norml23 - Page 78
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reasoned opinions. When administrators provide a
framework for principled decision-making, the
result will be to diminish the importance of
judicial review by enhancing the integrity of the
administrative process, and to improve the quality
of judicial review in those cases where judicial
review is sought.
Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584., 597_98
(1 971 ) (footnotes omitted).
Although, as Professor Davis notes in the Treatise, Vol. 2 at page
244., the post-19374 cases form a rather "consistent body of law" with
respect to review of affirmative agency decisions, it is necessary to
comment briefly on two important decisions which preceded the recent
pronouncement in Industrial Union Department, supra. In Morton v. Ruiz,
4t 5 U.S. 199 (1 974), a unanimous Supreme Court established a "main
fountain-head for new law that limits agency discretion," Treatise,
Vol. 2, at 161o The court held that: (1) the power to administer a
program "necessarily requires.., the making of rufeSo" 41 5 U.S. at
23t. Second, the court held that agency policy is "ineffective, unless
it is embodied in a legislative-type rule." Id. at 2.36. Finally, the
court held that the APA forbids "unpubJished ad hoc determinations."
ld.
Next, in Dunlop vo Bachowski, 421 U.S. 560 (1975), the court
extended the principles previousJy developed to require judicial review
of the refusal of an agency head to exercise his discretionary powers
(in that case, the refusal to exercise what has historically been
regarded as the quintessential example of prosecutorial discretion: the
decision whether to prosecute). Both the District Court and the Third
Circuit Court of Appeals had held that the provision in the Labor-
Management Reporting and Disclosure Act (29 U.SoCo 482(b)) that the
Secretary of Labor "shalF' investigate complaints of violations and
"shai_ bring a civil action, subject the Secretary's decision not to
bring suit to judicial review." The Supreme Court affirmed the tower
court decisions, with the comment that the Secretary bears the heavy
burden of overcoming the strong presumption" that judicial review of
his non-action is appropriate. 421 U.S. at 567.
D. Conclusions
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