meant that all of the creativity expressed in those cases
had to be turned to administrative law alone, which sometime could
not bear up under the pressure.
The influence of Judges Wright and Bazelon is worth noting on
this point. I credit Judge Bazel on with thirty-five articles over his
career, and Judge Wright with thirty-six. That is pretty good
competition right there. They did much during this period of
stability that Judge Wald mentioned to define the role of the D.C.
Circuit in many ways.
In addition to Judges Bazelon and Wright, other judges of that
period, such as Harold Leventhal and Carl McGowan, contributed
enormously to the quality of thinking that goes on in the law schools
. and, themselves, set examples as jurists of the first order. Judge
Leventhal, for this writer as a newcomer to the field, had a particularly
strong influence, and I think his loss to the court at such a young
age was a great setback. I remember so well an observation by Judge
Leventhal during a discussion of EPA cases. He said, “You know,
complexity has a bright future.” I often recall how prescient, as well
as felicitous, that expression was. The court has changed over the
years and, by and large, the new judges have come on and done very
well; they have kept up the standards.
There is something, also, to be said for the national stature of the
court, in terms of how it operates, how the counsel are treated, and
how they respond. It is our only national bench, other than the
Supreme Court of the United States, because, as I have suggested, the
judges who are selected for this court are not bound by geographical
limitations in the same way that the judges of virtually every other
circuit are, and so you get this interesting mix.
In addition, you have this bar in the District of Columbia, which is
committed to the administrative law field in a way few other bars are
in their respective circuits. It is as close as we come, really, to having
something like the English system, where a select group of lawyers
appear frequently before the court, deal with recurring problems, get
to know each other, and gain real confidence in and respect for each
other. As a result, as Judge Wald said, counsel take outrageous stands
reluctantly, because they know they have to return.
This sustained interaction is a very important reason why this
circuit is distinctive, why its opinions are unusually rich and influential.
Because of this relationship, it is not surprising that some have
said oral arguments in the D.C. Circuit are as good as in the Supreme
80William? v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965).
Court. I suppose you might even argue that the D.C. Circuit arguments
are stronger, simply because you do not have what might be
called the “grandchild factor” that operates on counsel who appear in
the Supreme Court; namely, “I have to tell my grandchildren I argued
in the Supreme Court in the United States.” Assuming that notoriety
does not extend to the D.C. Circuit, you get fewer counsel who are
there as tourists as well as advocates.
The Court Reform Act certainly intensified the focus on administrative
action. Something like 85 percent of the docket deals with
administrative action. That makes this a de facto administrative law
court, and commits the judges to a longstanding working out of
particular problems. Over the years, up through the mid-seventies,
the court really was the hero in all of this business about the
relationship with the agencies. In the New Deal period, of course, the
courts were seen as a way to protect against the excesses of administrative
agencies; and, through the fifties, sixties, ·and seventies that
same kind of notion still motivated counsel, though perhaps not as
Something did happen to the court in the late seventies, the role it
played in terms of supervising agency action began to be questioned.
The eagerness, the thoroughness with which the court explored
regulatory activities, was itself put under scrutiny. The case, of course,
that brought it all to a. head was the Vermont Yankee decision, the
implications of which are still being worked out. Vermont Yankee,
basically, was the Supreme Court’s way of saying to the D.C. Circuit,
“Let’s take it easy, you have gone very far, you have expected a lot of
the agencies, they have done what they can and, at some point, things
have to move on, and something less than perfection might be
demanded of the administrative process.” The focus of concern was
process and procedures, but the substantive review standard also
came into question. The “hard look” doctrine survived scrutiny; that
is, the Leventhal view prevailed over the Bazel on view, to ref er back
to the famous debate in the Ethyl81 case. “Hard Jook” review is still
around and it has a role to play, but the focus changed a little bit.
People have begun to think that maybe judicial review is not the only
way to solve some of the basic problems of regulation. The D.C.
Circuit has really been somewhat on the defensive since 1978. The
faith in judicial review is no longer absolute, but it is far from dead.
Today, the appointments to the court have pointed in what seems to
be two directions, and so it is a little bit hard to know what the D.C.
Circuit represents, unless you know what panel sat on a case. That
contention has provided energetic debate, which is fine for the
81 Ethyl Corp. v. EPA, 541 F2d 1 (D.C. Cir.), cert. denied, 426 U.S. 941 (1976).
classroom, although it must be slightly frustrating for counsel trying
to predict outcomes.
It seems, though, that if everyone is working together and committed
to the field, then most of these problems will be worked out.
Ve rmont Yankee is an important precedent, but it should not be
overread. After it, some of the judges backed off a little bit, and I
believe Judge Wald has it right in saying that some cases had gone too
far. Certain cases in her paper today strike me as very interesting.
First of all, Chaney, and the business of whether prosecutorial discretion
can be reviewed. That really was a foolish case, on the facts, and
I do not think it is wise to make too much of it. To have to find a drug
safe and effective for lethal injections was not a proposition that one
thought would have received serious attention. Indeed, it did not, and
then Judge Scalia’s dissent in that case helped make his reputation.
How far you want to take a proposition, based on those facts, toward
a general standard of nonreviewability is questionable. I find it .
difficult to believe that the Chaney case can be all that its proponents
want it to be, simply because of the context in which it arose.
Another case that might disappoint its proponents is the standing
case Judge Wald mentioned, Block v. Community Nutrition Inst. 82 That
was a judge Scalia dissent as well, which became the law in the
Supreme Court. Block, you recall, is the case where standing was
denied to a consumer who challenged milk pricing under the Agricultural
Marketing Agreement Act. 88
Basically, the case dealt with the zone of interest protected by the
statute. As a practical matter in milk pricing, we all know that the
purpose of the legislation was not to protect the consumer, but to
exploit the consumer. So, therefore, it is a little silly to think that they
ought to have standing to determine whether they should be exploited.
In this sense, I think the context is also limiting, much like the
prosecutorial discretion context was in Chaney.
In Clarke v. Securities Industry Ass’n,84 where standing was granted
and the comptroller’s decision was upheld-reversing the D.C. Circuit’s
position-you get a feeling that maybe Block is being rethought.
In Section II of the Clarke opinion (in which three Justices refused to
join), there is a very broad-based standing discussion which endorses
the zone of interest test in a big way. Justice Scalia did not participate
in that case but, if we can assume that the three Justices who refused
to go along were uneasy about expanding the standing test back to the
earlier zone of interest standard, I think we might see a shift here,
82467 U.S. 340 ( I 984).
8-iAgricultural Marketiug Agreement Act of 1937, ch. 296, 50 Stat. 246 (codified as
amended in scattered sections of7 U.S.C.)(1982 & Supp. III 1985).
81479 U.S. 388 (1987).
with a majority of the Court now saying, through Justice White, that
the test of standing is not meant to be especially demanding. It may be
that even in an environment where litigation avoiding devices are
more popular, the Supreme Court is going to draw some lines and
stop moving in that direction. It will be interesting to see this
proposition play out.
Well, I cannot close without questioning one of the Judge’s comments
about the value of rationality review, wherein she does say that
we really cannot argue as long as the court is talking about trying to
understand what the agency did. On the surface, that sounds like a
more or less neutral position, that the court is just trying to understand,
and it really does not commit the agency to a course of action,
because the agency is entirely free on remand to go back to its prior
decision. If you press that proposition too far, you end up with a
situation where you are affecting outcomes. There is an opportunity
cost to remand that has to be considered: what about the lost time,
money, and regulatory activities that are stymied in the interim? The
failure to regulate is an important public interest matter, as well as the
nature of the regulation delayed.
It is not fair to view rationality review and remand with the
innocent assumption that judges are just trying to understand the
case. The questions, if you will, are: How dense are our judges, and
how much do they have to understand to be able to accept an
agency decision as satisfactory for purposes of moving the case on?
That proposition is always there, and it is a very hard one to
measure. I do not believe it is one that you can articulate a
successful way around. It is a question of what the judges feel, how
far they think they need to go. The issue is, even if they are not
satisfied with counsel’s argument, or if they are not satisfied with
the way that the case was written up by the agency, nonetheless,
assessing the regulatory context, it is better to move on than it is to
go back. It may be unarticulated in decisions, but that has to be part
of the calculation or, otherwise, we are really working in a world
where we can do considerable damage to the regulatory process
without even realizing it.
If the D.C. Circuit is now a court which, if not pulling in two
directions, is at least working with strongly different views on some
basic issues, it still has many of the characteristics we have long
admired. The quality of appointments remains unusually high, which
has something to do with the way appointments are still made. It
strikes me that we owe the D.C. Circuit and its judges an awful lot for
developing a field of law that we labor over.
Distinctive it is, and valuable it is, and we thank the judges for
keeping all of us on the academic side fully occupied.
Thank you.
MR. SusMAN: Thank you, President Verkuil. The next speaker, as I
indicated in the introductions, is not from Washington and not a
lawyer. That should be a special pleasure and perspective for all of us,
I am sure.
Professor Rabkin.
PROFESSOR RABKIN: Thank you for that introduction. That is a
difficult billing to live up to, but I will try to speak to you, indeed, as
an outsider.
President Verkuil said that academics are particularly grateful to
the D.C. Circuit, because they would be out of a job if the D.C. Circuit
were not quite so prolific. He used the phrase “academics,” but I thing
he must surely haye meant academic scholars of administrative law.
People who study politics would still have some things to study, at
least, even if the D.C. Circuit did go out of business.
Like everyone else here, I found Judge Wald’s paper extremely
interesting and unusual. I guess one of the things that an outsider can
claim as a comparative advantage is that if you are outside of
Washington, you read papers by judges more carefully, because you
have fewer chances to talk with them and hear gossip about them.
And, speaking as an outsider, Judge Wald’s paper struck me as an
unusually straightforward and candid statement from a judge.
Still there were two things about it that did seem to me rather
strange, strange in the sense of formalistic, other-worldly, not quite
First, in a very long paper about the work of the D.C. Circuit, we
did not hear anything about who the litigants are. It was all about
assuring regularity and assuring fairness, and assuring various other
things, and we were never told on whose behalf these assurances were
being delivered. Who is benefiting from this? W ho are we doing this
The second thing that seemed to me rather strangely formalistic
about it was that the D.C. Circuit’s reasons for acting kept coming
back to “the law.” The D.C. Circuit has to ensure that the law is
upheld, the paper keeps saying. At one point Judge Wald even says
the D.C. Circuit is a trustee for the ghosts of Congresses past. I always
thought the ghosts of Congresses past became committee chairmen or
lobbyists, but that in any case they were perfectly well able to look
after whatever interests they had and did not need judges to be their
trustees. That is one thing that struck me as a little strange about the
general claim that what is being done here is just enforcing the will of
Congresses past.
Another thing that struck me as a little strange about this claim is
that it does not quite seem to jibe with the opinions that I have read,
or the treatment of some of these opinions on appeal, where the
Supreme Court says, “No, that is not what Congress intended, you
have got that wrong.” It seems to me the D.C. Circuit often gets
Congress’ intent wrong, and that is notable for a court that claims to
be grounding all of its decisions on its obligation to fulfill the will of
those ghosts of the past.
Judge Wald, herself, says at one point in the paper, “I am unconcerned
that the court has eviscerated the APA.” What about the will of
the Congress that enacted the APA? The ghosts of 1946, what about
them? Do they not deserve to have their will upheld?
To come to my most serious concern, however, this view of the
court’s role just does not sound right to me. It does not sound
commonsensical, and common sense is about all you have to rely on
when you are outside of Washington. Anyway, it does not sound like
common sense to me to say that because Congress has passed a law, we
have got to see that the will of Congress is fully and perpetually
upheld. It seems to me there are all kinds of laws that we are happy
not to have enforced. I did not hear anybody complaining that the
antisodomy law in Georgia was not being rigorously enforced. In all
the controversy we have heard recently about the Griswold85 case, I
didn’t hear anyone complain that Connecticut wasn’t enforcing its law
against the use of contraceptives.
There are lots of laws which, at least in retrospect, come to be
thought a little bit silly, and some are thought quite silly. There are lots
of stages in between but, in general, it seems to me it is not our normal
assumption that every law must be enforced to the full extent.
Dean Calabresi of the Yale Law School has written a very interesting
book, A Common Law for the Age of Statutes,86 in which he talks about
this as a general problem, that statutes become obsolete.
A number of people have said in defense of decisions like Griswold,
that it is the special job of the courts to clean out the statute books, to
get rid of obsolete statutes that no one is willing to have enforced any
more, but which some ornery minority group prevents the legislature
from repealing. I do not know how you would find out if a law had
become obsolete or had outlived itself, however, unless the executive
had some discretion not to enforce it, to underenforce it, to reflect
that the community does not have as much enthusiasm for this
measure as it once did.
It seems to me that Judge Wald’s argument, at least regarding the
need for the D.C. Circuit to be vigilant in preventing too much
deregulation, or preventing too much nonregulation, assumes that
any time a law is enacted, it has got to be enforced to the full and the
D.C. Circuit has the distinctive responsibility of seeing that that is
done. That really does not make sense to me.
85 381 U.S. 479 (1965).
To be fair, the paper does talk about several D.C. Circuit decisions
which suggest that, well, you cannot take this demand for unchanging
enforcement literally; of course, you have to allow some room for
changing views and changing circumstances. But when you are
allowed to take these realistic considerations into account is a little
puzzling from the cases. It is a little puzzling even from the cases that
are mentioned in Judge Wald’s paper.
In the State Farm case, for example, the D.C. Circuit said, “You
cannot repeal the airbags rule, because that rule was just promulgated
by the previous administration, and if you make a change so abruptly
as that, it is highly suspicious and questionable. You certainly should
not be making cha11-ges abruptly.”
On the following page, Judge Wald mentions the Vermont home
knitters case87 where the D.C. Circuit said, “This rule has been on the
books now for forty years. After forty years, you cannot just overturn
the rule.” It seems that you are allowed to make a change, but it has
got to be somewhere in the middle period between one or two years
and forty years. Maybe you can change a Nixon era rule during the
Carter administration, or you can make changes after seven or eight
years when the political planets are in just the right order. But it is
puzzling for the ordinary person to figure out how this political or
astrological formula really works.
The underlying reason for doing this, as Judge Wald says, is that
if we do not allow people to bring these cases complaining about
deregulation or nonregulation, or any questionable change in
policy, then we will have a one-way ratchet, by which industry is
allowed to challenge over-regulation, but there is no challenge
possible to under-regulation, even, as she put it, “egregious”
It seems to me that lack of symmetry is in life. I mean that lack of
symmetry is not a mere consequence of judicial doctrines that might
as easily be otherwise. Start with the Supreme Court’s decision in the
Chaney case, which may be a peculiar context for illustrating the point,
but it seems to me to involve an important principle, namely the
principle of prosecutorial discretion. We do not allow people to come
forward and say, “That person, he is trouble, prosecute him, and I
want to sue the prosecutor to make sure that that person is sent to
jail.” Everyone feels very uncomfortable about allowing courts to
order prosecutions in individual cases, and everyone accepts at some
level that there is something important about prosecutorial discretion.
It seems to me that most of the subsequent cases trying to interpret
Chaney and decide how far to extend it really turn on the question of
87 International Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795 (D.C. Cir.
whether some other matter is or is not like prosecutorial discretion, is
or is not like trying to force the prosecutor’s hand in an individual
Surely, there is an underlying asymmetry there. The victim of a
prosecution, the defendant, can always challenge the prosecution. He
can always challenge it, even though there is only one person
involved, and the reason this is okay is that the one person is himself.
He is defending himself. If you have your own rights at stake, of
course, you are allowed to assert them.
The people who are bringing cases like Chaney are saying, “We have
a right to some general public policy,” and the doctrine since Chaney
-which, I think, is broadly consistent with what it has been in recent
decades, the general doctrine is you can lay a claim on the general
policy. You can complain about egregious deregulation or nonregulation.
You just cannot do it in any particular case.
There is that asymmetry because in the one case people are
admittedly being selfish. They are admittedly saying “It is my property,
it is my company, it is my right, leave me alone.” You are allowed
to be selfish in that situation because you are dealing with your own
In the other case, people are coming forward and saying, “Public
authority should be exercised on my behalf. A lot of other people out
there should be regulated, controlled, affected, and that should be
done on my behalf.” You do not want to do that in an excessively
selfish way, so you want to do that in a somewhat more vague and
general way. Still, it seems to me when you look at these cases, there
are particular interest groups coming forward saying, “We were
promised something by Congress and now we want to get it, and now
it should be delivered.” I think there is no entirely satisfying way of
deciding when people should get what they think they were promised
by Congress, even though a lot of time may have passed, even though
circumstances may be different, even though other people may sense
that right from the beginning there was a bad promise or a bad
bargain involved in the relevant congressional measure.
In her paper Judge Wald says it is unfair for people to say that the
D.C. Circuit is particularly partial to public interest groups. And I
agree the court is not particularly partial to public interest groups. I
think it is particularly partial to all kinds of special interest groups that
think they have won some benefit in the administrative process or the
legislative process. A lot of those people are businessmen. In fact,
most of them are businessmen.
If you look, for example, at that Vermont home knitters case, it is a
very curious case. The Labor Department for forty years has had a
rule on the books saying you may not work at home. There are
perfectly nice housewives in Vermont who want to make ski caps at
home, and the International Ladies’ Garment W orkers’ Union says,
“No, that will be bad, that will undermine our union workers who
want to do this in factories, and we should not allow competition by
people doing this at home.”
If you look at this case, yes, it is essentially the union which has its
stake, its economic stake, and gets the D.C. Court of Appeals to say,
“You should get your benefit from the government, and too bad for
the housewives who find it convenient to work at home.” But, look at
it again, it is not just the union. If you want to be sentimental about
unions, fine. But it is not just the union, after all; it is the manufacturers,
too, who want the Labor Department to squash their competitors,
if the competitors employ non-union home workers. There are
lots of business gro?ps that come in seeking special benefits from the
government. They often get them. It is a little bit strange to think that
the D.C. Court of Appeals should be there as a sort of general
monitor to see that everyone gets whatever benefit they were able to
wring out of the government at some point in the past.
Perhaps fifty years ago many people sincerely believed in the New
Deal philosophy: “Let every interest group come forward, let every
interest group seek some special benefit from the government, and
the government will be able to work this all out into a coherent and
harmonious package where everyone will get what they want and it
will all be for the best.” I do not think there are a lot of people who
believe this anymore, however, which is one of the reasons why there
has been a movement for deregulation. I think it is hard today to deny
that a lot of these bargains should be changed, will have to be
changed, inevitably are going to be changed. It is hard in this context,
I think, very, very hard, for any court, even with the best will in the
world, to decide whose bargain should be enforced and whose should
I do not mean to point the finger in all of this and say, “The D.C.
Circuit is the culprit.” In the end it is certainly true that the Supreme
Court has endorsed this general approach, as illustrated by the
standing cases that Judge Wald talks about. Instead, the most important
cases in establishing this view of the judicial role are the Su pre me
Court standing cases.
I think it is not surprising that there is division on the D.C. Circuit,
as Judge Wald notes, and that this division turns out to be, at this
point, a pretty partisan division. The issues that are at stake, at least
in many of these cases, are pretty straight-out partisan issues. You
either are very sympathetic to government protection for particular
special interest groups, or you are not.
Let me, in concluding, try to put this in a larger perspective. I think
a lot of the divisions on the D.C. Circuit right now represent divisions
between those judges on the one side, who are most concerned to see

that particular interest groups get what they “deserve” (meaning
whatever they may have wrung out of legislative or administrative
bargaining in the past), and on the other side, those judges who are
more sympathetic to executive power. And, of course, this has
something to do with Democrats and Republicans: judges who are
more sympathetic to executive power tend to be those who favor the
current, Republican executive.
I think it is not altogether irrelevant, however, and not altogether
partisan, to point out that this struggle, between people who are
sympathetic to executive power and people who think there is a
special need to protect particular interest groups, was one of the
struggles put to the voters in the last presidential election. In the
immediate aftermath, when Mondale seemed so utterly repudiated,
many analysts said that he had the stigma of being too soft or too
compliant with, too serviceable towards, too many special interest
groups; President Reagan, it was said, had more appeal to the broader
public. Well, now it seems that the interest groups have had their
revenge in the way they have trounced President Reagan’s most
recent judicial nominee, Robert Bork. Perhaps, however, to return to
the point I began with, this simply shows that interest groups continue
to have lots of friends in Congress. And perhaps this should make us
all question again whether these interest groups really need the D.C.
Circuit to provide them with additional help in pursuing their policy
goals in Washington.
MR. SusMAN: Thank you, Professor Rabkin.
We have talked a lot about conflict between the Court of Appeals
and the Su pre me Court. I think we do need to remind ourselves that
there is recognition to be given to district courts and district court
judges, too.
It is said that it is the lot of district court judges to decide cases
wisely, fairly, and rationally. That is not to say that court of appeals
judges should decide cases unwisely, unfairly, or irrationally, for to do
so would be to usurp the role of the Supreme Court.
Our final commentator is Mr. Lloyd Cutler, whom we will now hear
from. Then we will give Judge Wald a brief time for reply and, after
that, go immediately into a discussion with the panel. Lloyd.
MR. CuTLER: I think one thing to be said in favor of Washington
lawyers is that at least some of us foresaw the shortage of white rats.
I remember when the FDA decided that in a case of what I think are
called teratological drugs, I cannot pronounce it right, there had to be
testing through seven generations to make sure that no deformities
would result. Some of us decided we ought to go into the white rat
business, and it might have proved to turn out even better than trying
cases before the D.C. Circuit.
I join in the general praise of the D.C. Circuit and of the Chief
Judge in particular. I want to make clear that there is room in my
judicial church for differing and, so long as they are provocative,
philosophies, and that when some future Democratic president
appoints Pat Wald to the Supreme Court, I am going to ask if I can
testify on her behalf.
I think it is healthy for all of us to listen to a political scientist. After
all, their branch of-you would not call it science I am sure-bears
just as much responsibility as the lawyers and law professors do for the
invention of the administrative agency. While we wrestle with the devil
of judicial restraint, they wrestle with the devil of the art of politics
and interest group _balancing, which has at least as much to do with
the problem we are talking about, I think, as judicial restraint.
This particular circuit does have, always has had, a unique influence.
Being there may be part of the reason, quality may be part of
the reason. George Ball used to say about the special influence of
White House staffs-compared to State Departments and Defense
Departments-that nothing propinques like propinquity, and that is
certainly true of the D.C. Circuit. You are there.
I am going to start out on the judicial restraint side, and then move
over to the political side.
One of the most interesting aspects is the irony that is inherent in
the switching of sides on the issue of deference. It certainly was true
that when agencies were overregulating, what Pat called the burgeoning
period of regulation, it was the proponents of regulation who
were urging judicial deference, and it was the opponents who were
urging strict scrutiny. But when the agencies began to deregulate or
nonregulate, when the present era of what some might think of as
underregulation came along, it is the proponents of regulation who
are urging strict scrutiny, and it is the opponents who are urging
I think Pat’s remarks show that to a certain extent both proponents
and opponents of regulation, or at least those who view it benignly
and those who view it with fear, exist on the court of appeals, as well
as among us, whether advocates for industry or for public interest
It may be, as Justice Stevens says about this three-tiered level of
scrutiny in equal protection cases that we have heard so much about,
that the distinctions, these nice distinctions in level of scrutiny, are
really rather silly and that in all of these cases it is much more
important to focus on reasonableness.
One good example, I think, of what happens in judicial review of
overregulation is the present situation. This is obviously not a time of
overregulation today, but let’s take the airbag problem of which State
u , ……,. …
Farm was only an episode in a twenty-year saga. Maybe I am the only
one here old enough to remember that the first airbag regulation
came out at the end of the Johnson administration in 1968. It got set
aside by the Sixth Circuit a couple of years laters, in 1972, for lack of
an objective standard; essentially, you were supposed to build a
dummy conforming to a so-called SAE-Society of Automotive
Engineers-standard and run it in an actual crash into a barrier and
measure the impact on the dummy’s head when it hit the windshield.
There was no way of building dummies so that you could get a
repeatable result. The regulation came, this technology-forcing regulation,
before satisfactory replicable dummies could be built, and
that is why the court struck it down.
In 1976, Bill Coleman, as the Secretary of Transportation, came up
with what you would have to call, I guess, a nonregulation idea: an
experimental idea, in lieu of regulation and with the force of
regulation behind it if the companies did not agree. He negotiated the
auto companies into agreeing to build, I think it was, hundreds of
thousands of vehicles with airbags that would be offered to the public
with a commitment that the price for the airbag would not exceed a
stated amount, so that the public could get accustomed to airbags, and
so that some of the fears about whether the airbag would not work at
the moment it was supposed to could be tested over time on a very
large scale.
That was the regulation that Brock Adams set aside. The deal was
made, the companies were ready to go ahead and build those airbags
early in 1977. That is what Brock Adams set aside with his regulation,
which, in turn, because it had to allow lead times of four and more
years for the airbags to be installed, was reversed again by the Reagan
administration. And, it was the Reagan administration deregulation,
in effect, which went back in favor, essentially, of seat belts again, at
least for the time being. That was set aside in State Farm, and that
happened-by the time the Supreme Court was finished with it-in
1983. We are still waiting for regulatory airbags to be installed in- a:H
new cars and we have had twenty years of trying to solve this
admittedly difficult problem, the problem being not that seat belts are
inadequate, but that although they are in all cars, people will not use
them. We have been twenty years trying to resolve it by regulation.
The courts have set aside the regulations twice. The innovative
experiment was set aside not by a court, although it might have been,
but by a new regulator, and here we are twenty years later, not much
further along the road of forcing the development of new technology.
Steve Breyer, as many of you know, who conceived his theories
about regulation and deregulation as a Democrat working for Senator
Kennedy and as a Harvard Law School professor-who is now also a
circuit judge like Pat-had a theory that regulation was really a
weapon of last resort, that it is so clumsy and so difficult to administer,
particularly under the “eagle reviewing eye” of courts , that while in
some cases it is absolutely essential, because the market will not solve
the problem in any other. way, you ought to try virtually everything
else first before you turn to regulation.
When we do resort to regulation-and there are some cases, of
course, where you have to do it, I think-that [ using regulation as a
weapon of last resort] is essential, as Chief Judge Wald recognized in
what I think is her finest moment in administrative law-one she did
not mention in her paper-and that is Sierra Club v. Costle. She
recognized that regulation, in essence, is a political function. It is,
certainly, in its rulemaking phase a lawmaking function. That is why
Humphrey’s Executor?8 came out the way it did, because the Federal
Trade Commission was held to be exercising primarily a quasilegislative
function, along with its incidental executive function. Pat
approved, in the Sierra Club case, on-the-record intervention of the
President-the White House-in agency decisionmaking by an executive
branch agency, in that case the EPA.
That permitted what is an essential ingredient of political lawmaking,
even the interstitial kind of lawmaking that agencies are delegated
to do, and that [ingredient] is the element of balance necessary to check
the single-interest zeal of an agency assigned one of the myriad governmental
missions like expanding the economy, insuring safety, regulating
the environment, guaranteeing social justice, et cetera. All those
concerns have to be balanced together into a policy of some sort that
elected politicians can stand behind. It has always seemed somewhat
illogical to me to hold an agency to procedural standards, or to standards
of logical reasoning and choice among options, and especially
consideration of other alternatives. These are standards we require of
a lower court judge, but do not require of a legislature.
Congress had to delegate to the agency in the first place because it
could not possibly make all the rules and regulations. Congress does
not have the time most of the time, except in an egregious case, to
oversee what the agency is doing. The one method we had for dealing
with congressional review of agency regulation, namely the legislative
veto , went by the boards as unconstitutional, and I think quite
properly so from a constitutional point of view. We only have the
court, and the court necessarily has to go by some sort of what I would
call just a “smell test.” It just does not smell right. It does not smell
reasonable. Now, that does not fit comfortably with notions of judicial
restraint or carrying out the legislative intent. But that is essentially, at
least as I have seen it as a practitioner before the court, and as
someone watching and reading their cases, that is essentially what
88 Humphrey’s Executor v. United States, 295 U.S. 602 (1935).
they are doing. They are applying a smell test, a sense of reasonableness,
and they are performing their essential function of being the
legitimating authority over a body which exercises delegated power,
whether it is the entire government under the Constitution or
whether it is a regulatory agency acting under a statute . There must
be some authority who is trusted to legitimate what is done, and that
is the function the courts perform. That is the unique function of
courts in our administrative system, as it is in our entire constitutional
system. To legitimate you have to declare something illegitimate every
now and then just to keep the review process honest.
But the critical point is, if you overexercise that review power, you
are going to stifle the capacity for innovation, or experimentation, or
trying something new that caused us to invent the regulatory, administrative
agency in the first place. I would submit to you that when the
agency loses its capacity to innovate, it starts doing more harm than
MR. SusMAN: Well, we have had the “look” test of the Supreme
Court-you know, “I know it when I see it”-for pornography; now,
the “smell” test for administrative review. The Supreme Court might
have used the occasion of a milk marketing order review to initiate a
“taste” test, or something like that.
Judge Wald, you have an opportunity for comment.
JuDGE WALD: I am going to be extremely brief, because I know it
would be much more interesting to hear what your audience has to
Needless to say, one of the great benefits of these kind of seminars
is their interdisciplinarian aspects. Naturally, I found the Professor’s
comments most-again, to use an overused word-provocative. I
think many of the points he made were valid.
But I think it would be the wildest kind of judicial activism, with
which I would not associate myself, if the courts were to take on the
job of deciding which statutes we think ought to be enforced and
which statutes we think ought not to be enforced. -I do not think any
of you out there in the audience would like us to take on that job. So
I do not know what kind of structure, what kind of framework, we can
put ourselves in, other than the one that the separation of powers has
put us in, basically. That is, Congress passes the laws, the executive
enforces them, and the courts insure the executive does enforce them.
I agree with Lloyd: what happens in reality is Congress delegates away
a lot of the lawmaking power, and the executive has to behave like a
mini-legislature. But even given that, when we on the courts perform
our legitimizing function, I do not know any structure or basic tenet
we could adopt other than to say we are looking to see whether or not
the executive has gone beyond the bounds that Congress meant them
to do in enforcing that law. And, if we were to say, “Well, it is an old
law and it is a lousy law, and we are having none of it,” that would be
a very radical transformation of our process.
On a minor point, I do not think I said that I was “unconcerned”
with whether the APA had been eviscerated. I just looked on page 16
of my paper; I said I was “unconvinced” that it had been eviscerated.
I would be concerned if it had been eviscerated.
The last point is, I have not done a scientific survey on D.C. Circuit
opinions, but my impressionistic view is that we on the court do not
fall quite that neatly into “those of us who like special interest groups
and those who do not,” or who are perceived as favoring them and
consistently voting for them as against the state.
I think you will, not find that kind of line drawn neatly between
judges who always vote for or against the government versus the
so-called special interest groups. If you looked at our last two en bane
decisions, Jersey Central89 and Northern Natural Gas, 90 you would find
that some of the Carter appointees, myself included, were dissenting
on the side of upholding the government. We were saying, “Yes,
agency, we are for what you did,” and it was our newer colleagues that
were saying, “No, no, we think the agency went way beyond what it
could do.” Now, you may differ all over the place on the merits of
those two cases. My only point here is to point out that it is not the
perceived supporters of special interest groups who are aligning
themselves against the agency decisions. I think you would have a
hard time making up a neat little player chart in that regard.
I also thought that I recognized a little bit of the law and economics
view of legislation as an interest swapping process in Professor
Rabkin’s remarks. Whether or not that view is accurate in the real
world, it does not give courts enough to deal with. We cannot simply
say, “Well, we know it is just a big interest swapping process, so,
therefore, we are not going to give any of you the benefit of what
eventually emerged as a statute.” Maybe they swapped a lot of
different interests, but the point is still that we have to operate by
process and Congress passed the law, and in it Congress said, “We
want certain groups to have certain rights, and we also want judicial
review to make sure that they get those rights.” We have citizen suits
as an indication that Congress wanted people other than those that
were regulated to be able to challenge underregulation. At least for
the present I think I will have to put myself firmly in the conservative
group, which would say that if that is what Congress wanted, that is
what we are going to try to do.
I think I will end there.
Jersey Cent. Power & Light Co. v. FERC, 810 F.2d 1168 (D.C. Cir. 1987).
imNorthern Natural Gas Co. v. FERC, 827 F.2d 779 (D.C. Cir. 1987).
MR. SusMAN: Let’s continue with the panel for a while. Professor
Bonfield, why don’t you participate with us at this point.
PROFESSOR BoNFIELD: Paul Verkuil’s quote from Harold Leventhal
-“complexity has a bright future”- intrigues me. I wonder about
the sense in which Judge Leventhal intended that statement. He may
have meant that complexity has a bright future in the particular kind
of administrative law made by the D.C . Court of Appeals. In light of
the Leventhal statement quoted by Paul, I wonder whether there are
any lessons to be learned from the concentration of administrative law
cases in one particular court, and the fact that such a concentration
necessarily makes that court an expert in such law. As it becomes an
expert in adminstrative law, the aqministrative law it makes from time
to time may necessarily become more complex than the administrative
law made by other courts of appeals that do not specialize in that
When a court is more expert, as is the D.C. Circuit, it can better
understand such complexity; but it also may lose sight of the costs and
benefits of such complexity and, particularly, the great problems
caused by complexity. Perhaps it is not necessarily so that the law made
by a specialist administrative law court will be more complex than the
law made by a nonspecialist court, but it is at least possible to think
about the administrative lawmaking product of the D.C. Circuit in
that way. Does anyone wish to comment on that issue?
PROFESSOR RABKIN: It occurs to me that the D.C. Circuit has,
according to Judge Wald, fewer cases to decide per judge than any
other circuit and writes longer opinions, so, I conclude two things.
One is that the old aphorism that it takes longer to write a short letter
is not true in the D.C. Circuit and, two, that Parkinson’s Law is at work
in the D.C. Circuit.
Will that get a comment out of the Judge?
JuDGE WALD: Well, the only thing I can say is that in the eight
years-in the eight-and-a-half years-that I have been on the court,
we have gone up and down in terms of the rush of cases and filings.
Sometimes we have been overwhelmed with work, and other times it
has tapered off, and, although I noted recently we have gone up in
page length, I think that in no time during that eight-and-a-half years
did I see any real quantitative or qualitative difference in the
complexity which emerged from our opinions.
I do not know. I suppose if we had 400 cases apiece we probably
would be writing shorter opinions . And, I must admit, I simply am
not able to say whether that would be better or worse in the long run.
It seems to me that in a lot of the less visible cases-I have one
footnote here which I did not bother to read, but I thought it was
interesting- sornetimes I think we serve a good function in that there
are little cases, or one clause in a particular statute that we get cases on
again and again and again, and we finally do work out all of the problems
in the clause. The example I had was that we had twenty-nine cases in
the last year-and-a-half alone dealing with what are management rights
under the Federal Labor Relations Authority, the “NLRB of the Federal
Government.” I think none of those have gone up to the Supreme
Court, but I think we really have worked out, like the old common law
judges did, a real body of law as to that particular clause.
Yes, I think that sometimes our opinions are too long. I, in turn,
might say that that could be attributable to the fact we have so many
academics on the court, but since mine are also long, that theory does
not necessarily hold true.
Sometimes, whe,n I compare a particular issue that we have treated
with an issue-this is not snobbism or elitism-which has been treated
by a couple of other courts around the country, I think we have taken
too long to say it. But I think that we probably have explored the issue
or brought out all of its facets in a more thorough way. I simply cannot
say whether, over the long haul, that is a good or a bad thing.
MR. CuTI,ER: It seems to me the right measure of comparison is the
regulations, the Federal Register, and the size of those awful records,
and the results of requiring an agency to consider all other alternatives,
and then your having to consider whether the agency considered
each one properly. You are just a .mole hill on top of that
mountain in the Federal Register.
JuoGE WALD: Well, if you start to write one of these opinions,
generally, to get the facts and the proceedings down you are on page
21 before you get to the discussion aspect of it.
MR. CUTLER: It is seventeen years later.
PROFESSOR BONFIELD: The discussion has focused on the length of
court opinions in cases involving the review of agency action. I am not
concerned, particularly, with the length of the court opinions, but I
am concerned about the complexity of the requirements they impose
because of the great costs of understanding and applying those
requirements. Complex procedures are not necessarily bad procedures,
but special costs and benefits flow from the imposition of
complex procedural requirements. I think it would be interesting to
contrast in some way the complexity of the required administrative
procedures imposed by expert courts, regardless of the length of their
judicial opinions imposing those procedures, with the complexity of
the procedures imposed by inexpert courts on the same kinds of
cases, because the costs of understanding and applying complex
procedural requirements may fall unequally on different groups.
And their value may be appreciated differently by judges who are
experts in administrative law and judges who are not specially
sophisticated about administrative law. That is the issue I was seeking
to raise. That is the question right here.
JunGE WALD: Yes. I have got your question. Let me just point out you
might take a look for comparison at the Federal Circuit. The Federal
Circuit is here in Washington. It has a specialized jurisdiction of
patent and customs law, and also of Merit Systems Protection Board
cases. My notion is they do not get involved in quite the degree of
complexity we do in their requirements for a rationale that will
survive. On the other hand, they handle many more cases than we do.
But I have got to admit, I have heard pros and cons from the lawyers
as to whether they would prefer to argue before our circuit or the
Federal Circuit. I will not try to draw the conclusion there, but my
point is that there you have a specialized court which does not appear
for whatever reason to have gone the route that we have.
MR. SusMAN: Professor.
PROFESSOR RABKIN: I want to, if I could, first just respond to a few
things that Judge Wald said. Start at the end. I do know a lot of people
who do law and economics. It has always seemed to me that it has
certainly a high reputation, just because it came as such a shock to
people in law schools to discover that there were a lot of politics in the
making of statutes.
I do not think you have to subscribe to all of their libertarian premises,
or all of their economistic reasonings about human motivation. I just
think that there is an awful lot of funny politics going on in the world.
That is one thing. Now, the next thing is, does it matter if-or, how
do you handle this difficulty that the statute is on the books and it
belies the law? I think that is why we have an executive branch. I was
never suggesting that the courts should say, “Well, this one is old, so
let’s get rid of it.” I mean, I myself think there is something
troublesome about Dean Calabresi’s suggestion there. But it seems to
me perfectly reasonable for the executive branch to say, “Well, we do
not think this law rates a very high priority.” They have all kinds of
euphemisms that they can use. I suppose this administration is better
than most in developing euphemistic explanations, and why could we
not just leave it at that.
Just to give you an example: in one of your opinions which I
thought was particularly fascinating ( one of those 162 cases against
the Federal Energy Regulatory Commission), you go on at extraordinary
length talking about what really was the intent of the Congress
that passed the Hepburn Act91 in 1906.
People make fun of Judge Bork and they say, “Whoever could know
what the original intent was in 1787?” I think when you go back to the
Hepburn Act you are getting pretty close to what Judge Bork is
‘)’Hepburn Act, ch. 3591, 34 Stat. 584, repeated by, Act of Oct. 17, 1978, Pub. L. No.
95-473, § 4(b), 92 Stat. 1466.
accused of doing. That decision goes on for several pages with a
perfectly straight face about “Well, Senator Henry Cabot Lodge said
frumph, frumph, frumph, and Senator John Sherman said frumph,
frumph.” I mean, it is like the founding fathers talking through the
D.C. Court of Appeals. That just seems to be, with all respect, really
absurd and there is a very easy way around it. There is a very easy way
around it, which is just to tell this farm coalition that was complaining
“We need tighter regulation pipe-oil pipeline rates,” just tell them,
“you do not have standing, it is nothing to you, there is no case here.”
That would have been real easy.
MR. SusMAN: Before we move to questions from the audience, I do
want to inject a qyestion that comes from afar. Ernie Gellhorn could
not be here today, but I told him I would let him lead off the questions
anyway. He was interested in the panel’s views on the role of
“normative ideological views” in deciding administrative law questions:
“Recent decisions by the court on judicial review, standing,
exhaustion, and ripeness seem to reflect a distinctive liberal versus
conservative division.” That issue has been raised, of course, during
the session. “Is there a politization of the court on administrative law,
or is this just a result of maturation and sophistication, or something
else.” And this raises the obvious issue of whether this kind of
politization is desirable.
Could we have some comments?
PROFESSOR RABKIN: I think the answer is clearly “yes” to that.
MR. SusMAN: Can we have some other observations?
Juoc;E WALD: I would say that a court is always made up of people
that come from different administrations. I think we would all be
blinking if we did not suggest Presidents made appointments and
Senates confirmed them, knowing that people had particular viewpoints,
had particular ideologies.
The hope has always been that once you go on the court, you do not
feel that you must necessarily either advocate, advance, or even refuse
to change some of those viewpoints. We have a court that has had an
unusual amount of turnover in a very short period of time. I would
not be the Chief Judge after eight-and-a-half years, the most senior
active person except for Judge Robinson on the court, if we had not
seen an immense amount of turn9ver.
It is hard to think that people who come on the court, from
whatever administration, do not come on with some viewpoints about
issues in administrative law, as well as about fundamental issues of
standing and ripeness, since, basically, standing and ripeness are
devices for a more basic notion about what a judge thinks courts
should be doing-whether or not he or she thinks the court should be
hearing certain kinds of cases, and whether it ought to be difficult or
easy to get access. I will say that I think all of our judges, of whatever
political background, conscientiously try to stay within the bounds of
Supreme Court doctrine, which has not always been lucidly clear on
some of these issues. You have two distinct lines of standing cases
coming down from the Supreme Court, one of them being SCRAP
and its progeny, the other starting with Simon. 92 Then you have
zigzags, you have two cases which President Verkuil pointed out
where the Supreme Court has reversed the D.C. Circuit for being too
strict on standing within the last year. It is almost like what Harold
Leventhal used to say about citing legislative history: “looking out
over a crowd and picking out your friends.” To a certain degree that
is true when you deal with Supreme Court doctrine.
But in the last year the different factions of the court have begun to
come together. We had our public fuss on en banes; one of the Reagan
appointees changed his vote to say, “No, I do not think we really ought
to go and en bane [sic] all of these cases. I do not think it is necessary
to keep the law of the circuit consistent.” I think when we have all had
more time on the court, it will not seem as “political” as it may seem
to some people now. I would also suggest, if you are a faithful daily
reader of our opinions, rather than a reader of the cases that the
newspaper decides are important enough to be given high visibility,
you will find in a great number of cases-about 90 percent-that we
are all in agreement. And, furthermore, you will not find that all the
Carter appointments vote for the special interest groups and for
standing, and all of the Reagan appointments vote for the current
administration. It simply does not work that way, but yes, we do have
differences on the court.
MR. SusMAN: Mr. Cutler.
MR. Cun.ER : Well, I will try to be as provocative as Professor
Gellhorn. I do not think it has anything to do with ideology, and I do
not think it has anything to do with results. I think most doctrines of
standing, or ripeness, strict scrutiny, rationality, levels of tests, are
rationalizations after the fact. I have yet to see the judge who could
not come out at the same place under a strict scrutiny test as he does
under a rationality or reasonableness test. That is equally true in equal
protection cases. I have yet to see the judge who let a standing or
ripeness issue get in the way of a case he really wanted to hear and
PROFESSOR RABKIN: Yes, but I think the question is not whether these
doctrines are binding, but whether currently stated differences about
these doctrines do not reflect larger ideological differences. And, on
that point, with all the qualifications that Judge Wald made, it seems
to me indisputable that the general view of the Reagan appointees
!l:.?Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976).
is what reigns in the courts, and that contrasts with some of the Carter
appointees. Do you agree?
MR. CuTLER: Well, do not forget that certainly in the agency field the
sides have shifted. These same doctrines that were used to uphold
what some thought was an excessive regulation are now being used to
uphold what some think is excessive deregulation or nonregulation.
PROFESSOR RABKIN: Yes, let me just add one thing to this. It strikes me
that there is more simply than whether you are for regulation or for
deregulation, or whether you are a market-oriented conservative or a
regulation-oriented liberal, that some of this probably has to do with
people who are loyal to the things which they were involved in and try
to protect what they feel they created. I do not say any of this from
personal experience. However, it is my impression, looking at the
Supreme Court, that many of the, let’s call them, “older” Justices are
particularly attached to doctrines which they developed. It makes
sense to me that people on the D.C. Circuit would divide in generational
terms. There is your generation of the court, even if there were
not these underlying political differences between the administrations
that appointed them. The seventies really were a different era in
national life. It was a different era in legal scholarship. It was a
different era in terms of many, many other things that shaped
people’s formative expectations-if that is when they joined the D.C.
JuDGE WALD: We are all from one generation right now on the D.C.
Circuit. Judge Mikva and I came in 1979. The Reagan appointments
came soon thereafter, beginning with Judge Bork in 1981, and
continuing right up to this year. We are talking about a difference of
six years. We all went through the seventies together. Not on the same
side of everything, I am aware of that, but there really is not a
generation gap there now.
PROFESSOR BONFIELD: Of course, judges are human, and nobody can
entirely leave their own personal prejudices out of what they do. But
I want to speak in favor of most judges who think they have a serious
job to do, and try, as much as they can, to suppress their private
prejudices in the work they perform as judges, even though they
cannot entirely eliminate the effect of those views. The assumption
that most judges simply come to a result they like, and then justify
their decision by manipulation of the legal doctrine, seems to me to be
unwarranted. Surely that happens, on occasion, but that is clearly not
the desirable or proper way to approach the job of judging and I do
not think most judges do that in practice.
I would remind you of the debate between then-Judge and nowJustice
Scalia and Professor Richard Epstein on the question of the
proper standards to be applied by courts as a matter of substantive
. due process in the economic regulation area.Justice Scalia, who was
not then on the Supreme Court, took his usual principled position:
even though the composition of the federal courts has changed, as
have the personal economic predilections of many of their members,
the traditional position of hands-off, maximum deference in reviewing
such matters ought to be continued, though he personally had
serious doubts about the wisdom of a great deal of such legislation.
Epstein, on the other hand, argued that since the judges on those
courts have changed, courts should now become activist for a different
purpose-they should strike down a great deal of the economic
regulation they believe to be dy sfunctional or distasteful as a matter of
policy. That debate demonstrates that y ou cannot simply divide
judges, in terms of their activism or passivism on the court, on the
basis of their personal political or economic views. Other factors enter
into their judicial positions on such matters. One can recall that Oliver
Wendell Holmes repeatedly refused to enforce his personal Boston
Brahmin views on decisions of the Supreme Court reviewing legislation
that he and members of his class thought absolutely abhorrent.
MR. SusMAN: I would like to ask whether ‘Justice” has any role in the
administrative law cases. Rather than politics or ideology, does it help
for a judge to have an innate sense of fairness or justice outside of
conservatism or liberalism? Professor Rabkin.
PROFESSOR RABKIN: A lot of people have a lot of strange ideas to begin
with about justice. It has been my observation, from reading the more
celebrated decisions, that a lot of people’s ideas about justice get even
stranger when they get on the bench.
When y ou say justice, I think too many people think justice as opposed
to policy,justice as opposed to consequence,justice as opposed to reasonableness,
justice as opposed to circumstances, exigency, andMR.
SusMAN: How about as opposed to injustice?
PROFESSOR RABKIN: Well, y ou know, I think particularly in the context
of regulation, but I think, more largely, most of these cases are not “as
opposed to injustice.” They are competing notions about policy, and
who is going to get what, and I really would hesitate to talk about that
in terms of justice. I think the just thing probably would be to have
very little regulation at all. That is my view of justice for what it is
worth. I mean, I am very uncomfortable with the idea that justice will
decide exactly how much of what should be distributed to whom when
the government is ladling things forth.
MR. SusMAN: A question.
PROFESSOR SuNSTEIN: Microphone is working. I am Cass Sunstein,
and I teach law as well as political science. Many political scientists do
not agree with Professor Rabkin.
As I understand Professor Rabkin’s view, if automobile manufacturers
want to challenge a law forbidding certain carcinogens or
discrimination on the basis of race or gender, they are allowed to do
so because their own rights are at stake.
If the workers want to challenge a regulation on the ground that it
has inadequately regulated carcinogens or discrimination, they are
not permitted to because it is a general issue of public policy.
That distinction cannot be sustained. The notion that one’s own
rights are at stake, in that formulation , is being decided by reference
to a kind of conception of property rights that Congress has itself
repudiated in the Administrative Procedure Act and in the relevant
organic statutes. The Administrative Procedure Act tells courts they
can compel agency inaction, agency action unlawfully withheld or
unreasonably delayed. It defines agency action to include failure to
Under many organic statutes, Congress has explicitly said that there
are deadlines to be judicially enforced. Professor Rabkin’s quarrel, I
think, is not with the D.C. Circuit. It may be with judicial review. It is
certainly with the Congress.
PROFESSOR RABKIN: It is with the Congress, I admit that. That is to say,
Congress among others. This is a very convenient thing for Congress.
I would say, though, to Professor Sunstein, it is not, I think, quite
fair to point to the Administrative Procedure Act and say, “There,
that settles it, Congress has allotted this function to the APA since
Agency action unlawfully withheld could involve lots of things that
Justice Holmes and the public in 1912 would have recognized as
perfectly reasonable occasions for judicial review. For example, there
are certain kinds of permit or licensing circumstances in which people
routinely need to get a permit to do something. They apply for it, and
it is denied, withheld, or stalled. They are generally understood to
have rights to do that something. There are some exceptional
government control situations, but sure, in a case like that you could
say they have a right to receive this permit or license, and that should
be understood as agency action unlawfully withheld or unreasonably
delayed .
I still think there is a very fundamental difference between that and
people stepping forward and saying “We would like to see a different
regulatory pattern in the world.”
It did not persuade me, because you said it was untenable, that the
way people looked at these things until about 1969, they suddenly
now become totally unthinkable. We have learned some lessons about
how far clocks can be turned back, but it seems to me it should not be
impossible to reconsider the good sense of an earlier era that is only,
you know, basically ten or fifteen years removed from us.
MR. SusMAN: Yes, sir.
MR. Cox: My name is Michael Cox. I teach at a law school, also, and
I have a question for Judge Wald and other members of the panel.
You indicated that standing and ripeness were doctrines that were
being used to exclude persons, so to say, from getting issues litigated,
but in the Block case, Justice O’Connor watered down the “clear and
convincing” test to a fairly discernible test for implied preclusion,
which to me is getting very close to standing. Would you include
implied preclusion as a doctrine which might increase in its use to
keep issues from being decided by the courts?
JuoGE WALD: Well, sure. Let me clarify one thing. I am not saying
that any standing case that denies standing is wrong. I, myself, have
written some of those cases denying standing which are in the paper.
All I am pointing out is that as we move forward along that line, it
seems to me we might keep in mind some of the possibilities, the
ramifications of getting overzealous, or setting up what are too rigid
lines of causation and redressability.
Remember, especially when you get into Article III case or controversy
standing, once a court says you do not have Article III case or
controversy standing, there is nothing Congress can do about it. I
mean, it is not like APA aggrievement-type standing, and I see some
danger in erecting too-high barriers of causation and redressability,
which are judge-made standards . You can go to the Constitution and
it just says “case or controversy.” I am sure those people back in 1787,
when you said case or controversy, were thinking in very noncomplex
terms-not in terms of injury in fact, causation, and redressability.
Those are judicially made doctrines.
Now, having got that off my chest, yes, obviously, an overly rigid
look at when a statute precludes judicial review-just as not reading
into a statute private rights of actions-all of those things can combine
with Chaney unreviewability, with standing, with ripeness, and with
finality to mount high barriers to access. That does not mean that they
are unnecessary barriers. The doctrines are, I think, good ones if they
are applied with some sense of both the congressional intent, as to
whether or not Congress wanted beneficiaries to be able to litigate
underregulation, and with a general reasonableness doctrine, such as
Lloyd has expressed. But sure, implied preclusion is definitely one of
these access barriers.
MR. LEVIN: I am Ron Levin, also a professor, and I have one or two
comments about Heckler v. Chaney. It seems to me that if we are going
to say that the prisoners who are trying to keep themselves from being
executed with unsafe drugs did not have enough of a legal stake in the
outcome, we are going to have to rethink our notion of injury in fact
at a pretty basic level.
My more significant-or at least more extended-comment is that
I think that although it did have a bizarre fact pattern, it is
not-should not-be very surprising at all that Heckler v. Chaney has
stirred up a great deal of controversy and has had many progeny in
the D.C. Circuit, as well as everywhere else where administrative
action is reviewed.
It seemed to me that it was a phenomenon waiting to happen, in
terms of how the courts were going to come to grips with this very
difficult matter of reviewing agency inaction. There are a good
number of cases still authoritative in the D.C. Circuit saying that
certain types of inaction, for example, refusal to commence rulemaking,
are reviewable. Chaney just does not apply, but the scope of review
1s very narrow.
I have read pro?ably most of those cases, if not all of them. I have
yet to see any respect, whatever, in which the review that goes on there
is any narrower than what goes on in adminstrative cases generally.
That may be good, but to the extent that some people think that it is
not good for types of inaction to be reviewed closely, I think it is not
at all surprising that there is a great deal of pressure or impetus to
classify these types of actions and other delicate administrative actions
into the realm of unreviewability, so that the usual hard look that the
courts have figured out how to perform will not be performed there .
Whenever we have this large crop of cases classified as “unreviewable,”
people expect there is going to be a somewhat more lenient type of
That does not settle the problem by any means, though, because
Judge Wald and others have participated in building up a very
complex, very detailed body of law that tries to specify just what
Chaney means. It seems to signify a sort of partial unreviewability.
Various types of contentions are reviewable. Various ones are not. I
think it is entirely appropriate that about thirty-five cases or so have
come from the D.C. Circuit on this point, and I hope that the court
will not try to settle the matters too quickly.
Junc;E WALD: No chance.
MR. LEVIN: I am glad there is no chance, because I think this is the
scope of review dialogue of the 1980s, a large area where there simply
has to be further development of something that cannot be readily
PROFESSOR RABKIN: I do not think that the relevant issue here is action
versus inaction. I do not think the important issue here is should you
give st.anding to people who are directly affected, indirectly affected,
not at all affected. It seems to me that the issue is one that you could
frame pretty precisely. Do people have a right to what they claim or do
they not? Now, that sounds kind of formalistic, but 1 think it means
something because it is saying you are really entitled to this result. You
are not in there just because you would benefit if things were
arranged differently, but because you in particular are entitled to this
result. That helps you to organize the world. You cannot actually give
out particular entitlements to everything, to everybody. Property is
something that one can own privately and individually. Regulatory
benefits cannot be owned that way. I think that is a good sign that you
cannot be given a personal right to it.
I do not think there is any question that once you get in the habit
of saying, “Well, they do not actually have to have a direct right to it,
it does not have to be explicit, it is just a matter of are they affected
somewhat to some extent,” you have cases like-one that is mentioned
in the paper-this very peculiar case in which somebody named
Robbins sued President Reagan. I cannot tell you who this Robbins is,
because they just failed to mention that in the D.C. Circuit’s opinion,
but Robbins seems to be somehow connected with the Committee for
Creative Nonviolence, which wants to have the government maintain
a home for people who are homeless. That is a very worthwhile
enterprise, I am sure. President Reagan seems to have said that he
personally promised that they would do this, and then it did not
happen. Now there is a suit about something where there is not even
a statute. I mean, we do not know who this Robbins is, we do not know
what statute gives them the right to have this home for the homeless.
It is altogether up in the air. The question is how much unbounded
creativity are you going to allow to judges, and you are allowing, in
many cases I think, a remarkably unbounded discretion to judges who
sometimes do rather peculiar things in the name of their view of
justice. I think that is something you can object to and be concerned
about without being, you know, a heartless-or somebody who has a
wildly formalistic view of how the law is supposed to work.
JuncE WALD: Could I just add one thing on Robbins v. Reagan? I do
not know if it was Robbins, but at least one of the people suing was a
person, a homeless person, who was currently inhabiting the Mitch
Snyder Shelter put up by the Committee for Creative Nonviolence,
and who, as of the date that the administration had said they were
going to close the shelter, would be on the streets. At that time there
were no alternative facilities in the community, so that he did stand to
suffer a very tangible injury, namely the loss of the bed that he was
sleeping on and the roof over his head. That should be enough as far
as standing goes.
Now, the second thing is that in that case we ultimately came down,
if you recall, upholding the agency and saying that it could, in fact, go
ahead and take down that shelter. The only debate among Judge
Bork and Judge Robinson and myself was whether we could even get
to review anything in the case, or was all review thrown out by Chaney.
Now, we simply did not see the resemblance between the prosecutorial
discretion-type decision involved in Chaney, and whether or not they
could close down this shelter because Snyder had not kept whatever
his part in the bargain with the government was. Even Judge Bork did
not raise any standing issue there.
PROFESSOR RABKIN: He should have.
MR. SusMAN: Last question.
MR. CUDAHY: I am Dick Cudahy. I am a member of the Seventh
Circuit, which is one of those courts out there beyond the Beltway. We
are extremely nonideological and certainly extremely nonexpert, but
I just wanted to commend Chief Judge Wald and the panel, and I
think it has been an extremely stimulating discussion-one that I am
going to take home and try to apply. I never realized the profound
wisdom of James :Watt before coming to hear this presentation, but it
has been excellent.
Aside .from the administrative law questions, the real question I
would like to get the answer to is how you keep your docket so low?
I think that is a real achievement.
JuDGE WALD: By keeping our boundariesMR.
CUDAHY: High standing .
MR. SusMAN: Thank you, Judge . That brings this part of our
afternoon to a close. I want to start by thanking our panelists,
President Verkuil, Professor Rabkin, Mr. Cutler. Their comments and
presentations contributed mightily to our understanding and enjoyment
of administrative law. Judge Wald has provided us with a
scholarly paper, but also refreshing humor and some perceptive
comments which will assist us in understanding the issues, in sensitizing
us to the role of the court and the problems that the court faces,
and, certainly, in enhancing our respect for its work and its decisions.
I was looking through some materials in preparation for today; Jeff
Lubbers, a member of our section, sent me an interview that he had
with Judge Wald that appeared in the FEDERAL BAR J ouRNAL shortly
after she became Chief Judge. The last question was, although this
was in advance of any thought of retirement, “W hat would you like to
be remembered by after you retire from the bench?” Judge Wald
answered, “Oh, the usual, that she worked very hard, that she was a
reasonably good administrator, she was a thoughtful and fair judge,
and she made some small contributions towards pushing the law
forward as an effective means of solving human and social problems.”
Judge Wald, I think you do not need to have to wait until history
books are written to attain well-earned