Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.”

This month I highlight a fascinating loophole in APA § 701(a)(2)’s preclusion of judicial review for action “committed to agency discretion by law.” In practice, Article III courts recognize two types of actions “committed to agency discretion by law.” The first is akin to the common law and pertains to scenarios where the court believes the administrative action is “beyond the range of judicial review.” Webster v. Doe, 486 U.S. 592, 608-09 (Scalia, J., dissenting). “Political questions” are the classic example of this variety of § 701(a)(2) preclusion. The second type is based on an inference regarding congressional intent. That is, where the court can discern no “law to apply,” it refrains from review. Heckler v. Chaney, 470 U.S. 821, 826 (1985).

The Ninth Circuit’s recent decision in Idrees v. Barr implicates the latter form of § 701(a)(2) preclusion.  Pursuant to regulation, the Board of Immigration Appeals may “in its discretion” certify for appeal “any case” within its jurisdiction. See C.F.R. § 1003.1(c). This provision, in practice, allows the BIA to hear appeals that are otherwise barred by procedural defects. In Idrees, the petitioner alleged that ineffective assistance of counsel was to blame for procedural errors in his administrative proceeding, and, for this reason, he sought judicial review of the BIA’s refusal to certify appeal of his removal order. In its original order, the three-judge panel affirmed the agency, reasoning that “we lack jurisdiction to review that decision” under APA § 701(a)(2), because “[t]he regulation contains no standard for how the agency should exercise its discretion in determining whether to certify a claim for review.”

On 30^th April, however, the panel amended its decision in Idrees v. Barr, by adding a single footnote that stipulates the following qualification:

We do not hold that judicial review of the BIA’s refusal to certify a case is never appropriate. In other contexts, we have held that, even where a regulation commits a matter to agency discretion, the court may review the decision if there is “law to apply” in doing so.

To my eyes, this amendment represents a paradox. If, under APA § 701(a)(2), judicial review is unavailable because the legal text contains “no law to apply,” then where could a court find “law to apply”? Why would the panel go to all the trouble of amending its order to include this enigmatic footnote?

On further investigation, I discovered that this footnote reflects a curious line of cases that locate “law to apply” where the agency misperceives its enabling statute in exercising its discretion.

In Singh v. Holder, for example, the BIA refused to reopen a proceeding, sua sponte, on the grounds that the agency believed it lacked authority to so under a different provision of its rules. See 771 F.3d 647 (2014). Although the Ninth Circuit repeatedly had held that the BIA’s sua sponte authority to reopen a proceeding is unreviewable, the Singh panel found “law to apply” in the agency’s conclusion that it lacked authority to act. Id. at 651-52. Ultimately, the panel disagreed with the BIA’s interpretation, and remanded to the agency. Thus, the agency engendered “law to apply” by interpreting its authority in the course of exercising its (unreviewable) discretion. See also Mahmood v. Holder, 570 F.3d 466, 469 (“[W]here the Agency may have declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail, remand to the Agency for reconsideration in view of the correct law is appropriate.”).

As I see it, this exception to APA § 701(a)(2) bears great similarity to “Chevron Step 1.5,” which is the D.C. Circuit’s doctrine of denying deference when the agency mistakenly determines the statute is unambiguous, even though the agency’s interpretation otherwise would have warranted binding Chevron respect. Notwithstanding my fascination, I harbor reservations about this “Step 1.5” loophole in APA § 701(a)(2). My first concern is doctrinal. As observed by the Eight Circuit, APA § 701(a)(2) “is typically characterized as categorical, and the Supreme Court elsewhere has rejected a similar ‘theory of partial reviewability’ because the ‘discretionary character of the administrative action involved’ excluded a judicial remedy altogether.’” See Barajas-Salinas v. Holder, 760 F. 3d 905 (2014) (quoting Schilling v. Rogers, 363 U.S. 666, 675-76 (1960)). Simply put, it’s wholly unclear whether APA § 701(a)(2) allows for this sort of judicial parsing.

My second concern is practical. It’s uncertain to me how courts can limit this framework in a principled manner. If a court possesses the latitude to find “law to apply,” then where does its search end? To this point, there is evidence of judicial adventurism in controversies where courts have invoked the Step 1.5 loophole in APA § 701(a)(2).

In Bonilla v. Lynch, for example, a Ninth Circuit panel reviewed the BIA’s discretionary decision to deny a motion to reopen a proceeding sua sponte, which the court previously held to be an unreviewable action under APA § 701(a)(2). See 840 F.3d 575 (2016). In Bonilla, however, the panel identified “law to apply” after an overweening search. For its part, the agency justified its decision on “the totality of the circumstances” and drew no definitive legal conclusions. Id. at 591. Nevertheless, the panel imputed to the agency an incorrect legal position, based on the agency’s prior statements in the record. Id. at 591-92.

A Third Circuit panel similarly seemed to be fishing for “law to apply” in Pllumi v. Attorney General. See 642 F.3d 155 (2011). In that case, which centered on the same regulatory provision that was at issue in Bonilla, the panel found “law to apply” via an expansive interpretation of the agency’s order. The Pllumi panel reasoned that because the agency’s decision “can be read” to take a definitive legal position, then there is sufficient “law to apply” to support judicial review. Id. at 161.

In sum, the Step 1.5 loophole in APA § 701(a)(2), while interesting, may be a step and a half too far.

Update on LULAC

In an en banc order issued on 19^th April, the Ninth Circuit sitting en banc modified a the court’s decision in LULAC v Wheeler, which had required the EPA to pull from store shelves the most widely used conventional insecticide in the country. In so holding, the en banc court sub silentio followed the advice I had provided in this blog—namely, to give the agency the opportunity to respond while employing the oft-used TRAC doctrine to ensure the agency doesn’t drag its feet.

William Yeatman is a research fellow at the Cato Institute’s Levy Center for Constitutional Studies.