on appeal from order directing FDIC to determine whether bank could be permitted to sell mutual fund shares and enjoining bank from selling such shares pending that determination, court could decide whether statutory scheme committed to unreviewable agency discretion FDIC's decision not to take up and decide the question
How later courts described this case
- on appeal from order directing FDIC to determine whether bank could be permitted to sell mutual fund shares and enjoining bank from selling such shares pending that determination, court could decide whether statutory scheme committed to unreviewable agency discretion FDIC's decision not to take up and decide the question
- noting that the existence of alternative avenues for relief weighs against judicial review under the APA
- “Order was unambiguously a categorical injunction.”
- “An agency’s decision to refrain from an investigation or an enforcement action is generally unreviewable . . . .”
Written by the judges who cited it.
The opinion
J. SKELLY WRIGHT, Circuit Judge,
dissenting:
I would stay further action in this appeal until the District Court conducts contempt proceedings with respect to alleged refusals to comply with its discovery order dated May 27, 1982. See Cobbledick v. United States, 309 U.S. 323 , 60 S.Ct. 540 , 84 L.Ed. 783 (1940); Alton & So. R. Co. v. Int’l Ass’n of Machinists & Aerospace Wkrs, 463 F.2d 872, 878-880 (D.C.Cir.1972). *
I respectfully dissent.
Were I to reach the merits of this controversy, I would point out that the majority opinion fails to follow the law of this circuit when it states that exercises of agency enforcement discretion are generally unreviewable. Majority opinion at 527 & n. 7. In Chaney v. Heckler, 718 F.2d 1174 (D.C.Cir.1983), rehearing denied 724 F.2d 1030 (D.C.Cir.1984), this court rejected that position. In Chaney this court stated: “Though some courts have traditionally displayed reluctance to review exercises of enforcement discretion, the Supreme Court has consistently instructed us to construe narrowly the ‘committed to agency discretion’ exception, * * * [and] [t]his admonishment applies with no less force to review of agency enforcement discretion, including agency decisions to refrain from enforcement action. Dunlop v. Bachow-ski, supra, 421 U.S. 560 [ 95 S.Ct. 1851 , 44 L.Ed.2d 377 ].” 718 F.2d at 1184 . With respect to the majority’s efforts in footnote 7 to evade without even distinguishing the clear holding in Chaney , it must be noted that the majority has a most selective ear for “the stifled cry of smothered stare decisis.” Id. at 1198 (dissenting opinion).