`In the Supreme Court of the United States
`DEPARTMENT OF HOMELAND SECURITY, ET AL.,
`PETITIONERS,
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
`RESPONDENTS.
`DONALD J. TRUMP, PRESIDENT OF THE
`UNITED STATES, ET AL., PETITIONERS,
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`COLORED PEOPLE, ET AL., RESPONDENTS.
`KEVIN K. MCALEENAN, ACTING SECRETARY OF
`HOMELAND SECURITY, ET AL., PETITIONERS,
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL., RESPONDENTS.
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`On Writs of Certiorari to the United States Courts of
`Appeals for the Ninth, D.C., and Second Circuits
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`BRIEF OF AMICI CURIAE PUBLIC CITIZEN, NATURAL
`RESOURCES DEFENSE COUNCIL, AND AMERICAN CIVIL
`LIBERTIES UNION IN SUPPORT OF RESPONDENTS
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`October 2019
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`SCOTT L. NELSON
` Counsel of Record
`ALLISON M. ZIEVE
`PUBLIC CITIZEN
` LITIGATION GROUP
`1600 20th Street NW
`Washington, DC 20009
`(202) 588-1000
`snelson@citizen.org
`Attorneys for Amici Curiae
`
`
`
` i
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`
`TABLE OF CONTENTS
`TABLE OF AUTHORITIES ....................................... ii
`INTEREST OF AMICI CURIAE ................................ 1
`SUMMARY OF ARGUMENT .................................... 2
`ARGUMENT ............................................................... 5
`I. This Court’s decisions, including Chaney, have
`narrowly construed the APA’s exceptions to
`judicial review. ..................................................... 5
`II. Chaney’s holding is limited to agency decisions
`not to initiate enforcement proceedings. ............. 7
`III. Consistent with Chaney, lower federal courts
`have held that agency actions promulgating
`general enforcement-related policies are
`reviewable. ......................................................... 11
`IV. The government’s arguments for extending
`Chaney are unconvincing. .................................. 16
`CONCLUSION .......................................................... 21
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`
`ii
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases:
`Air Courier Conf. of Am. v. Am.
`Postal Workers Union,
`498 U.S. 517 (1991) ............................................. 21
`Bowen v. Mich. Acad. of Family Physicians,
`476 U.S. 667 (1986) ......................................... 6, 21
`Center for Auto Safety, Inc. v. NHTSA,
`342 F. Supp. 2d 1 (D.D.C. 2004),
`aff’d, 452 F.3d 798 (D.C. Cir. 2006) .............. 14, 15
`Chiang v. Kempthorne,
`503 F. Supp. 2d 343 (D.D.C. 2007) ..................... 14
`Crowley Caribbean Transport, Inc. v. Peña,
`37 F.3d 671 (D.C. Cir. 1994) ........................ passim
`Dep’t of Commerce v. New York,
`139 S. Ct. 2551 (2019) ................................... 5, 7, 9
`Edison Elec. Inst. v. EPA,
`996 F.2d 326 (D.C. Cir. 1993) ............................. 11
`FCC v. Fox Television Stations, Inc.,
`556 U.S. 502 (2009) ............................................. 20
`FEC v. Akins,
`524 U.S. 11 (1998) ......................................... 10, 21
`Franklin v. Massachusetts,
`505 U.S. 788 (1992) ............................................. 10
`Gulf Restoration Network v. McCarthy,
`783 F.3d 227 (5th Cir. 2015) ............................... 13
`Heckler v. Chaney,
`470 U.S. 821 (1985) ...................................... passim
`
`
`
`
`iii
`
`ICC v. B’hood of Locomotive Eng’rs,
`482 U.S. 270 (1987) ............................................. 18
`INS v. St. Cyr,
`533 U.S. 289 (2001) ............................................. 20
`Kenney v. Glickman,
`96 F.3d 1118 (8th Cir. 1996) ......................... 13, 16
`Lincoln v. Vigil,
`508 U.S. 182 (1993) ........................................... 7, 9
`Mach Mining, LLC v. EEOC,
`135 S. Ct. 1645 (2015) ....................................... 6, 7
`Massachusetts v. EPA,
`549 U.S. 497 (2007) ..................................... 7, 9, 10
`Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
`State Farm Mut. Auto. Ins. Co.,
`463 U.S. 29 (1983) ............................................... 20
`Nat’l Wildlife Fed’n v. EPA,
`980 F.2d 765 (D.C. Cir. 1992) ............................. 11
`OSG Bulk Ships, Inc. v. United States,
`132 F.3d 808 (D.C. Cir. 1998) ....................... 12, 13
`Ringo v. Lombardi,
`706 F. Supp. 2d 952 (W.D. Mo. 2010) ................. 15
`Riverkeeper, Inc. v. Collins,
`359 F.3d 156 (2d Cir. 2004) ........................... 13, 14
`Roane v. Holder,
`607 F. Supp. 2d 216 (D.D.C. 2009) ..................... 15
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015), aff’d by equally
`divided Court, 136 S. Ct. 2271 (2016) ................. 13
`Webster v. Doe,
`486 U.S. 592 (1988) ....................................... 10, 20
`
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`iv
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`Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.,
`139 S. Ct. 361 (2019) ......................................... 6, 7
`WildEarth Guardians v. DOJ,
`752 F. Appx. 421 (9th Cir. 2018) ......................... 14
`WildEarth Guardians v. DOJ,
`181 F. Supp. 3d 651 (D. Ariz. 2015) .................... 14
`
`
`Constitutional Provisions, Statutes, and Rules:
`5 U.S.C. §§ 701–706 .................................................... 5
`5 U.S.C. § 701(a) ..................................................... 3, 5
`5 U.S.C. § 701(a)(1) ..................................................... 6
`5 U.S.C. § 701(a)(2) ............................... 2, 6, 7, 8, 9, 16
`5 U.S.C. § 704 .............................................................. 5
`5 U.S.C. § 706(2)(A) ...................................... 3, 6, 7, 10
`
`Other:
`Office of Legal Counsel, U.S. Department of Justice,
`The Department of Homeland Security’s Authority
`to Prioritize Removal of Certain Aliens
`Unlawfully Present in the United States and to
`Defer Removal of Others (Nov. 19, 2014),
`2014 WL 10788677 ........................................ 15, 16
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`INTEREST OF AMICI CURIAE1
`Amicus Curiae Public Citizen, Inc., is a nonprofit
`advocacy organization founded in 1971. Public Citizen
`appears on behalf of its nationwide membership be-
`fore Congress, administrative agencies, and courts on
`a range of issues, including protection of consumers
`and workers and fostering open and fair governmental
`processes.
`Amicus curiae Natural Resources Defense Council,
`Inc., (NRDC) is a nonprofit advocacy group that works
`to protect health and the environment. Since its
`founding in 1970, NRDC has pursued this goal
`through science, policy analysis, advocacy before
`agencies and legislatures, and litigation to enforce en-
`vironmental laws.
`The American Civil Liberties Union (ACLU) is a
`nationwide, nonprofit, nonpartisan organization with
`nearly 2 million members and supporters dedicated to
`the principles of liberty and equality embodied in our
`nation’s Constitution and civil rights laws. The ACLU,
`through its Immigrants’ Rights Project and state affil-
`iates, engages in a nationwide program of litigation,
`advocacy, and public education to enforce and protect
`the constitutional and civil rights of noncitizens.
`Amici have litigated hundreds of cases seeking ju-
`dicial review of government actions under the Admin-
`istrative Procedure Act (APA), special review provi-
`sions applicable to particular statutes, and nonstatu-
`tory mechanisms for review of unlawful government
`––––––––––––––––––––––––
`1 This brief was not authored in whole or part by counsel for
`a party. No one other than amici curiae made a monetary contri-
`bution to preparation or submission of the brief. Counsel for all
`parties have filed blanket consents to the filing of amicus briefs.
`
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` 2
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`action. It is critical to the mission of these organiza-
`tions that courts adhere to the principle that agency
`action is presumptively subject to judicial review, with
`exceptions to reviewability narrowly construed. In
`their own litigation, amici confront arguments by gov-
`ernmental defendants that agency actions reflect un-
`reviewable exercises of enforcement discretion or are
`otherwise committed to agency discretion by law.
`Amici therefore have a strong interest in confining to
`their proper sphere these exceptions to the availabil-
`ity of judicial review.
`In this case, the government petitioners argue that
`their decision to rescind the Deferred Action for Child-
`hood Arrivals (DACA) program was an exercise of en-
`forcement discretion that is unreviewable under Heck-
`ler v. Chaney, 470 U.S. 821 (1985). For a generation
`since Chaney, however, courts have recognized that
`that decision bars review of discretionary decisions
`not to commence particular enforcement actions, not
`of agencies’ adoption of general policies affecting en-
`forcement decisions. The government’s brief, however,
`does not address this body of law. Amici therefore sub-
`mit this brief to provide a more complete account of
`the boundaries of Chaney’s exception to the general
`presumption favoring judicial review.
`SUMMARY OF ARGUMENT
`The government’s principal submission in this case
`is that its decision to rescind DACA “is a quintessen-
`tial exercise of enforcement discretion” that is unre-
`viewable under the APA because it is “‘committed to
`agency discretion by law.’” U.S. Br. 17 (quoting 5
`U.S.C. § 701(a)(2)). Invoking Heckler v. Chaney’s hold-
`ing that section 701(a)(2) “precludes review … of an
`agency’s decision not to
`institute enforcement
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`actions,” id. (citing 470 U.S. at 831), the government
`contends that that holding also extends to agency ac-
`tions adopting or rescinding a “policy of nonenforce-
`ment,” id. at 17, 19. As respondents explain, section
`701(a)(2) cannot apply here because, in rescinding
`DACA, the Secretary of Homeland Security did not
`purport to exercise any enforcement discretion, but in-
`stead bowed to the Attorney General’s determination
`that DACA was unlawful. See, e.g., D.C. Resp. Br. 22–
`30. Even leaving that point aside, however, the gov-
`ernment’s argument depends entirely on its assertion
`that Heckler v. Chaney is applicable to “a broad and
`categorical decision to rescind a nonenforcement pol-
`icy.” Id. at 21. The government’s position that Chaney
`applies to actions promulgating enforcement policies
`is contrary to decades of case law in the federal courts
`recognizing that Chaney’s reasoning does not extend
`to such agency actions.
`The APA embodies a broad presumption in favor of
`judicial review of agency action. Persons aggrieved by
`final agency action may generally obtain review in the
`courts unless the action falls within two narrow excep-
`tions applicable when (1) other statutes “preclude ju-
`dicial review,” or (2) the action is “committed to agency
`discretion by law.” 5 U.S.C. § 701(a). The second ex-
`ception, at issue here, does not apply broadly to all ex-
`ercises of agency discretion; indeed, the APA else-
`where explicitly provides for review of discretionary
`agency actions. See 5 U.S.C. § 706(2)(A). As this Court
`has repeatedly held, the “committed to agency discre-
`tion by law” exception applies only to narrow catego-
`ries of agency actions that have traditionally been ex-
`cluded from the scope of judicial review because courts
`have no meaningful standards against which to re-
`view them.
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`The kind of action that was the subject of Heckler
`v. Chaney—an agency decision not to initiate an en-
`forcement proceeding—is one of the few examples of
`agency action that this Court has determined falls
`within that exception. Chaney, however, does not
`broadly immunize from review all agency actions that
`arguably implicate an agency’s enforcement discre-
`tion. Chaney focused narrowly on the longstanding ju-
`dicial tradition of declining review of agency decisions
`not to undertake enforcement actions, and on reasons
`for denying review that are specific to such decisions
`and inapplicable when an agency adopts a general pol-
`icy that governs its enforcement decisions. This Court
`has, therefore, consistently described Chaney as lim-
`ited to agency decisions not to initiate enforcement
`proceedings.
`Based on the limits of Chaney’s holding and rea-
`soning, the lower federal courts, in the decades since
`that decision, have elaborated a workable and princi-
`pled distinction between unreviewable actions declin-
`ing to initiate particular enforcement proceedings,
`and reviewable actions promulgating general rules or
`policies affecting agency enforcement. This case law
`respects the judicial tradition of noninterference with
`agency nonenforcement decisions that lies at the heart
`of Chaney. At the same time, the courts have properly
`subjected agency actions that fall outside that tradi-
`tion to review for conformity with law and the APA’s
`prohibition of arbitrary and capricious agency action.
`As this body of case law reflects, the promulgation of
`general policies affecting agency enforcement is well-
`suited to such judicial review.
`for expanding
`The government’s arguments
`Chaney’s preclusion of review to encompass generally
`applicable agency policies are unconvincing. The
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`government points to no tradition against review of
`agency policies comparable to the one Chaney identi-
`fied with respect to decisions not to initiate enforce-
`ment proceedings. And contrary to the government’s
`characterization, Chaney did not purport to address
`general, “programmatic” actions. The nonenforcement
`decision in Chaney may have reflected the agency’s
`general policy views, but the Court rejected review be-
`cause of the form the agency’s action took—a decision
`not to initiate enforcement proceedings—not because
`enforcement-related policies are inherently unreview-
`able. General rules or policies are amenable to review
`not only for conformity to statutory mandates, but also
`for their adherence to norms of reasoned explanation
`applicable to agency action generally. Far from in-
`fringing on separation-of-powers principles, as the
`government suggests, such review is a proper and im-
`portant exercise of the courts’ power to confine the ex-
`ecutive branch to the lawful exercise of authority del-
`egated by Congress.
`ARGUMENT
`I. This Court’s decisions, including Chaney,
`have narrowly construed
`the APA’s
`exceptions to judicial review.
`The starting-point for consideration of the govern-
`ment’s argument against judicial review is the long-
`established principle that the APA’s provisions for ju-
`dicial review, set forth at 5 U.S.C. §§ 701–706, “em-
`bod[y] a ‘basic presumption of judicial review.’” Dep’t
`of Commerce v. New York, 139 S. Ct. 2551, 2567 (2019)
`(citation omitted). That presumption is set forth in
`section 704, which generally makes “final agency ac-
`tion … subject to judicial review,” and section 701(a),
`which creates narrow exceptions to the availability of
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`review only “to the extent that—(1) statutes preclude
`judicial review; or (2) agency action is committed to
`agency discretion by law.”
`As this Court has repeatedly emphasized, these
`provisions reflect that “Congress rarely intends to pre-
`vent courts from enforcing its directives to federal
`agencies.” Mach Mining, LLC v. EEOC, 135 S. Ct.
`1645, 1651 (2015). The APA’s language and structure
`manifest Congress’s choice to provide remedies for the
`“legal lapses and violations” that are especially likely
`to occur “when they have no consequence.” Id. at
`1652–53. “For that reason, this Court applies a ‘strong
`presumption’ favoring judicial review of administra-
`tive action.” Id. at 1651 (quoting Bowen v. Mich. Acad.
`of Family Physicians, 476 U.S. 667, 670 (1986)). Con-
`sistent with that strong presumption, the Court has
`read the APA’s exceptions to judicial review narrowly
`and imposed on agencies “a ‘heavy burden’ in attempt-
`ing to show that Congress ‘prohibit[ed] all judicial re-
`view’” of their actions. Id. (citation omitted).
`In this case, the government suggests only glanc-
`ingly that applicable statutes “preclude judicial re-
`view” within the meaning of section 701(a)(1), see U.S.
`Br. 20–21; it relies principally on section 701(a)(2)’s
`exception for “agency action … committed to agency
`discretion by law.” This Court has explained, however,
`that section 701(a)(2) does not preclude review of all
`discretionary agency actions: If it did, it would contra-
`dict “the command in § 706(2)(A) that courts set aside
`any agency action that is ‘arbitrary, capricious, an
`abuse of discretion, or otherwise not in accordance
`with law.’” Weyerhaeuser Co. v. U.S. Fish & Wildlife
`Serv., 139 S. Ct. 361, 370 (2019). “A court could never
`determine that an agency abused its discretion if all
`matters committed
`to agency discretion were
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`unreviewable.” Id. Thus, “[t]o give effect to § 706(2)(A)
`and to honor the presumption of review, we have read
`the exception in § 701(a)(2) quite narrowly, restricting
`it to ‘those rare circumstances where the relevant stat-
`ute is drawn so that a court would have no meaningful
`standard against which to judge the agency’s exercise
`of discretion.’” Id. (quoting Lincoln v. Vigil, 508 U.S.
`182, 191 (1993)); accord, Dep’t of Commerce, 139 S. Ct.
`at 2568.
`In keeping with this narrow reading of section
`706(a)(2), the Court has restricted it to the types of
`decisions that courts “traditionally” recognized as un-
`reviewable under the “common law” of judicial review
`that preceded the APA’s enactment. Chaney, 470 U.S.
`at 832. Thus, “[t]he few cases in which [this Court]
`ha[s] applied the § 701(a)(2) exception involved
`agency decisions that courts have traditionally re-
`garded as unreviewable,” not types of actions “that
`federal courts regularly review.” Weyerhaeuser, 139 S.
`Ct. at 370. Chaney is one of the rare instances in which
`the Court identified a narrow type of action—“a deci-
`sion not to institute enforcement proceedings”—that
`is “traditionally committed to agency discretion.” Dep’t
`of Commerce, 139 S. Ct. at 2568. This Court has con-
`sistently refused to give Chaney a more expansive
`reading, see, e.g., id.; Weyerhaeuser, 139 S. Ct. at 370;
`Mach Mining, 135 S. Ct. at 1652; Massachusetts v.
`EPA, 549 U.S. 497, 527 (2007).
`II. Chaney’s holding is limited to agency
`decisions not to
`initiate enforcement
`proceedings.
`Chaney involved a challenge to the failure of the
`Food and Drug Administration (FDA) to take enforce-
`ment action against the use of unapproved drugs for
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`execution of prisoners facing death sentences. This
`Court framed the issue before it in accordingly narrow
`terms as one involving “the extent to which determi-
`nations by the FDA not to exercise its enforcement au-
`thority over the use of drugs in interstate commerce
`may be judicially reviewed.” 470 U.S. at 828. While
`emphasizing the breadth of the presumption in favor
`of judicial review under the APA and the narrowness
`of the exception for actions “committed to agency dis-
`cretion by law,” 5 U.S.C. § 701(a)(2), the Court held
`that the presumption was inapplicable to “an agency’s
`decision not to undertake certain enforcement ac-
`tions,” 470 U.S. at 831, because of the “general unsuit-
`ability for judicial review” of such decisions, id. The
`Court went on to explain that “general unsuitability”
`in terms that made plain that the decisions it deemed
`unsuitable for judicial review were decisions to for-
`bear from taking particular enforcement actions:
`[A]n agency decision not to enforce often involves
`a complicated balancing of a number of factors
`which are peculiarly within its expertise. Thus,
`the agency must not only assess whether a viola-
`tion has occurred, but whether agency resources
`are best spent on this violation or another,
`whether the agency is likely to succeed if it acts,
`whether the particular enforcement action re-
`quested best fits the agency’s overall policies,
`and, indeed, whether the agency has enough re-
`sources to undertake the action at all. An agency
`generally cannot act against each technical viola-
`tion of the statute it is charged with enforcing.
`Id. at 831–32 (emphasis added).
`The Court accordingly held “agency refusals to in-
`stitute investigative or enforcement proceedings” to be
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`presumptively unreviewable. Id. at 838. Justice Bren-
`nan, concurring, agreed that “[t]his general presump-
`tion 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 en-
`forcement decisions, and there often may not exist
`readily discernible ‘law to apply’ for courts to conduct
`judicial review of nonenforcement decisions.” Id. at
`838 (Brennan, J., concurring). The Court recognized,
`moreover, that situations in which an agency “con-
`sciously and expressly adopted a general policy” incon-
`sistent with statutory responsibilities were not con-
`trolled by its holding. Id. at 833 n.4 (majority). Justice
`Brennan likewise distinguished such policies from the
`“[i]ndividual, isolated nonenforcement decisions” that
`the Court’s holding addressed. Id. at 839 (Brennan, J.,
`concurring).
`Thus, this Court’s subsequent decisions have con-
`sistently characterized Chaney’s holding as narrowly
`applicable to decisions to forgo enforcement actions,
`not as establishing a broad exemption from the APA
`for all agency actions that touch in any way on how an
`agency exercises enforcement authority. Last Term,
`for example, the Court described Chaney as making “a
`decision not to institute enforcement proceedings” pre-
`sumptively unreviewable. Dep’t of Commerce, 139 S.
`Ct. at 2568. Likewise, in Massachusetts v. EPA, the
`Court noted Chaney’s holding “that an agency’s re-
`fusal to initiate enforcement proceedings is not ordi-
`narily subject to judicial review.” 549 U.S. at 527. The
`Court’s decision in Lincoln v. Vigil used an almost
`identical characterization: “In Heckler itself, we held
`an agency’s decision not to institute enforcement pro-
`ceedings to be presumptively unreviewable under
`§ 701(a)(2).” 508 U.S. at 191. Every other case in
`
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`10
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`which the Court has described Chaney’s holding uses
`equivalent terms. See, e.g., FEC v. Akins, 524 U.S. 11,
`26 (1998); Franklin v. Massachusetts, 505 U.S. 788,
`818 (1992); Webster v. Doe, 486 U.S. 592, 599 (1988).
`Both in promulgating DACA, and in rescinding it,
`the government adopted policies concerning criteria
`determining whether a noncitizen will be permitted to
`remain in the United States. Those actions were not
`decisions to forgo specific enforcement actions. Nei-
`ther Chaney nor any of this Court’s decisions following
`it has held that the APA precludes review of actions
`promulgating general policies such as DACA’s rescis-
`sion. Indeed, as noted above, Chaney itself distin-
`guished the adoption of general policies from decisions
`not to institute enforcement proceedings. Likewise,
`Massachusetts v. EPA explained why similar ac-
`tions—denials of rulemaking petitions
`involving
`whether or not to promulgate policies governing an
`agency’s enforcement of the statutes it administers—
`do not fall within Chaney’s ambit: Unlike “an agency’s
`decision not to initiate an enforcement action,” such
`actions “are less frequent, more apt to involve legal as
`opposed to factual analysis,” and involve “a public ex-
`planation” of the agency’s action. 549 U.S. at 527 (ci-
`tation omitted). Those features enhance the amenabil-
`ity of such actions to review aimed at determining
`whether they are “arbitrary and capricious, an abuse
`of discretion, or otherwise not in accordance with law.”
`5 U.S.C. § 706(2)(A).
`
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`11
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`III. Consistent with Chaney, lower federal
`courts have held that agency actions
`promulgating general enforcement-related
`policies are reviewable.
`In accordance with the limits on this Court’s ra-
`tionale in Chaney, the lower courts have for decades
`developed a workable distinction between discretion-
`ary decisions declining to initiate enforcement pro-
`ceedings, which are presumptively unreviewable un-
`der Chaney, and actions promulgating policies that
`guide an agency’s enforcement or nonenforcement de-
`terminations, which fall outside Chaney’s narrow
`scope. This line of precedent fully respects exercises of
`discretion not to take enforcement action that are tra-
`ditionally not subject to judicial review. Where that
`tradition is inapplicable, however, courts have given
`effect to the APA’s broad presumption favoring review
`by allowing agency actions to be tested for abuse of
`discretion and compliance with law when meaningful
`standards for review are available.
`Given its significant role in developing and apply-
`ing principles of administrative law, the D.C. Circuit
`has played an active part in fleshing out this distinc-
`tion. That court has repeatedly held that an agency’s
`adoption of rules or general policies establishing crite-
`ria for enforcement is reviewable. See, e.g., Edison
`Elec. Inst. v. EPA, 996 F.2d 326 (D.C. Cir. 1993); Nat’l
`Wildlife Fed’n v. EPA, 980 F.2d 765 (D.C. Cir. 1992).
`In Crowley Caribbean Transport, Inc. v. Peña, 37 F.3d
`671 (1994), for example, the D.C. Circuit explained
`that, under Chaney, “an agency’s statement of a gen-
`eral enforcement policy may be reviewable for legal
`sufficiency where the agency has expressed the policy
`as a formal regulation after the full rulemaking
`
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`12
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`process … or has otherwise articulated it in some form
`of universal policy statement.” Id. at 676.
`Crowley identified three reasons why Chaney’s
`presumption that a decision to forgo initiating an en-
`forcement proceeding is unreviewable does not apply
`to an agency’s promulgation of a general enforcement
`(or nonenforcement) policy. First, because enforce-
`ment policies are not tied to the particular facts of an
`individual enforcement action, “they are more likely to
`be direct interpretations of the commands of the sub-
`stantive statute rather than the sort of mingled as-
`sessments of fact, policy, and law that drive an indi-
`vidual enforcement decision and that are, as Chaney
`recognizes, peculiarly within the agency’s expertise
`and discretion.” Id. at 677. Second, an agency’s state-
`ment of a policy regarding enforcement “poses special
`risks” that the agency “has consciously and expressly
`adopted a general policy that is so extreme as to
`amount to an abdication of its statutory responsibili-
`ties,” id. (quoting Chaney, 470 U.S. at 833 n.4), ren-
`dering a presumption of nonreviewability “inappropri-
`ate.” Id. “Finally, an agency will generally present a
`clearer (and more easily reviewable) statement of its
`reasons for acting when formally articulating a
`broadly applicable enforcement policy, whereas such
`statements in the context of individual decisions to
`forego enforcement tend to be cursory, ad hoc, or post
`hoc.” Id.
`Based on these considerations, Crowley articu-
`lated, and the D.C. Circuit has subsequently followed,
`a generally applicable corollary to Chaney: While
`“agencies’ nonenforcement decisions are generally un-
`reviewable under the Administrative Procedure Act,
`… an agency’s adoption of a general enforcement pol-
`icy is subject to review.” OSG Bulk Ships, Inc. v.
`
`
`
`
`13
`
`United States, 132 F.3d 808, 812 (D.C. Cir. 1998)
`(holding that courts could review the federal Maritime
`Administration’s policy of not enforcing restrictions on
`use of ships constructed with federal subsidies).
`Other circuits have similarly held that Chaney
`does not extend to “permanent policies or standards.”
`Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir.
`1996) (rejecting Secretary of Agriculture’s contention
`that a policy of not enforcing a zero-tolerance standard
`for contaminated poultry was unreviewable under
`Chaney); see also Gulf Restoration Network v. McCar-
`thy, 783 F.3d 227, 236 (5th Cir. 2015) (citing Crowley
`and holding that EPA’s determination whether to
`promulgate a “broadly applicable … policy” was not an
`exercise of unreviewable enforcement discretion un-
`der Chaney); cf. Texas v. United States, 809 F.3d 134,
`168 (5th Cir. 2015) (finding DHS’s action creating the
`Deferred Action for Parents of Americans and Lawful
`Permanent Residents program to be reviewable under
`Chaney), aff’d by equally divided Court, 136 S. Ct.
`2271 (2016).
`The Second Circuit, in Riverkeeper, Inc. v. Collins,
`359 F.3d 156, 167 (2004), also approvingly cited the
`distinction drawn by Crowley between reviewable en-
`forcement policies and unreviewable individual non-
`enforcement decisions. Riverkeeper was a challenge to
`the failure of the Nuclear Regulatory Commission
`(NRC) to require certain security measures as condi-
`tions on its licensing of a nuclear power plant. The
`challenger argued that the NRC’s inaction was re-
`viewable because it reflected a general policy of failing
`to enforce adequate security requirements. The court
`endorsed Crowley’s explanation of why Chaney does
`not preclude review of an agency’s explicit adoption of
`an enforcement policy, see id. (quoting Crowley, 37
`
`
`
`
`14
`
`F.3d at 677), but found that the NRC had not explicitly
`“express[ed]” a “broad enforcement polic[y],” id. The
`court then examined the record to see if it could dis-
`cern a reviewable “policy not to protect adequately
`public health and safety with respect to nuclear
`plants,” id. at 168, and, finding no such policy, held
`that Chaney precluded review of the agency’s failure
`to take enforcement action in the case before it, id. at
`170. Riverkeeper thus illustrates that the permissible
`review of general policies that guide enforcement does
`not encroach on the space occupied by Chaney.
`Applying these principles, district courts, in the
`nearly quarter-century since Crowley, have reviewed
`agencies’ adoption of express enforcement policies in
`the relatively infrequent cases where agencies take
`such actions and face APA challenges. For example, in
`WildEarth Guardians v. DOJ, 181 F. Supp. 3d 651,
`665 (D. Ariz. 2015), the court cited Crowley in support
`of its holding that Chaney did not bar review of the
`Department
`of
`Justice’s
`formally
`expressed
`“McKittrick policy” authorizing prosecutors to request
`specific intent rather than general intent instructions
`in certain cases.2 In Chiang v. Kempthorne, 503 F.
`Supp. 2d 343, 351 (D.D.C. 2007), the court held that
`guidelines limiting the time periods for which the gov-
`ernment could seek to recover royalties from mineral
`lessees constituted a reviewable general enforcement
`policy rather than an unreviewable decision not to
`take enforcement action under Chaney. And in Center
`for Auto Safety, Inc. v. NHTSA, 342 F. Supp. 2d 1
`––––––––––––––––––––––––
`2 The Ninth Circuit ultimately vacated the district court’s
`later decision granting summary judgment to the plaintiffs, for
`lack of standing. WildEarth Guardians v. DOJ, 752 F. Appx. 421
`(9th Cir. 2018). The court of appeals did not address Chaney.
`
`
`
`
`15
`
`(D.D.C. 2004), aff’d on other grounds, 452 F.3d 798
`(D.C. Cir. 2006), the court held that Chaney was inap-
`plicable to a challenge to an agency’s practice of en-
`forcing auto recalls on a regional but not national ba-
`sis because it was not a “single-shot non-enforcement
`decision.” Id. at 12 (quoting Crowley, 37 F.3d at 676).
`See also, e.g., Ringo v. Lombardi, 706 F. Supp. 2d 952
`(W.D. Mo. 2010) (holding that Chaney does not pre-
`clude review of a general policy of nonenforcement of
`the Controlled Substances Act with respect to lethal-
`injection drugs); Roane v. Holder, 607 F. Supp. 2d 216,
`226–27 (D.D.C. 2009) (same). The cases illustrate that
`the appellate decisions have set forth a workable
`standard and that application of that standard has
`neither displaced Chaney from its proper sphere nor
`resulted in torrents of litigation.
`The Department of Justice has also recognized the
`well-established distinction between exercises of dis-
`cretion to forgo an enforcement action and general en-
`forcement policies that fall outside Chaney’s holding.
`In its formal opinion concerning the lawfulness of de-
`ferred action programs for noncitizens unlawfully pre-
`sent in the United States, the Department’s Office of
`Legal Counsel (OLC) extensively discussed Chaney
`and the limitations of its holding. See OLC, The De-
`partment of Homeland Security’s Authority to Priori-
`tize Removal of Certain Aliens Unlawfully Present in
`the United States and to Defer Removal of Others (Nov.
`19, 2014), 2014 WL 10788677.
`OLC’s opinion stressed two points significant here.
`First, OLC stated that agencies “ordinarily” may not
`“‘consciously and expressly adopt[] a general policy’”
`that abdicates statutory responsibilities. Id., 2014 WL
`10788677, at *