give clear and convincing evidence of an intent to withhold it"); cf. Moog Industries, Inc. v. FTC, 355 U. S. 411, 414 (1958) (Federal Trade Commission decisions to prosecute are reviewable and can be overturned when "patent abuse of discretion" demonstrated).[1] Rather than confront Abbott Laboratories, perhaps the seminal case on judicial review under the APA, the Court chooses simply to ignore it."[2] Instead, to support its new-found "presumption of unreviewability," the Court resorts to completely undefined and unsubstantiated references to "tradition," see ante, at 831, and to citation of four cases. See United States v. Batchelder, 442 U. S. 114 (1979); United States v. Nixon, 418 U. S. 683 (1974); Vaca v. Sipes, 386 U. S. 171 (1967); Confiscation Cases, 7 Wall. 454 (1869).[3] Because the Court's "tradition" rationale, which flies in the face of Abbott Laboratories, stands as a flat, unsupported ipse dixit, these four cases form the only doctrinal foundation for the majority's presumption of unreviewability.
- ↑ The Senate Committee Report accompanying the APA stated: "The mere filing of a petition does not require an agency to grant it, or to hold a hearing, or engage in any other public rule making proceedings. The refusal of an agency to grant the petition or to hold rule making proceedings, therefore, would not per se be subject to judicial reversal." S. Doc. No. 248, 79th Cong., 2d Sess., 201 (1946). As Judge McGowan has observed, "this language implies that judicial review would sometimes be available in the circumstances mentioned" in the Report. Natural Resources Defense Council, Inc. v. SEC, 196 U. S. App. D. C. 124, 136, n. 14, 606 F. 2d 1031, 1043, n. 14 (1979).
- ↑ The Court did not ignore Abbott Laboratories in Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444, 454, 462–463 (1979), a denial of enforcement case that required "clear and convincing evidence" of congressional intent to preclude review of the failure to investigate a complaint.
- ↑ It is ironic that Vaca v. Sipes and the Confiscation Cases were cited by the Government in its brief in Dunlop when it unsuccessfully pressed the very proposition accepted today: that agency enforcement decisions are presumptively unreviewable. See Brief for Petitioner in Dunlop v. Bachowski, 0. T. 1974, No. 74–466, pp. 25–31.
