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D.C. Circuit: Sure, This Delegation is Tricky ? But We?ve Seen Worse

By E.L. Lipman

Last Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed a lower court?s earlier dismissal of claims against the Armed Forces Retirement Home of Washington, D.C. In that case, the plaintiffs asserted that federal law entitled them to a court order enjoining the administrators of the Home to ?provide high quality health care? to the Home?s elderly residents. By way of reply, the Home argued that the federal requirement to provide ?high quality care? to their resident veterans was so intentionally imprecise, that Congress left the determination of what kind of care amounted to ?high-quality,? to the sole, un-reviewable discretion of the administrators.

Disagreeing, Circuit Judge Janice Rogers Brown remarked for the appellate panel ?although ?high quality and cost-effective? is a tricky standard for the court to apply, that difficulty is not unique to this statute?. We have regularly found Congress has not committed decisions to agency discretion under far more permissive and indeterminate language.?

Some examples of those lesser statutes, and the panel?s complete analysis, are accessible here.

Full post as published by Within the Scope on December 20, 2007 (boomark / email).