United States Reports/Volume 470/Heckler v. Chaney/Opinion of Justice Brennan

by William Joseph Brennan

Justice Brennan, concurring.

Today the Court holds that individual decisions of the Food and Drug Administration not to take enforcement action in response to citizen requests are presumptively not reviewable under the Administrative Procedure Act, 5 U. S. C. §§ 701–706. I concur in this decision. This general presumption is based on the view that, in the normal course of events, Congress intends to allow broad discretion for its administrative agencies to make particular enforcement decisions, and there often may not exist readily discernible "law to apply" for courts to conduct judicial review of nonenforcement decisions. See Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 410 (1971).

I also agree that, despite this general presumption, "Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers." Ante, at 833. Thus the Court properly does not decide today that nonenforcement decisions are unreviewable in cases where (1) an agency flatly claims that it has no statutory jurisdiction to reach certain conduct, ante, at 833, n. 4; (2) an agency engages in a pattern of nonenforcement of clear statutory language, as in Adams v. Richardson, 156 U. S. App. D. C. 267, 480 F. 2d 1159 (1973) (en banc), ante, at 833, n. 4; (3) an agency has refused to enforce a regulation lawfully promulgated and still in effect, ante, at 836;^[1] or (4) a nonenforcement decision violates constitutional rights, ante, at 838. It is possible to imagine other nonenforcement decisions made for entirely illegitimate reasons, for example, nonenforcement in return for a bribe, judicial review of which would not be foreclosed by the nonreviewability presumption. It may be presumed that Congress does not intend administrative agencies, agents of Congress' own creation, to ignore clear jurisdictional, regulatory, statutory, or constitutional commands, and in some circumstances including those listed above the statutes or regulations at issue may well provide "law to apply" under 5 U. S. C. § 701(a)(2). Individual, isolated nonenforcement decisions, however, must be made by hundreds of agencies each day. It is entirely permissible to presume that Congress has not intended courts to review such mundane matters, absent either some indication of congressional intent to the contrary or proof of circumstances such as those set out above.

On this understanding of the scope of today's decision, I join the Court's opinion.^[2]

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1. Cf. Motor Vehicle Manufacturers Assn. v. State Farm Mutual Ins. Co., 463 U. S. 29, 40–44 (1983) (failure to revoke lawfully a previously promulgated rule is reviewable under the APA).
2. I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting). My concurrence here should not be misread as an expression of approval for the use of lethal injections to effect capital punishment as an independent matter. The Court is correct, however, that "profound differences of opinion over the meaning of the Eighth Amendment" should not influence our consideration of a question purely of statutory administrative law. Ante, at 838.