THE ADMINISTRATIVE LAW OF CRIMINAL PROSECUTION: THE DEVELOPMENT OF

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1 THE ADMINISTRATIVE LAW OF CRIMINAL PROSECUTION: THE DEVELOPMENT OF PROSECUTORIAL POLICY LELAND E. BECK* Page I. INTRODUCTION II. A PRIMER ON FEDERAL CRIMINAL PROSECUTORIAL POLICY III. IV. THE FEASIBILITY OF AN ADMINISTRATIVE LAW MODEL FOR STRUCTURING PROSECUTORIAL DISCRETION A. Administrative Law Principles Applied to Criminal Law Enforcement B. Federal Court Jurisdiction to Review Agency Action C. Limitations on Reviewability APA nonreviewability A functional analysis of the common law D. Summary THE VALIDITY OF ARGUMENTS MADE AGAINST ARTICULATING PROSECUTORIAL POLICY A. Authority to Establish Policy B. Practicality of Developing Policy * Member of the District of Columbia Bar. B.A., 1973, M.A., 1975, Kent State University; J.D., 1977, Washington College of Law, The American University. I wish to thank Dr. David E. Aaronson of the Washington College of Law for initially bringing to my attention the questions discussed in this article and for his continuing critique of the analysis. I would also like to thank my colleagues at the Department of Justice, where I clerked during , for their comments, as well as counsel of several congressional committees and others at the Washington College of Law for their advice on various drafts. The views expressed herein do not necessarily reflect the position of the Department of Justice or any other agency of the federal government, but are solely those of the author.

2 1978] PROSECUTORIAL POLICY C. Publication of Articulated Enforcement Policies and Guidelines Must policy be disclosed? Should policy be disclosed? D. Litigabilitv: The Sheep in Wolf's Clothing Confession of error Investigatory policy and constitutional guarantees: the IRS experience with delegated authority Judicial enforcement of internal prosecutorial policy in defendants' favor E. Sum m ary V. PROSPECTUS: THE DEVELOPMENT OF PROSECUTORIAL POLICY VI. CONCLUSION I. INTRODUCTION Prosecuting attorneys in the United States Department of Justice traditionally have exercised unfettered discretion in deciding which cases to prosecute. This broad discretion has been both judicially recognized and approved,' yet concern over the impact of this discretion has grown. 2 As the role of the federal prosecutor has expanded, a significant debate has developed concerning the uniformity of prosecutorial decisionmaking across the country. On one side of the debate, illustrated in Part III of this article, commentators have advocated that prosecutorial policy be developed within 1. E.g., Gregg v. Georgia, 428 U.S. 153, 199 (1976) (prosecutor may select whom to prosecute for capital offense and may plea bargain; "nothing in any of our cases suggests that the decision to afford... mercy violates the Constitution"); Furman v. Georgia, 408 U.S. 238 (1972); Confiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1868); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, (2d Cir. 1973); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935 (1965). See also Weisberg v. United States Dep't of Justice, 489 F.2d 1195 (D.C. Cir. 1973) (en banc), cert. denied, 416 U.S. 993 (1974) (recognizing discretion in case reviewing Freedom of Information Act request). 2. Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 U.C.L.A. L. REV. 1 (1971); Bubany & Skillem, Taming the Dragon: An Administrative Law for Prosecutorial Decision Making, 13 AM. CRIM. L. REV. 473 (1976); Ferguson, Formulation of Enforcement Policy: An Anatomy of the Prosecutor's Discretion Prior to Accusation, 11 RUTGERS L. REV. 507 (1957); Friedman, Some Jurisprudential Considerations on Developing an Administrative Law for the Criminal Pre-Trial Process, URB. L. 433 (1974); Neumann, The New Era of Administrative Regularization: Controlling Prosecutorial Discretion Through the Administrative Procedure Act, 3 U. DAYTON L. REV. 23 (1978); Rabin, Agency Criminal Referrals in the Federal System: An Empirical Study of Prosecutorial Discretion, 24 STAN. L. REV (1972); Vorenberg, Narrowing the Discretion of Criminal Justice Officials, 1976 DUKE L. J. 651 (1976).

3 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 27:310 an administrative law model. Professor Kenneth Culp Davis 3 would structure prosecutorial discretion according to the Administrative Procedure Act (APA), 4 and similar proposals have been made by various national advisory committees. 5 The literature on the subject does not indicate coherent trends or significant legal analysis, however, and the administrative law concept has gained less than universal acceptance. This article will examine the administrative law model from a traditional legal perspective, an analysis that is new to the literature. As will be seen, the model has some merit, because the very act of articulating prosecutorial policy may help to channel discretion by focusing prosecutors' effort on uniform policy goals. The administrative model is not the answer in itself, however, because it relies for its effectiveness on authority that does not exist, or on judicial review of administrative action, which probably will not be forthcoming. The more conservative or traditional view of prosecutorial discretion, discussed in Part IV, is best reflected by the structure of the federal prosecutor's office, as no formal spokesman has appeared in the literature. 6 The U.S. Attorney for each judicial district, in theory, is appointed by the President and confirmed by the Senate. 7 In practice, however, senators from the state in which the district lies more often nominate or designate, the President consents, and the Senate confirms. The result of this appointment system is that federal justice is essentially a local concern; 8 therefore objections to a nationally uniform policy of 3. K. DAVIS, ADMINISTRATIVE LAW TEXT (3d ed. 1972); K. DAVIS, DISCRETION- ARY JUSTICE: A PRELIMINARY INQUIRY (1969) [hereinafter cited as DISCRETIONARY JUSTICE]. See, Bubany & Skillern, supra note 2; Neumann, id U.S.C , (1976). 5. E.g., ABA SPECIAL COMM. ON STANDARDS FOR THE ADMINISTRATION OF CRIMINAL JUSTICE, STANDARDS RELATING TO THE PROSECUTION FUNCTION, 2.5 (Approved Draft 1971) [hereinafter cited ABA PROSECUTION STANDARDS]; NATIONAL ADVISORY COMM'N ON CRIMI- NAL JUSTICE STANDARDS AND GOALS, REPORT ON COURTS, Standards 3.3, 12.7 (1973): NA- TIONAL DISTRICT ATTORNEYS ASS'N, NATIONAL PROSECUTION STANDARDS, Standard 6.1 (1977). PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUS- TICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY (1967). See also Kuh, Plea Bargaining: Guidelines for the Manhattan District Attorney's Office, 11 CRIM. L. BULL. 48 (1975). 6. Cf. Malone, Criminal Abuses in the Administration of Private Welfare and Pension Plans: A Proposal for a National Enforcement Program, 1976 So. ILL. U.L.J. 400, (1977) (author, formerly associated with the Department of Justice, does not confront Davis' proposal directly, although he does recommend internal controls) U.S.C. 541 (1970). 8. It is widely acknowledged that this situation exists. Not surprisingly, documentation is quite rare. See, e.g., Removing Politics From the Administration of Justice: Hearings on S.2803 and S.2978 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. 155 (1974) (statement of Nicholas de B. Katzenbach that political influence tends to

4 PROSECUTORIAL POLICY federal prosecution naturally arise. Part IV of this article will address the opposition to Davis' proposal and the arguments most often presented to detract from the merit of articulating policy at all. The first two arguments-that only Congress has the constitutional authority to make the laws, and that no studies have demonstrated that internal controls on discretion are needed-are makeweight arguments. The last two concerns-that policy, once articulated, should not be published, and that if it is published or articulated, it will become litigable-are more substantial. Recent developments in the law, however, demonstrate that concerns about publication and litigabilty do not stand in the way of articulating policy. Indeed, these recent developments actually make it more compelling that the Department of Justice articulate and enforce its policies internally, before courts do intervene in the realm of prosecutorial discretion. The central issue of this article is whether a uniform prosecutorial policy should be articulated and published in some manner that strikes a medium between the full administrative law model and unfettered discretion. To determine whether the American system of justice has a place for such an articulation it is necessary to construct the opposing positions in a legal and political dialectic, as presented in Parts III and IV. Part V responds to the dialectic by suggesting complementary steps to be taken by the Department of Justice, Congress, and the courts, and it profits from the political currents that underlie the entire subject of structuring the scope of prosecutorial discretion. First, however, the reader should be familiar with the state of the art-the scope of presently articulated prosecutorial policy. II. A PRIMER ON FEDERAL CRIMINAL PROSECUTORIAL POLICY The codified federal criminal statutes are too numerous and complex for the Department of Justice and the U.S. Attorneys 9 to enforce comstart at the bottom, locally, because of the appointment process); Ruff, Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy, 65 GEO. L.J. 1171, (1977). Similarly, although the Attorney General supposedly appoints Assistant U.S. Attorneys, in practice, U.S. Attorneys and their senior assistants make the choices. Rabin, supra note 2, at See 28 U.S.C. 542 (1970). 9. The restriction of this article to the 94 U.S. Attorneys and the Department of Justice is a matter of practicality. Although this restriction excludes a wealth of material on state criminal prosecution, the federal criminal prosecutor provides sufficient illustrations for a complete analysis of the problem. In addition, federal administrative law is generally mature and well documented, in contrast to diverse or nonexistent state administrative law. For a survey of related state prosecution issues, see F. MILLER. PROSECUTION: THE DECISION TO CHARGE A SUSPECT WITH A CRIME (1969); Note,

5 314 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 27:310 pletely. Having fewer resources and less time than necessary to pursue all potentially prosecutable criminal investigations, the Department has of necessity made some enforcement decisions, 10 whose impacts range from specific cases to general enforcement policy. The range of opportunities to exercise discretion and the scope of discretion at each decisionmaking point still are broad, however, and best can be illustrated by a survey of the federal prosecutorial process. Although the Department of Justice has not coined specific terms for various types of decisions, this article, for the sake of clarity, shall attach special meanings to the words "policy," "guideline," and "directive." A policy constitutes the broadest statement of an agency's attitude toward particular subjects." A good example of broad policy is the Department's Petite policy, the practice of avoiding prosecution of an offender in federal court for the same facts on which a state prosecution is pro- Criminal Law-Binding Effect of Prosecutor's Agreement to Dismiss Prosecution, 23 WAYNE L. REV (1977) (recent state court decisions expanding or limiting prosecutors' rights to plea bargain). 10. For example, the United States Attorneys' Manual reflects some of the enforcement decisions that are most clearly formulated. UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES ATTORNEYS' MANUAL [hereinafter cited as U.S. ATT'Y MAN.]. The nine-volume Manual is available under the disclosure requirements of the Freedom of Information Act from the Executive Office of United States Attorneys, United States Department of Justice, Washington, D.C , at S.10 per page. U.S. Arr'Y MAN (Aug. 31, 1976). See Freedom of Information Act, 3, 5 U.S.C. 552 (1976). The Manual indicates: This Manual provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigative prerogatives of the Department of Justice. A number of goals were pursued in the development of the United States Attorneys' Manual: (1) Fairness-Each case is different and must always be treated on its facts. General guidelines, however, will help assure evenhandedness, consistency, and equal treatment by different United States Attorneys' Offices in similar cases. (2) Consistency -Where a generally consistent Government position is appropriate, a comprehensive vehicle for dissemination of materials will be an aid in maintaining this consistent position in the courts. (3) Efficiency-Recurring questions can easily and quickly be disposed of by statements of general policy, thus avoiding the loss of time in dealing with problems on an ad hoc basis, or in attempting to ascertain policies. Frequently encountered questions of law can also be anticipated and answered utilizing the Department's collective experience. (4) Communication-The Manual will serve as a single repository where statements of general policy can be collected and organized as they are issued. (5) Changes in Materials-The consolidation... will help to promote changes in policy which have become obsolete over time, and will spotlight present general policies that are in need of scrutiny and change. 11. Much as the United States has a foreign policy, it has a litigative policy. Policies may be formal or informal and may be as broad or narrow as the agency wishes.

6 1978] PROSECUTORIAL POLICY The United States Attorneys' Manual pro- ceeding or has proceeded. 12 vides: No Federal case should be tried when there has been a state prosecution for substantially the same act or acts without a recommendation having been made to the Assistant Attorney General demonstrating compelling Federal interests for such prosecution. 13 When several offenses arise out of a single transaction, they should be alleged and tried together and should not be made the basis of multiple prosecutions. 14 The presence of general advisory language typifies policy provisions. Guidelines are more specific than policy. Generally, they will enumerate factors a prosecutor should consider when making a particular decision, or will illuminate the boundaries within which the prosecutor should act.' 5 A good illustration of guidelines concerns the handling of obscenity cases; colloquially known as the Redmond policy: 16 [T]he primary objective of prosecution in private correspondence cases should be to restrain the exploitation of obscene private correspondence for commercial gain... The principle thrust of prosecutions should be directed toward those who are the prime movers in such endeavors. It is the Department's view that generally no useful purpose is served by a felony conviction of individuals who have willingly ex- 12. The policy derives its name from Petite v. United States, 361 U.S. 529 (1962), but it existed prior to the case. Although the original departmental policy involved dual prosecution, Department of Justice Press Release, April 6, 1959, the Solicitor General in Petite applied it to closely related situations of multiple federal prosecutions that are not otherwise barred by the double jeopardy clause or by joinder and severance rules of procedure. 361 U.S. at 531. See Rinaldi v. United States, 98 S. Ct. 81 (1977) (per curiam) (citing Petite case as authority that the Petite policy can encompass successive federal prosecutions as well as duplicating federal/state prosecutions). 13. U.S. ATT'Y MAN (Jan. 10, 1977). The remainder of the provision directs an attorney to follow specific procedures. 14. Id (Jan. 10, 1977). 15. In the criminal justice field, guidelines have been popularized by the American Bar Association, the National Advisory Commission of Criminal Justice Standards and Goals, and most recently the National District Attorneys' Association. See sources cited at note 5 supra. 16. Redmond v. United States, 384 U.S. 264 (1966). This case illustrates an earlier version of the policy. Id. at 265.

7 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 27:310 changed private letters, although obscene. This is not to say that prosecution may never be instituted in such cases. Rather, prosecution should be the exception and confined to those cases involving repeated offenders or other circumstances which may fairly be characterized as aggravated... United States Attorneys should give careful consideration to all of the surrounding circumstances, such as the subject's prior record, particularly with respect to his involvement with obscene materials and sex related offenses, his employment, including his opportunity for close association with young people; and his educational level... The United States Attorney should determine initially whether a strong warning and declination of prosecution is adequate in the particular case. This disposition should suffice in the routine cases of consensual obscene private correspondence. In other cases, the United States Attorney should give serious consideration to exploring with defense counsel voluntary submission by the accused to psychiatric evaluation Directives are still more specific than guidelines, usually instructing one or more officials by title to act in a certain manner. Directives do not focus on particular cases and should not be confused with an individual instruction to handle a particular prosecution in one specific way; they deal with a class of cases or situations. In the course of discussing grand jury practices, the Department recently has directed the following: Notwithstanding the lack of a clear constitutional imperative, it is the internal policy of the Department to advise grand jury witnesses of the following matters: 1) the general subject matter of the grand jury's -inquiry... ; 2) that the witness may refuse any question if a truthful answer to the question would tend to incriminate him; 3) that anything that the witness does say may be used against him; and 4) that the grand jury will permit the witness the reasonable opportunity to step outside the grand jury room to consult with counsel if he desires. This notification will be contained on a printed form... which will be appended to all grand jury subpoenas.... Moreover, although... "targets" of the grand jury's investigation are entitled to no special warnings relative to their status as "potential defendant(s) in danger of indictment," we will continue the longstanding internal practice of the Department to advise witnesses who are known "targets" of the investigation... that their conduct is being investigated for possible violation of federal criminal law. This 17. U.S. ATT'y MAN (Jan. 17, 1977).

8 19781 PROSECUTORIAL POLICY supplemental "warning" will be administered on the record when the target witness is advised of the matters discussed in the preceeding [sic] paragraph. 18 Unlike policy and guidelines, directives are mandatory, not advisory. To the extent they are known to exist, directives always cover procedural aspects of criminal prosecution. 19 Rules can be either legislative or interpretative, 20 and the term will be used here according to its usual administrative law definition. Discretionary decisions affect the criminal justice system in the following chronological order: selective enforcement of certain crimes or against specific groups, use of investigatory techniques, the decision to charge, diversion of some individuals from the criminal process into rehabilitation programs, decisions to plea bargain or to dismiss, trial decisions, and posttrial decisions. The structuring of discretion may best be illustrated by examining each stage of decisionmaking. The first decision that the Department of Justice or a U.S. Attorney makes is to focus attention on certain types of persons or transactions and deliberately ignore allegations of other types of illegal activity. For example, the IRS gives special attention to attorneys, accountants, and drug traffickers for tax violations. 21 Similarly, the Department of Justice does not actively enforce sanctions against noncommercial consensual mailings of obscene material, 22 or against carrying penknives aboard cormercial aircraft. 23 The decision to enforce selectively usually is made in conjunction with another investigatory or regulatory agency. 24 Such a broad policy, followed at an early stage of prosecution, obviously influences the entire criminal justice system. 18. Id (Supp. Dec. 16, 1977). 19. No specific directive altogether forbidding prosecutions of certain crimes is publicly known. Cf. notes & accompanying text infra (selective enforcement of some crimes). 20. See notes & accompanying text infra. A major difference between a directive and a rule involves the enforcement structures associated with each. In general, the only formal enforcement mechanism attendant a directive is a disciplinary procedure brought against an employee for insubordination. Rules may be enforced by the agency or by courts. See K. DAVIS, ADMINISTRA- TiVE LAW TEXT (3d ed. 1972). 21. Oversight Hearings into the Operations of the IRS (Operation Tradewinds, Project Haven and the Narcotics Traffickers Tax Program) Before the Senate Comm. on Government Operations, 94th Cong., 1st Sess. 5-20, (1975). This selective enforcement policy is based on the theory that these groups have a greater propensity, ability, or opportunity for tax evasion. 22. U.S. ATT'Y MAN (Jan. 17, 1977) (Redmond policy). 23. Id (Jan. 17, 1977) (prosecution only of aggravated cases to avoid manifest injustice to some potential defendants). 24. See, e.g., UNITED STATES DEPARTMENT OF JUSTICE, CRIMINAL TAX MANUAL 2-4 (1973) [hereinafter cited as CRIM. TAX MAN.] (reference letters from IRS to Tax Division).

9 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 27:310 Prosecutors also frequently decide which investigatory techniques are acceptable or preferred. For example, recent public concern with various covert activities of the Federal Bureau of Investigation has led to development of extensive administrative guidelines to regulate investigation techniques. 25 Under an Executive Order, 2 6 the Department of Justice must follow certain preliminary procedures for interception of conversations by the intelligence community. Parallel instructions from the Attorney General to the heads of all agencies require approval of consensual recording of face-to-face conversations. 27 The policies that underlie investigatory guidelines vary from promoting administrative efficiency to protecting individuals' rights to privacy. 2 8 The third discretionary decision-the determination of whether to proceed with formal criminal charges-is the first that has direct impact on particular individuals. 2 9 A number of guidelines place the decision to charge in the hands of a centralized office. Prosecutions of cases involving criminal subversive activities, for example, must be expressly authorized by the Criminal Division of the Department of Justice or a higher authority. 30 Other exemplary guidelines require U.S. Attorneys to consult with the Criminal Division before seeking indictments under cer- 25. E.g., General Memorandum, Department of Justice Office of Policy and Planning (June 11, 1976) (FBI guidelines on domestic security investigations, reporting on civil disorders and demonstrations, and use of informants). 26. See, e.g., Exec. Order No. 11,905, 3 C.F.R. 90 (1977). This Order delineates broad policies and procedures for domestic and foreign security activities, counter-intelligence, and gathering of domestic intelligence information. 27. U.S. ATT'Y MAN (Supp. July 12, 1977) (directive requiring authorization to monitor conversations) (original policy guidance issued in 1972 memorandum). See notes & accompanying text infra (discussion of United States v. Caceres). 28. Compare, for example, the privacy considerations underlying wiretapping guidelines, see notes & accompanying text supra, with the efficiency considerations underlying the Tax Division, Criminal Section's guidelines on granting conferences to proposed defendants. Admonished not to discuss particular evidence with conferees except for the nature of the charges and some basic figures, Criminal Section attorneys may grant a conference "to permit proposed defendants to present any explanations and evidence which may be considered helpful to the Department in reaching a proper decision on prosecution." CRIM. TAX MAN., supra note 24, at The decision to charge and the choice of charges are subject initially to judicial review at the preliminary hearing or arraignment. See FED. R. CRIM. P. 5 (initial appearance before magistrate); FED. R. CRiM. P. 5.1 (preliminary examination); FED. R. CRIM. P. 10 (arraignment). In most instances this decision is highly deliberative. Even before arraignment, however, the individual may become subject to incarceration, suspension of licenses or employment, and social stigmatization. See, e.g., 7 U.S.C. 53 (1976) (revocation of cotton grading licenses); 18 U.S.C. 843 (1976) (revocation of licenses for users, dealers, and manufacturers of explosives); 18 U.S.C. 923 (1976) (revocation of firearms dealer licenses). 30. U.S. ATT'Y MAN (Jan. 10, 1977) (listing certain statutes under which prosecutions are made). Additionally, all criminal tax fraud or evasion cases are instituted by or at the direction of the Criminal Section of the Tax Division. CRIM. TAX MAN., supra note 24, at 1 (quoting United States Attorney's Manual, tit. 4, at 3-4 (1971 ed.)).

10 19781 PROSECUTORIAL POLICY tain laws, 3 ' to channel enforcement efforts toward certain types of offenses, 32 to avoid dual prosecutions in federal and state courts, and multiple prosecutions in federal courts, of offenses arising out of substantially the same acts, 3 3 and to consider certain factors when selecting among two or more applicable charging statutes. 34 Relatively little review is made of decisions to decline prosecution. 35 Various special practice and investigation policies coincide with the charging decision. The U.S. Attorney may still be investigating a potential violation when he takes his case before a grand jury. Because the grand jury then serves both an investigative and a quasi-judicial function, establishing policy in this context involves balancing the need to conduct a thorough investigation against the need to accord witnesses their full rights against self-incrimination. 36 Decisions to compel testimony through grants of immunity at this point of the process are regarded as centralized no-charge decisions, subject to reversal only after careful review. 37 Directives on choosing immunity provisions 38 and guidelines for choosing informal rather than statutory procedures 39 reflect the sen- 31. U.S. ATT'Y MAN (Jan. 10, 1977). 32. E.g., id ,.630 (Jan. 17, 1977) (assigning enforcement priority to commercial operations under obscenity statutes); cf. id (a) (Jan. 10, 1977) (limiting subsequent perjury prosecutions arising from trials resulting in acquittals); id (x) (Jan. 10, 1977) (limiting prosecution of Mann Act "personal escapade" cases). 33. Id (Jan. 10, 1977) (general dual prosecution policy); id (Jan. 17, 1977) (dual prosecution of firearms offenses); CRIM. TAX MAN., supra note 24, at 8-9. See notes & accompanying text supra. 34. This type of guideline generally is used as a means of controlling unnecessary litigation costs and delays. For example, of two statutes providing penalties for false statements and perjury, the Manual states a policy of prosecuting under that statute whose division of evidentiary burdens favors the government. U.S. ATT'Y MAN ,.265 (Jan. 17, 1977). 35. Congress has subjected discretion to decline prosecution to the scrutiny of the Attorney General in cases involving investigations for violations of bankruptcy laws that are referred by referees, receivers, or trustees in bankruptcy. 18 U.S.C. 3057(b) (1976). Congress also has guaranteed legislative review of declinations in cases involving interstate travel to incite riots. 18 U.S.C. 2101(d) (1976). The United States Attorneys' Manual cites only these two provisions as the law limiting discretion to decline. U.S. ATT'Y MAN (Jan. 10, 1977). 36. See, e.g., U.S. ATr'y MAN (Supp. Dec. 16, 1977) (government should give warning to "targets" appearing before grand jury); note 18 & accompanying text supra U.S.C (1976) requires authorization from the Attorney General or his designee before a U.S. Attorney may request an order to compel testimony subject to use immunity. See U.S. ATT'Y MAN (Jan. 17, 1977); cf. id (3) (Jan. 10, 1977) (consent required to accept plea of nolo contendere). 38. U.S. ATT'Y MAN (Jan. 10, 1977) (Department will rely exclusively on 18 U.S.C (1976) instead of other statutory provisions). 39. Id (Jan. 10, 1977) (promise by prosecuting attorney not to prosecute will bind prosecutors in other districts) (citing United States v. Carter, 454 F.2d 426 (4th Cir. 1972)).

11 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 27:310 sitivity of the process and the desire for central control of decisionmaking. After charging, or as an alternative to charging, a U.S. Attorney may choose to divert a defendant from the criminal process by conditioning the dismissal on rehabilitation. 40 Departmental guidelines provide criteria detailing the type of defendant eligible for diversion. 41 These guidelines often are supplemented by U.S. Attorneys to reflect local factual and political exigencies, and caseloads. 42 The opportunity to plea bargain represents another point at which discretion enters the prosecutorial process. Department of Justice directives channel this discretion 43 although individual U.S. Attorneys may limit plea negotiations and agreements further as they deem appropriate. 44 Decisions to dismiss an indictment or an information border closely on initial decisions regarding whether to prosecute or to decline. In general, decisions to dismiss are within the U.S. Attorney's discretion, 45 although in some instances they require notice to Congress 46 or consent by the defendant. 47 One illustration of the parallel between charging and dis- 40. Id (Jan. 10, 1977). In many cases diversion frees the defendant from any further contact with the criminal justice system. Id (if diversion is successful charges will be dismissed and no permanent record will be maintained). See note 154 infra. 41. Defendants who are addicts or who have had two or more prior felony convictions or who are accused of violating the public trust or of committing an offense related to national security or foreign affairs, or who should be diverted to the state are not eligible for diversion. Id (Mar. 17, 1977). 42. See, e.g., U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, SCREENING AND PAPERING MANUAL 41 (1978). Despite the complex legal problems attendant the termination of diversion, see note 154 infra, only general policy is provided for recharging the diverted defendant. U.S. ATT'y MAN (Jan. 10, 1977). 43. For example, a directive prohibits attorneys from dismissing charges against corporate officers in return for the corporation's plea of guilty. U.S. ATT'y MAN (Jan. 10, 1977). Additional directives require approval by the appropriate section of the Criminal Division or by higher authority before attorneys may make plea agreements that dismiss counts from an indictment. Id (Jan. 10, 1977). 44. Although the United States Attorneys' Manual discusses precedent, conflicts between departmental and local policies in practice tend to be resolved on an ad hoc basis. Typical of local decisions are requiring pleas to the lead or top count, reducing a charge by only one degree, and dismissal only after testimony as a prosecution witness. 45. U.S. ATT'y MAN (Jan. 10, 1977) (unless otherwise required, U.S. Attorneys may move for dismissal without authorization, although they should seek advice from agencies who referred cases). 46. Selective Service cases cannot be dismissed without notification to Congress. 50 U.S.C. app. 462(c) (1970). 47. For example, the government may not move for dismissal of criminal charges after commencement of trial-or perhaps just after incurrence of jeopardy-without the defendant's consent. FED. R. CRIM. P. 48(a). See United States v. Chase, 372 F.2d 453 (4th Cir.), cert. denied, 387 U.S. 907, 913 (1967).

12 1978] PROSECUTORIAL POLICY missing is a Department directive forbidding the dismissal of indictments procured by Criminal Division attorneys without the consent of the Division. 48 Such a parallel is not always present, however, between a dismissal and a declination. The Organized Crime and Racketeering Section of the Criminal Division controls the institution and progress of cases brought under the Racketeer Influenced and Corrupt Organizations Statute 49 including the presentation of evidence to grand juries, investigations, 5 " dismissals, 5 ' and, to an extent, the award of damages to crime victims. 52 It maintains no similar controls on declinations, despite the lesser degree of external control they receive. 53 The next policy decisions, those relating directly to trials themselves, are the most difficult to formulate. Although various U.S. Attorneys certainly have developed informal trial policies based on local law and practices of the local bench, the Department has developed no centralized policy except in particularly complex trial situations. 54 Policy guidelines do cover posttrial decisionmaking. U.S. Attorneys must seek approval of the Criminal Division to issue a superceding indictment containing more counts than a previously dismissed indictment. 5 5 Presently, the only sentencing policy is one that prohibits a request for the death penalty unless approved by the Attorney General. 56 Because the Solicitor General must make decisions regarding certain appeals " the U.S. Attorney's position becomes secondary. 58 In fact, differences of opinion arising after control of a case has shifted from the U.S. Attorneys to the Department of Justice have led to reversals by consent for policy reasons U.S. ATT'Y MAN (1) (Jan. 10, 1977). 49. Organized Crime Control Act of 1970, ch. 10, 18 U.S.C (1976). 50. U.S. ATT'y MAN (Jan. 17, 1977). 51. Id., read in conjunction with id (s), 146 (Jan. 10, 1977) U.S.C. 1964(c) (1976), discussed in U.S. ATT'y MAN (Jan. 17, 1977). See also FED. R. EvID. 803(22) (exception to hearsay rule to permit introduction of prior felony conviction to prove any fact essential to the judgment). 53. U.S. ATT'Y MAN (Jan. 10, 1977). See note 35 supra. 54. The Department has formulated guidelines for criminal tax fraud or evasion trials, in which a coherent policy often is necessary to organize consistent theories of proof. CRIM. TAx MAN., supra note 24, at U.S. ATT'y MAN (Jan. 10, 1977). 56. Id (Jan. 10, 1977) U.S.C. 518(a) (1970) (appeals to Supreme Court). 58. U.S. ATT'Y MAN (Jan. 10, 1977) (U.S. Attorneys must seek prior authorization for all appeals from Solicitor General through Appellate Section of the Criminal Division). 59. E.g., Ackerson v. United States, 419 U.S (1975)(confession of error because Department violated Petite policy); Redmond v. United States, 384 U.S. 264 (1966) (confession of error because Department violated policy against nonprosecution of consensual, noncommercial mailing of obscene literature).

13 THE AMERICAN UNIVERSITY LAW REVIEW (Vol. 27:310 III. THE FEASIBILITY OF AN ADMINISTRATIVE LAW MODEL FOR STRUCTURING PROSECUTORIAL DISCRETION Although the Department of Justice, through the United States Attorneys' Manual, has attempted to direct prosecutors' discretion to some extent, the breadth and scope of their discretion remains. 60 Courts traditionally are reluctant to review prosecutors' discretionary acts. 61 Some commentators, concerned about relatively unbridled discretion, recommend that the principles of administrative law be applied to prosecutorial decisionmaking. 62 The administrative law model, however, is fraught with problems. A. Administrative Law Principles Applied to Criminal Law Enforcement Congress enacted the APA to make uniform the procedures and practices of executive and independent agencies. 63 Because the statutory definition of "agency" 64 is all inclusive but for enumerated exceptions, 65 the APA "apparently confers agency status on any administrative unit with substantial independent authority in the exercise of specific functions." 66 Clearly the Department of Justice is an agency within the meaning of the APA. 67 Further, in view of the discretion that U.S. 60. DISCRETIONARY JUSTICE, supra note 3, at (1969); Bubany & Skillem, supra note 2, at See note 1 supra. 62. See note 3 supra. In fact, dicta in a recent Supreme Court case seems to add fuel to this proposal. See Imbler v. Pachtman, 424 U.S. 409, 431 & n.33 (1976) ( 1983 civil action for damages) (although prosecutor has absolute immunity as an advocate, there exists a point in his preparatory activities when he stops acting as prosecutor and acts only as an administrator subject to review). This decision was not a full review of a prosecutor's actions as an administrator. See notes & accompanying text infra. 63. S. REP. No. 752, 79th Cong., 1st Sess. 1 (1945). 64. " ' [A]gency' means each authority of the Government of the United States, whether or not it is within or subject to review by another agency." 5 U.S.C. 551(1) (1976). 65. See 5 U.S.C. 551(l)(A)-(H) (1976). The Act specifically excludes the Congress and the federal courts. Id. 551(I)(A), (B). Interestingly, however, the statute does not exclude the President. Whether Congress intended or the Constitution would permit the APA to apply directly to the President remains unresolved. See Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971). 66. Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971). Cf. Lassiter v. Guy F. Atkinson Co., 176 F.2d 984 (9th Cir. 1949) (test for APA agency is whether agency has authority to act with sanction of government). Although the primary purpose of the APA is to regulate agencies involved in rlemaking and adjudication, government organizations that perform neither function nevertheless may be agencies within the meaning of the APA. Soucie v. David, 448 F.2d 1067, 1073 & n.15 (D.C. Cir. 1971). 67. The Department of Justice is statutorily defined as an executive department. 5 U.S.C. 101 (1976); 28 U.S.C. 501(1970). Executive departments in turn are statutorily defined as agencies within the meaning of the APA. 5 U.S.C. 105 (1976). Although U.S. Attorneys may be appointed

14 1978] PROSECUTORIAL POLICY Attorneys exercise under their independent authority, 68 they may be considered to comprise a series of agencies within the Department of Justice. 69 Since the Department of Justice is an agency, the APA's procedures for legislative rulemaking and adjudicatory hearings could be applied to it. Not all APA procedures are directly applicable to the Department, however. First, the APA prescribes notice and comment procedures for promulgating legislative rules,70 which bear the full force and effect of law. 7 1 Before an agency may promulgate legislative rules, however, or removed by the President, they generally are subject to direction by the Attorney General and the Department of Justice. See 28 U.S.C (1970) U.S.C. 547 (1970). 69. A contrary view-that prosecutors are not within the APA's definition of agency-is based on the fact that the position of District Attorney, later U.S. Attorney, developed before the APA. Bubany and Skillem, supra note 2, at 477 n.20. While it is true that the U.S. Attorney has a broad historical base, there was no discussion of the prosecutor in the legislative history of the APA to refute the operation of clear statutory language. Congress gave lengthy consideration to the meaning of "agency," but their primary concerns were foreign and military affairs, not criminal prosecutions. H.R. REP. No. 1980, 79th Cong., 2d Sess (1946). An argument could be made, of course, that U.S. Attorneys are mere officers of the court, and thus fall under the federal court exception. See 5 U.S.C. 551(l)(B) (1976). Such an argument would contradict a long series of cases that have denied judicial review of prosecutorial discretion based upon a theory of separation of powers. See, e.g., cases cited note I supra. But see United States v. Jacobs, 547 F.2d 772 (2d Cir. 1976), cert. granted, 431 U.S. 937 (1977); notes & accompanying text infra U.S.C. 553 (1976). At least 30 days before the formal rulemaking proceeding, the agency must publish in the Federal Register a notice of proposed rulemaking and a request for comments from all interested persons. Id. 553(b). At an announced time and place an agency must accept written material in response to the notice, and may allow oral presentations. Id. 553(c). Some agency enabling acts require a full oral hearing at this point in the process. See, e.g., Federal Food, Drug, and Cosmetic Act, 701(e)(2)-(3), 21 U.S.C. 371(e)(2)-(3) (1970) (oral hearing required where responses received to notice of proposed rulemaking). Cf. United States v. Storer Broadcasting Co., 351 U.S. 192, 205 (1956) (statutory requirement of oral hearing may be obviated where applicant does not state a valid basis for hearing). After considering the material presented, the agency may make a formal promulgation and must publish its rules or regulations in the Federal Register. Thirty days after publication, if no other period is prescribed, the rule will take effect under the sanctions of the enabling act. Id. 553(d). It will remain in effect until some further action, either formal agency action or congressional alteration of the enabling act, one-house veto, or a judicial declaration that the rule or regulation exceeds the agency's delegated authority. See, e.g., id. 553(e). 71. K. DAVIS, ADMINISTRATIVE LAW TEXT 126 (3d ed. 1972). Rules must be made pursuant to the powers granted to the agency by the legislature, and to be valid they must be "constitutional within the granted power." Id. When these requirements are met, the courts will grant the full force and effect of the law to agency rules. See, e.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (upholding discretionary determination by Board of Immigration Appeals because regulations promulgated under 19(c) of the Immigration Act of 1917 granted Attorney General's complete discretion to the Board); Willapoint Oysters, Inc. v. Ewing, 174 F.2d 676 (9th Cir.), cert. denied, 338 U.S. 860 (1949); Oil Shale Corp. v. Morton, 370 F. Supp. 108 (D. Colo. 1973) (on remand from the Supreme Court, statements made by the Interior Department were found to have force and effect of law whether statement was characterized as "legislative" or "interpretative").

15 THE AMERICAN UNIVERSITY LAW REVIEW (Vol. 27:310 Congress must expressly or implicitly delegate its own legislative power.72 Since Congress has not delegated rulemaking power to the Department of Justice, 7 3 the APA procedure for legislative rulemaking is not now available to structure prosecutorial discretion. Agencies may develop interpretative rules74 without possessing specifically delegated rulemaking power or adhering to APA procedures, because they have inherent discretion to decide how to carry out generally delegated powers and duties. 75 All statutes are subject to interpretation by the agency designed to enforce or administer them. Depending upon the complexity of the statute and the agency's expertise with respect to the particular rule, reviewing courts 7 6 will give great weight to the agency's interpretation. 7 7 Similarly, a longstanding interpretative ruling that 72. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940) ("delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility"); K. DAVIS, ADMINISTRATIVE LAW TEXT 145 (3d ed. 1972). When making rules, an agency must adhere to the express or implied intent of the authorizing statute. Id. Congress often does delegate rulemaking power because an agency may have more expertise to apply in developing details of administration. See Fahey v. Mallonee, 332 U.S. 245 (1947) (delegation to Federal Home Loan Bank Board to prescribe by regulation term and conditions upon which conservator could be appointed for federal savings and loan association was constitutional); K. DAVIS, AD- MINISTRATIVE LAW TEXT (3d ed. 1972). 73. The duties and authority of the Attorney General, the U.S. Attorneys, and their assistants are broad, but specific. Any litigation involving the United States, an agency, or an officer thereof is reserved to the Department of Justice. 28 U.S.C. 516 (1970). Any officer of the Department of Justice can be sent to any state or district within the United States to attend to the interests of the United States. Id. 517 (1970). See also id , 515 (authority for legal proceedings); id. 519 (supervision of litigation); id. 521 (publication of opinions); id Every U.S. Attorney has a broad list of duties to perform within his district. See id The distinction between legislative and interpretative rules is difficult to draw precisely. Davis explained: Whenever a legislative body has delegated power to an agency to make rules having force of law... the rules the agency makes pursuant lo the granted power have the same force as a statute if they are valid... At the opposite extreme, where no power has been delegated to the agency to make law through rules, the agency's public statements of what it will do in enforcing or in adjudicating may be deemed "interpretative rules." K. DAVIS, ADMINISTRATIVE LAW TEXT (3d ed. 1972). 75. Id.; DISCRETIONARY JUSTICE, supra note 3, 68-70, Judicial review of an agency rule will not occur until the parties satisfy the doctrines that a dispute be ripe for judicial decision, see, e.g., Abbott Labs. v. Gardner, 387 U.S. 136, (1967) (ripeness doctrine based on policy "to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties"), and that all prescribed administrative remedies be exhausted. See, e.g., Myers v. Bethlehem Shipbldg. Corp., 303 U.S. 41, (1938) (longstanding policy that "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed remedy has been exhausted"). 77. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (involving determination of whether waiting time was working time under the act) (while rulings, interpretations, and opinions of adminis-

16 1978] PROSECUTORIAL POLICY has withstood a change in the authorizing statute through reenactment may gain almost the status of a legislative rule in the eyes of the court. 78 Theoretically, the administrative law model for structuring prosecutorial discretion would capitalize on a court's deference to the Department of Justice's interpretation by rule of Congress' intentions regarding the meaning and proper level of enforcement of the criminal law. During the time that prosecutors have been formulating policy, 79 the argument may go, Congress has tampered with substantive criminal law 8 0 and rules of court procedure, 81 but has not spoken regarding enforcement matters. Thus, although it has not specifically approved any single prosecutorial policy, courts can infer Congress' intention to permit the Department of Justice sufficient authority to develop and use prosecutorial policy to bridge the gap between appropriated resources and the amount of resources necessary to enforce the criminal law fully. As will be seen, courts are unlikely to give the Department's interpretations such great weight. 8" The Second APA procedure, which governs agency adjudication, 83 arises when an administrative proceeding is required by statute to be on the record 8 " unless the issues are subject to trial de novo by a court. 8 5 trator are not controlling upon courts, they do constitute "body of experience and informed judgment to which courts and litigants may properly resort for guidance"); K. DAVIS, ADMINISTRATIVE LAW TEXT 129 (3d ed. 1972). 78. K. DAVIS, ADMINISTRATIVE LAW TEXT (3d ed. 1972). 79. See notes & accompanying text supra. 80. See, e.g., Act for the Protection of Foreign Officials and Official Guests of the United States, Pub. L. No , 201, 86 Stat (1972) (amending 18 U.S.C (1970)) (kidnapping); Act of July 16, 1952, Pub. L. No , 18, 66 Stat. 722 (amending 18 U.S.C. 1343) (mail fraud); Act of Oct. 3, 1964, Pub. L. No , 1, 78 Stat. 995 (amending 18 U.S.C. 1621) (perjury). Congress has been working on a major bill to codify the many scattered criminal statutes. Criminal Code Reform Act of 1977, S.1437, 95th Cong., Ist Sess., 123 CONG. REC. S6,831 (daily ed. May 2, 1977). 81. See, e.g., Act of Dec. 12, 1975, Pub. L. No , 3, 89 Stat. 806 (amending 18 U.S.C (1970)) (authentication of foreign documents); Federal Rules of Criminal Procedure Amendments Act of 1975, Pub. L. No , 3(1)-(11), 3(13)-(35), 89 Stat (amending various rules of FED. R. CRIM. P.). 82. See notes & accompanying text infra U.S.C. 554 (1976). In contrast to legislative and interpretative rulemaking, individual adjudicatory decisions apply retrospectively and affect only a single interested party. K. DAVIS, ADMINISTRATIVE LAW TEXT (3d ed. 1972) U.S.C. 553(c)(1976); see United States v. Florida E. Coast Ry. Co., 410 U.S. 224, (1973) (in action challenging rulemaking proceeding by Interstate Commerce Act, Court held under 5 U.S.C. 553(c) that statutory use of words "on the record" trigger strict hearing requirements of APA, 5 U.S.C ) U.S.C. 554(a)(1) (1976). Other exceptions include matters relating to the selection or tenure of employees. See id. 554(a)(2)-(6).

17 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 27:310 By APA terms, these adjudicatory procedures do not apply to prosecutors' decisions because such decisions are not required by statute to be "determined on the record after opportunity for agency hearing." 86 In addition, a prosecutor's decision to proceed with criminal charges will automatically be reviewed de novo by a court. In the case of prosecutorial discretion, however, the de novo trial exception is not broad enough to provide the safeguards intended in the APA because decisions not to prosecute also affect defendants' rights, 8 7 but are not required by statute to be on the record and do not receive de novo judicial review. 8 8 Davis has recommended therefore that prosecutors go beyond APA requirements and apply adjudicatory procedures to discretionary decisions in a manner similar to the National Labor Relations Board's procedure for handling unfair labor practice complaints from private parties. 8 9 The NLRB has established an appeals process 90 that allows a disappointed charging party to challenge the general counsel's decision not to issue a complaint. 9 ' At every stage of the decisionmaking process, the NLRB makes available to parties reasons for a declination. 92 Although Department of Justice advisement procedures for certain white collar crime and complex litigation cases are not unlike the NLRB procedure in form, 93 they are more discretionary in substance. This discretion is necessary because public knowledge of approval to charge by special grand jury or by information might give a defendant earlier access to details of the government's case. The discretion in the charging proc U.S.C. 554(a) (1976). Statutes merely describe criminal behavior, leaving prosecutors to consider prosecution and to seek indictments without notice to the defendant. Cf. id. 554(c)(1) (agency must give interested parties notice and opportunity to present arguments). 87. Decisions to prosecute are not the only decisions that have an immediate adverse impact on an individual. A decision to divert a defendant, for example, may condition his diversion on nominal rehabilitation. See notes & accompanying text supra; note 154 infra. 88. Davis speculates that "[perhaps nine-tenths of the abuse of the prosecuting power involve failure to prosecute, and courts normally have no occasion to review such cases." DISCRETIONARY JUSTICE, supra note 3, at DISCRETIONARY JUSTICE, supra note 3, at See notes & accompanying text supra. 90. See 29 C.F.R (1977). 91. Id (1977). If the complainant challenges the prosecutor's decision not to issue a complaint, the entire file in the case is sent to Washington, D.C., where the case is fully reviewed by the general counsel with the assistance of his staff. Id. See also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, (1975) (explaining procedure) (intra-agency memoranda exempt from disclosure required by FOIA) C.F.R (1977). 93. U.S. ATT'Y MAN to.133 (requiring express authorization before instituting cases under enumerated statutes, including those covering espionage, trading with the enemy, commodities futures trading, federal elections, mail fraud).

18 PROSECUTORIAL POLICY ess needs controls because of its impact on defendants, 9 4 but external controls such as those provided by the APA would inappropriately subject prosecutorial decisionmaking to public scrutiny. Davis and others have recommended that prosecutors adhere to the APA or similar administrative procedures to develop and articulate policies regarding prosecutorial discretion. 95 Of the three major administrative law procedures- legislative rulemaking, interpretative rulemaking, and adjudication-only interpretative rulemaking is practically available for use in controlling criminal prosecutorial discretion. B. Federal Court Jurisdiction to Review Agency Action If the Department of Justice, as an agency, were to follow Davis' suggestion and promulgate interpretative rules, putative defendants or charging agencies might desire to challenge those rules in court. 96 The ability of these potential parties to obtain judicial review of administrative action would determine in part the viability of the proposal to apply administrative law to prosecutorial discretion. Jurisdiction is a prerequisite to judicial review, and the well-founded rule is that federal courts have only the jurisdiction that Congress has 94. There is some control already. If a U.S. Attorney decides not to prosecute a case that has been referred to him by an agency, he should make a record of the decision and the reasons for declining. U.S. ATT'Y MAN (Jan. 17, 1977). 95. DISCRETIONARY JUSTICE, supra note 3, at 80-84, 220. See also note 2 supra. 96. Theoretically, parties could challenge the substance of the rule as unconstitutional or ultra vires, or the process by which it was promulgated as being contrary to notice and comment procedures. See, e.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, (1969) (dictum) (rule promulgated without following the rulemaking requirements of the APA was invalid); Fook Hong Mak v. Immigration and Naturalization Serv., 435 F.2d 728 (2d Cir. 1970) (alien argued that a regulation forbidding an adjustment of his immigration status was invalid because the statute authorized the Attorney General to use discretion in making adjustments); NLRB v. Pittsburgh Plate Glass Co., 270 F.2d 167 (4th Cir. 1959) (Board may not base unit determinations on past rulings where the statute calls for a case-by-case analysis). Cf. United States v. Aarons, 310 F.2d 341 (2d Cir. 1962) (even though substantive rules were required to be published in the Federal Register, failure to publish did not immunize defendants, who had actual knowledge of order, for prosecution for violating it). Unless Congress were to delegate its legislative power to make rules, however, the Department's rules could be only interpretative, and as such would not necessarily be subject to APA notice and comment procedures. 5 U.S.C. 553(b)(A) (1976); K. DAVIS, ADMINISTRATIVE LAW TEXT 126 (3d ed. 1972). Alternatively, challenging parties may wish to raise procedural objections on the grounds that once the Department voluntarily followed notice and comment procedures it was obliged to adhere to them throughout the promulgation of that particular rule. They might also want to object on the substantive ground that an agency must follow its own regulations once promulgated. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); notes & accompanying text infra.

19 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 27:310 granted. 9 7 Section 10 of the APA states that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof," 98 and continues, "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 99 Until recently the majority of courts held that section 10 created an independent basis for federal jurisdiction 100 to review agency action, although the statutory language created significant conflict among the circuits. 10 ' The Supreme Court ended the inter-circuit controversy in Califano v. Sanders when it held that the APA did not contain an independent grant of subject matter jurisdiction.' Although the Court recognized that it previously had assumed such jurisdiction to exist, 10 3 it stated that an intervening act of Congress 104 undercut the rationale of any such assumption.' 05 The intervening act eliminated the jurisdictional amount in all 97. U.S. CONST. art. III; Ex parte McCardle, 74 U.S. (7 Wall.) 507 (1868). Marbury v. Madison, 5 U.S. (I Cranch) 137 (1803). 98. APA, 10(a), 5 U.S.C. 702 (1976). 99. Id. 10(c), 5 U.S.C. 704 (1976) See Califano v. Sanders, 430 U.S. 99, 104 n.4 (1977). The Court indicated that the First, Fourth, Fifth, Seventh, Ninth, and District of Columbia Circuits considered 10 to be an independent grant of subject matter jurisdiction. Id. (citing Sanders v. Weinberger, 522 F.2d 1167 (7th Cir. 1975); Ortego v. Weinberger, 516 F.2d 1005 (5th Cir. 1975); Pickus v. United States Bd. of Parole, 507 F.2d 1107 (D.C. Cir. 1974); Bradley v. Weinberger, 483 F.2d 410 (1st Cir. 1973); Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970); Brennan v. Udall, 379 F.2d 803 (10th Cir. 1967); Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961)). See also Industrial Broker-Dealer's Trade Ass'n v. SEC, 442 F.2d 132 (D.C. Cir. 1971); L. JAFFE, JUDICIAL CONTROL OF ADMINISTRA- TIVE ACTION (abr. student ed. 1965) (section 10 is an independent grant of subject matter jurisdiction). The Second Circuit was undecided. South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976) The Third Circuit has reasoned, for example, that the APA is clearly remedial in nature, not jurisdictional, and that nothing in the Act serves to extend the jurisdiction of the federal courts to cases not within their competence. Zimmerman v. United States, 422 F.2d 326, 330 (3d Cir. 1970) (action to review determination made by Commissioner of Patents concerning government employee). See also Bramblett v. Desobry, 490 F.2d 405 (6th Cir. 1974); Twin Cities Chippewa Tribal Council v. Minnesota, 370 F.2d 529 (8th Cir. 1967) U.S. 99, 105 (1977) Id. The Court had assumed "with little discussion" that the APA embodies an independent grant of subject matter jurisdiction in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (Court found no evidence that Congress intended to restrict access to judicial review of Department of Transportation rulings); Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967) (Federal Food, Drug, and Cosmetic Act does not forbid pre-enforcement review of regulations promulgated under that Act); Rusk v. Cori, 369 U.S. 367, 372 (1962) (appellee was not confined to the procedures prescribed by 360(b), and (c) of the Immigration and Nationality Act, but also could pursue a remedy under the APA and Declaratory Judgment Act). 430 U.S. at Act of Oct. 21, 1976, Pub. L. No , 90 Stat (amending 28 U.S.C (a) (1970)) U.S. at 105.

20 PROSECUTORIAL POLUCY cases brought under the federal question jurisdictional statute The Court inferred by negative implication that Congress had never intended the APA itself to vest such jurisdiction As a result of Sanders, even if the Department of Justice were to promulgate interpretative rules controlling prosecutorial discretion, the federal judiciary could review its actions as an administrative agency only in a mandamus proceeding or if a federal question were presented C. Limitations on Reviewability Even if plaintiffs had been able to satisfy APA jurisdictional requirements before Sanders, their ability to obtain judicial review of interpretative rules would have been independently barred by the APA reviewability provision. If they obtained federal question jurisdiction, either before Sanders or after, common law concepts of reviewability also would bar judicial review APA nonreviewability Section 10 of the APA 10o provides that judicial review is unavailable either when Congress precludes it by statute or when "agency action is committed to agency discretion by law." I' Congress has never precluded judicial review of the criminal prosecutor by statute. To the contrary, it has required or permitted judicial review of many actions taken by prosecutors. " U.S.C. 1331(a) (1970 & Supp. V 1975) (conferring jurisdiction to review actions brought against the United States or its agencies, officers, or employees in their official capacity) U.S. at 105. Three considerations counsel a cautious view of the holding. First, as the Court admitted, it reversed its prior assumption. Second, the Court's opinion is at odds with prior circuit court opinions, which reached their decisions independently. Third, given the Court's reliance on statutory construction and legislative history to hold that the APA is nonjurisdictional, it is possible that Congress may reverse the Court's holding U.S.C (1970 & Supp. V 1975) (federal question); id (mandamus) This discussion assumes that plaintiffs also have met traditional standing requirements. See, eg., Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29 (3d Cir. 1976) (plaintiffs who owned property surrounding proposed dam had standing to sue under 10 of APA because economic interests constituted actual or threatened injury-in-fact). See generally United States v. Richardson, 418 U.S. 166 (1974) (a direct injury, and not merely a general interest common to all members of the public, is required for standing); Sierra Club v. Morton, 405 U.S. 727 (1972) (noneconomic injury may be sufficient to show standing); Baker v. Carr, 369 U.S. 186 (1962) (plaintiffs must allege a "personal stake" in the outcome to assure concrete adverseness) The discussion of reviewability under the APA is necessary even after Sanders in light of its potentially questionable permanency. See note 107 supra. II. 5 U.S.C. 701(a) (1976). In light of Sanders, the clauses must be interpreted as a further limitation on the scope of judicial review See, e.g., 18 U.S.C. 1968(h) (1976) (recipient of RICO civil investigative demand may seek review); id (procedure for interception of wire or oral communications).

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