Diebold v. United States ( 1992 )

ORDER DENYING PETITION FOR REHEARING

The full court has denied the petition of the Department of Justice for en banc review. Although our dissenting colleague states that “a majority of those voting would have directed review,” the parties should not be misled by this statement. The vote of the court, recorded January 30, 1992, when there were thirteen members of the court, was nine against en banc review, four for review. We do not understand our colleague’s meaning. Under our procedure all members of the court know that there are two ways to effectively vote against an en banc petition. One way is to send in a recorded vote against it. The other way is simply to fail to vote in favor of en banc review. In this case nine members of the court either voted against the petition or did not vote in favor of the petition, thereby effectively casting their vote against en banc review.

This case for some reason has caused more than the usual degree of consternation on the part of the losing party. In what we consider to be a less than respectful petition for rehearing, counsel for the Department of Justice quotes thrice, and bases his main argument on, the following language from Circular A-76:

This Circular and its supplement shall not ... establish and shall not be construed to create any substantive or procedural basis for anyone to challenge any agency action or inaction on the basis that such action or inaction was not in accordance with this Circular.

Counsel for the Justice Department contends on this basis that the administrative agency in question, the Office of Federal Procurement Policy, is entitled to control by executive decision the jurisdiction of Article III federal courts to review the agency’s administrative action under the Administrative Procedure Act.

Neither Government counsel nor our dissenting colleague provides authority — statutory, case law, scholarly or otherwise— for the proposition that an executive agency may validly decide and declare that it does not wish its actions to be reviewed by an Article III court under the Administrative Procedure Act. It is understandable that many agencies and critics of the courts would prefer that the executive branch be left alone without judicial review, but our research discloses no case, statute or theory which leaves it to the agency in question to decide whether it prefers to omit judicial review of its actions. Congress decided that question when it adopted § 10 of the Administrative Procedure Act which requires judicial review of final agency action. The Supreme Court has observed in Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should courts restrict access to judicial review.” The Court has repeated this same requirement in many later opinions. See, e.g., Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 156, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 166-67, 90 S.Ct. 832, 837-38, 25 L.Ed.2d 192 (1970); Tooahnippah v. Hickel, 397 U.S. 598, 606, 90 S.Ct. 1816, 1321, 25 L.Ed.2d 600 (1970); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1858, 44 L.Ed.2d 377 (1975); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986); Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988). The question under the Administrative Procedure Act is what is the intent of Congress, not the intent of the executive agency whose action is being reviewed. It is the function of courts established under Article III of the Constitution to interpret the Administrative Procedure Act concerning the right of citizens to obtain judicial review, not the function of executive agencies to determine whether they wish to be reviewed by courts or not.

Contrary to the argument of counsel, we do not believe that the agency itself intended by its language to reserve unto itself the authority to determine judicial review:

The [internal agency] appeals procedure is to provide an administrative safeguard to ensure that agency decisions are fair and equitable and in accordance with procedures in Part IV of this Supplement. The procedure does not authorize an appeal outside the agency or a judicial review.

The appeals procedure must be independent and objective and provide for a decision within 30 calendar days of receipt of the appeal_ The original appeal decision shall be final unless the agency procedures provide for further discretionary review.

Circular Supplement, Part I, Para. 1(2) & (3). See also 32 C.F.R. § 169a.l8.

This language seems designed to insure that nothing stated in the language which creates the agency appeals process should be read in itself to establish judicial review. The agency itself does not seem to try to forbid Article III courts from exercising their normal functions as the Justice Department strongly contends. We therefore reject the petition of the Department of Justice to reverse our opinion holding that the executive branch may not decide for itself the question whether the authority in question is exclusively committed to agency discretion.

We have previously discussed at length the case law in this area and continue to believe that our decision here is consistent with previous authority. 947 F.2d 787, 801-810 (1991). We adhere to our panel decision.