Attorney General violation of Executive Order not reviewable under the APA because E.O. does not have "the force of law"

President Bush issued E.O. 12,711 in 1990 directing the Attorney General and the Secretary of State to provide enhanced consideration of aliens seeking political asylum because they fear forced abortion or coerced sterilization. Notwithstanding that Executive Order, the Attorney General still applies a pre-E.O. Bureau of Immigration Appeals decision holding that family planning policies in the Peoples Republic of China is not a basis for granting political asylum. In an earlier case, the Second Circuit had refused to review a denial of political asylum inconsistent with the E.O. on the basis that the E.O. did not create a private right of action. In Jia-Ging v. Slattery, 84 F.3d 82 (2d Cir. 1996), the petitioner relied on the APA as the cause of action, citing to cases in which courts had enforced requirements imposed by E.O.s on agency action subject to judicial review under the APA. The Second Circuit, while inviting the executive and legislative branches to overrule the earlier BIA decision, continued to refuse to review the matter itself. It distinguished cases enforcing E.O.s from the present case on the grounds that in those cases the E.O.s had the "force of law" because they were issued under an express or implied grant of Congressional power. Here, however, the President was not acting pursuant to congressional authorization, but presumably under his constitutional powers, and therefore the order did not have the force of law.

Seventh Circuit allows agency to supplement administrative record in district court to supply rational justification for the agency's decision

In Bagdonas v. Department of the Treasury, 93 F.3d 422, an ex-felon had applied for a waiver of the statutory bar on his ownership of a firearm. The Bureau of Alcohol, Tobacco, and Firearms refused, but its refusal was peremptory, in essence stating only that he had failed to meet the statutory criteria for a waiver. There was no application of the law to the facts. As such, the agency would have seen its decision remanded, because the reviewing court would have had no basis for determining if the agency's decision was arbitrary and capricious. Under SEC v. Chenery Corp., 332 U.S. 194 (1947), the court noted, the district court could not supply its own explanation for denying the waiver. Perhaps sensing this problem, the ATF supplied a lengthy affidavit to the district court when its denial was challenged. In the affidavit, the ATF provided a thorough explanation of the basis for the agency's decision. The Seventh Circuit distinguished this affidavit, made by the deciding authority in the case, from "post hoc rationalizations" made by counsel for the agency. As such, the court, while chiding the agency, accepted it as part of the record, and so supplemented, found the record supported the agency's decision.

Ninth Circuit holds that the manufacture of veterinary drugs is a closely regulated industry not requiring a warrant for an administrative search

The Food and Drug Administration seized certain veterinary drugs without a warrant. In United States v. Argent Chemical Laboratories, Inc., 93 F.3d 572, an action to condemn the drugs, the defendant-manufacturer defended on the ground that the search had been unconstitutional because it had not been authorized by a prior judicial warrant. The court applied the Colonnade-Biswell-Burger line of cases, establishing the test for exceptions to the warrant requirement for administrative searches. Using that test, the court determined that the manufacture of veterinary drugs is a closely regulated industry, so that Argent had a diminished expectation of privacy, and that the administrative search scheme under which the seizure was made was necessary to further a substantial government interest and provided an adequate substitute for a judicial warrant.

Federal Circuit find Chenery I's requirement inapplicable when the issue involves one of statutory construction

Under SEC v. Chenery Corp., 318 U.S. 80 (1947), a court can uphold an agency action only on the basis articulated by the agency; it cannot supply its own rationale. In Koyo Seiko Co., Ltd. v. United States, 95 F.3d 1094, however, the Federal Circuit held that Chenery did not apply here because the sole issue was one of statutory construction. Koyo Seiko was found to have engaged in dumping of bearings in violation of United States trade laws, and the International Trade Administration levied an antidumping duty. Koyo Seiko argued that a statute capping its antidumping duty to the amount of its security deposit imposed at the time of importation applied, and no security deposit had been made at the time. The ITA and the Court of International Trade rejected this argument on the basis that the law capping the antidumping duty was passed subsequent to the importation here. The Federal Circuit agreed that the cap did not apply, but not for that reason. Rather, the cap did not apply because it only applied when there was a security deposit, and not when there was none made. The court stated that Chenery did not prohibit affirmance on this alternative ground, because the Chenery decision was founded on the exercise of agency discretion. Where an agency exercises its discretion, including the application of law to facts, a court cannot substitute its judgement, for then it would be supplanting the discretion rightfully belonging to the agency. Here, however, the question was one of statutory construction -- whether the statute imposed the cap or not -- and hence agency discretion did not come into play.

In this case, the court's decision makes unnecessary a pointless remand to the agency (in a case that had been going on since 1974). In not discussing Chevron v. NRDC, however, the court's analysis is incomplete, for it would seem that an agency's construction of an ambiguous statute which the agency is responsible for administering would seem to fall within the area of discretion rightfully to be exercised by the agency.

Federal Lead Contamination Control Act's requirement that states establish remedial programs violative of Tenth Amendment

In ACORN v. Edwards, 81 F.3d 1387 (5th Cir. 1996), the Fifth Circuit stated that "few Congressional enactments fall as squarely within the ambit of New York [v. United States, 505 U.S. 144 (1992)]." New York had held that Congress cannot draft states against their will into running programs mandated by federal law. In ACORN a public interest group brought suit against the State of Louisiana to force it to comply with the federally mandated Lead Contamination Control Act. That suit was dismissed as moot when the state complied, but the plaintiffs sought attorneys fees. The Fifth Circuit held that plaintiffs could not obtain attorneys fees because the law they sought to enforce was unconstitutional. One provision of the Act requires states to initiate remedial action programs that involve testing and removing any lead contamination in drinking water in public schools. This requirement violated the strictures established in New York.

D.C. Circuit denies standing to environmental group for failure to show that regulation would cause injuries

In Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7 (1992), the Supreme Court stated that when plaintiffs allege a procedural violation, they need not show the same causation and redressability that would be required if they alleged a substantive violation. In Fla. Audubon Soc. v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996), the D.C. Circuit clarifies that plaintiffs must still show full causation and redressability between the substantive government action and their injury. In this case, the IRS had issued regulations providing for a tax credit for a fuel additive made from ethanol. Plaintiffs challenged the regulation as having violated the requirement for an Environmental Impact Statement imposed by the National Environmental Policy Act. In support of standing, they provided affidavits from persons living adjacent to currently unused agricultural land that they alleged would be put back into production as a result of the effects of the tax credit. As a result the plaintiffs said they would suffer increased water pollution from increased use of pesticides. The court acknowledged that increased water pollution would constitute sufficient injury, but the court found the alleged causal connection between the regulation and the alleged effects on the particular properties adjacent to the affiants to be wholly speculative. The court made clear that Defenders's statement as to reduced causation and redressability requirements, where procedural violations were claimed, referred to the connection between the procedural violation and the injury, not between the government action and the injury.

APA does not require docketing of ex parte communications received during rulemaking

EPA lists priority hazardous waste sites for clean up pursuant to rulemaking amending the National Priorities List. In adding a particular site to the NPL, EPA received certain ex parte communications from an Indian tribe where the site was located. In Board of Regents of University of Washington v. EPA, 86 F.3d 1214 (D.C. Cir. 1996), the plaintiffs challenged the rule listing the site, because EPA did not docket these ex parte communications, relying on Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981). The court, however, distinguished Sierra Club on the ground that there the rulemaking was pursuant to the Clean Air Act, which specifically required docketing of all documents "of central relevance to the rulemaking." Here the rulemaking was governed by the APA, which contains no docketing requirement. Moreover, here the ex parte communications apparently had no effect on the rule, because they had been made to a person not involved in the listing decision.