Article by John M. Rogers
Lawyers who represent or litigate against government agencies must wrestle so frequently with the concept of agency “discretion” that they may be forgiven for believing that the term is devoid of intrinsic meaning—a chameleon deriving substance only from its particular context. For instance, mandamus will lie only for ministerial acts, as opposed to “discretionary” ones. Agency acts that are “by law committed to agency discretion” are not reviewable in court under the federal Administrative Procedure Act (APA). However, agency actions are reviewed for “abuse of discretion.”' On the other hand, tort suits against the government will not be allowed for exercises of “‘discretionary functions,” and individual government officials may be absolutely immune from tort suits only for exercises of “discretionary” duties. Because courts making these determinations do not always use the same criteria, it is easy to conclude that there is no consistent definition of “discretion” that will contribute to sound analysis in each context. Such a definitional analysis is suggested here. The approach will be inductive—to set forth an analysis and then to see if it works satisfactorily. The test will be whether the definitions comport with sound case law while furthering the policy reasons for the use of the concept of discretion in each particular context.
An agency constantly has to make choices. It has to choose, for example, whether to prosecute someone, whether to grant a license, which of several persons to hire, and which of several possible standards of conduct to adopt. The agency generally will be limited by “the law” in what choices it can make; it also may be limited in the bases it may use for making those choices.
The law may be said to give an agency discretion when under clear facts the agency may make more than one choice. If, however, on undisputed facts the law permits only one choice, then the agency is said to have no discretion. For example, if an agency is permitted by law to hire citizens between the ages of eighteen and forty, it has great discretion—there are many possible choices. But, if an agency must grant a certain type of license to every applicant who pays ten dollars, is over eighteen, and has better than 20/40 vision, then in the absence of dispute over payment, age, or vision, the agency has no discretion: the law requires it to give the license.
An agency “exceeds” its discretion when it makes a choice outside the range of possibilities permitted by law. For instance, in the hiring example, an agency exceeds its discretion by hiring a noncitizen or a seventeen-year-old person.
An agency “abuses” its discretion when it makes a choice within the range of permissible possibilities, but for a reason or on a basis that is not allowed by the law. Typical bases for decisionmaking that the law might not allow are the applicant's race, the decisionmaker's malice, casting of lots, or receipt of kickbacks. In the example, a twenty-year-old citizen would be a legally permissible choice, but if the choice were made on the basis of bribery, the agency would have abused its discretion because this basis is not permitted by the law.
Although abuse of discretion is undesirable, in one sense it is not as bad as exceeding discretion. The choice made is permissible under the law. That is, if the agency had arrived at the same choice for a legitimate reason, the law-givers would have been satisfied.
Agency action is “committed” to agency discretion when the law does not limit the agency's bases for decisionmaking. For instance, if the law permits the Army to assign a private to a particular post for any reason whatsoever, then the decision is committed to Army discretion.
Finally, particular types of agency “functions” may be described as “‘discretionary” because the activity consists largely of selecting among permissible choices, rather than of determining which is a required choice. Thus lower level officials, whose duties largely involve following detailed regulations, do not exercise a “discretionary function” as frequently as higher level policy-making officials who are engaged in determining what substantive regulations will be promulgated; the latter are primarily engaged in selecting among permissible choices. Because virtually all agency functions involve some choice making, these functions, unlike particular choices, cannot be classified in an either-or fashion as “discretionary” or “nondiscretionary.” Thus, the determination of whether functions or duties in general are “discretionary” must be given substance by the particular policies underlying the legal rule using the term.
All of this fits together reasonably well in the absence of factual disputes. There is, however, no logical reason why the existence of factual disputes should disturb concepts of agency discretion. Although it may be unknown whether the person hired is seventeen or nineteen or whether the basis for hiring was a bribe, there are established fact-finding procedures to make such a determination and standards for reviewing findings of fact. Because theoretically there can be only one factual truth, exercising discretion is analytically distinct from the ascertainment of facts. There is no choice in a factual matter, but rather only the difficulty in determining what is the single answer because of conflicting or insufficient information.
Similarly, there may be disputes over what the governing law provides. Disputes could arise regarding whether the law required an applicant to be twenty-one rather than eighteen, or whether holding a lottery is a proper legal basis for choice. Again, there are established means for making such determinations, such as legislative history or canons of construction. Although these methods may include deference to an agency's interpretation of the law, they are still consistent with the underlying theoretical axiom that there is ultimately only one proper interpretation of the law. Accordingly, discretion is analytically distinct from the ascertainment of governing law because the latter theoretically involves no choice.
Determinations of so-called “mixed” questions of law and fact, such as whether the applicant is a “citizen” within the meaning of the governing law, are also distinct from the exercise of discretion. Although the appropriate standard for determining a mixed fact-law issue may be elusive, the existence of only one factual truth and the existence of only one proper interpretation of the law require the conclusion that there is ultimately only one correct resolution of the mixed fact-law issue. Again, no choice is involved: the applicant either is a citizen or he is not.
The concept of discretion as defined here must be tested to determine whether it satisfactorily explains and reconciles the use of the term in the contexts in which it most frequently arises.
About the Author
John M. Rogers. Associate Professor, University of Kentucky College of Law; B.A. 1970, Stanford University; J.D. 1974, University of Michigan.
Citation
57 Tul. L. Rev. 776 (1983)