William H. Rehnquist: We'll hear argument next in number 91-1833, Michael Lincoln v. Grover Vigil or Vigil. Spectators are reminded not to talk while you're in the courtroom. Mr. Kneedler, you may proceed.
Edwin S. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court: Respondents brought this suit to challenge a 1985 decision by the Indian Health Service to redirect the work of a group of its employees from a regional to a national effort to promote the availability of diagnostic and related services for handicapped Indian children. The employees' work was funded by a lump sum appropriation from Congress for the Indian Health Service and its 12,000 employees, 50 hospitals, 150 health centers, and 300 health clinics. The funds were authorized by the Snyder Act, the comprehensive statute that authorizes Indian appropriations generally, and by the Indian Health Services Improvement Act which from time to time has provided supplemental funds to address specific areas of Congress' concern. This case presents two questions. First, whether judicial review under the Administrative Procedure Act of the... of an agency's allocation of funds from one concededly authorized purpose to another is barred because it is committed to agency discretion by law. And second, whether formal rule-making procedures, consisting of a published notice in the Federal Register and opportunity for comment, is required before the Indian Health Service could redirect its resources in the manner that respondents challenge. We submit that the answer to both questions is no, or that the court of appeals erred on both questions. On the first, the court of appeals acknowledged that the Snyder Act and the Indian Health Service Act do not provide manageable standards for a court to apply in reviewing the Indian Health Service's action here. Nor does the Lump Sum Appropriations Statute furnish any such law. It's simply, as is typical of such statutes, a lump sum for all of the authorized activities of the statutes... or of the agency under the statutes that authorize its basic functions. The court of appeals instead concluded that certain statements in the legislative history of the Lump Sum Appropriations Statute furnished a basis for judicial review. In our view that is clearly wrong. Statements in legislative history are simply not law for a court to apply within the meaning of this Court's APA jurisprudence. Only statutory texts enacted by Congress is law for a court to apply.
Antonin Scalia: You... you have a text here which is, you know, a certain amount of money. And you don't... it doesn't... you don't know what that money's supposed to be used for, and this legislative history clarifies what it's to be used for. Why is that any different from a piece of legislative history that clarifies the meaning of a prohibition? It's totally ambiguous. You'd think the agency can take a number of different views of what it means. If you find it clarified in the legislative history, that's what it means. Is that--
Edwin S. Kneedler: That's... that's not the purpose for which the court of appeals used the language in this case. It did not focus on language in the Lump Sum Appropriations statute itself and then say that the legislative history helped to clarify the statutory text. The court really used the legislative history as a substitute for the statutory text. The statutory text here simply authorizes the agency to expend the funds for purposes authorized by the... by the Snyder Act as... those functions transferred to the Indian Health Service. It's then necessary to look to the Snyder Act or the Indian Health... Indian Health statute to look for any law to apply. And the... the Snyder Act, for example, and the court of appeals, again, didn't find anything in the text of the... of the Snyder Act or the Indian Health Care Improvement Act that would furnish law to apply in this case. The Snyder Act, as this Court pointed out in Morton v. Ruiz, is deliberately comprehensive. It was enacted in response to the... the time when points of order were raised against Indian appropriations because there was no authorizing statute.
Sandra Day O'Connor: --Well I suppose those acts would... would provide law to apply for some questions that might arise under them.
Edwin S. Kneedler: Yes. If... if the claim were that the... that the Indian Health Service were... were--
Sandra Day O'Connor: They were providing help for non-Indians.
Edwin S. Kneedler: --Exactly. But there... I don't there can be any question here that the reallocation or redirection of the work that the Indian Health Service made in this case was authorized by the statute. It simply redirected the employees' work from a regional... regionally focused program to a national program, to assure available services for Indian children. There's... I think that's unquestionably within the broad language of the... of the Snyder Act.
Sandra Day O'Connor: Well, to that extent there's law to apply here.
Edwin S. Kneedler: Right, but... but--
Sandra Day O'Connor: Whether... whether you can go to a national program.
Edwin S. Kneedler: --No, I... I think not. Respondents have not contended that the... that the... use... utilizing the employees... what was going to be done here, essentially... let me just back up for a minute. The employees under this Indian children's program in... or project in... in the Southwest was really set up as a pilot project. It wasn't even integrated into the local Indian health care delivery system. It was operated out of headquarters as a pilot project to really investigate what... what might be done in what was thought to be perhaps an under utilized area. But the... but the ultimate point was to develop data and approaches for a nationwide program. And so when... when the Indian Health Service redirected the activities of the employees, the thought was that rather than have these employees do monthly consultations... consultative visits with individual children, it would be better to try to develop local responsibility for the Indian children from local programs and have these employees use their expertise to go to other Indian Health Service areas around the country to help them develop the local expertise. But I don't think there's... there can be any question and I don't understand respondents' to claim that the utilization of the employees for this nationwide effort is somehow beyond the... the scope of what the Snyder Act or the Indian Health Care Act would authorize.
Sandra Day O'Connor: Well, do you think that the discretion provided under these acts is any greater than, for example, the discretion given to... was it the Department of Transportation in the State Farm case?
Edwin S. Kneedler: Well in... in State--
Sandra Day O'Connor: To just provide motor vehicle standards that met the need for motor vehicle safety.
Edwin S. Kneedler: --Well, there there were specific statutory requirements that had to be satisfied, and there wasn't... there was law--
Sandra Day O'Connor: They were pretty broad. I just... I just wonder how you distinguish them.
Edwin S. Kneedler: --Well, in... in the State Farm case there were... there were actually quite stringent requirements that the agency had to satisfy before it could promulgate a motor vehicles standards. There was... there were certain criteria at certain levels of safety that had to be satisfied that gave... that gave a court law to apply. Here the... again, the Snyder Act was intended to cover essentially every possible activity that the BIA and now the Indian Health Service might engage in, so that there could be no question of a point of order when funds were appropriated to cover those funds. And--
Antonin Scalia: But, Mr. Kneedler, suppose you had a statute that... that authorizes an agency... instructs an agency to pro... and this is an instruction to... to expend the funds as well... to prohibit those activities that are harmful to the environment. And the legislative history, the committee reports of both Houses, say we anticipate that this will include prohibition of, and then fill it something, you know dumping... by... by chemical companies. You think that legislative history would not be... would not be taken into account by this Court in... in... in determining whether the agency had authority to, or... or had to prohibit that dumping by chemical companies?
Edwin S. Kneedler: --It might be taken into--
Speaker: I'm sure it--
Edwin S. Kneedler: --It might be taken into account in construing the term harmful, I guess is the statutory... the operative word there.
Antonin Scalia: --Well, and the operative word here is... is purposes authorized by these other statutes. What purposes in particular? Well, here's one.
Edwin S. Kneedler: Well, the... the Snyder Act, for example, broadly appropriates funds for the benefit... directs the BIA to... to supervise the expenditure of funds that Congress may from time to time appropriate for the benefit, care, and assistance of Indians throughout the United States for a variety of services, as relevant here "relief of distress" and "conservation of Indians". Now, again, if the claim here were this is not... this money is not being spent for the relief of distress or conservation of the health of Indians or for any of the other purposes in the act, that would be law to be apply. But our point is that in... in choosing among the concededly authorized purposes, there's no... there is no law to apply in the text or legislative history of the Snyder Act or the Indian Health Care Improvements Act that would help a court to decide that question. Now--
David H. Souter: Could you... could you imagine a case in which the legislative history would contain an indication of congressionally ordered priorities so that the legislative history would somehow indicate that the first priority in the Snyder Act is for disabled children--
Edwin S. Kneedler: --I... I can imagine that sort of legislative history, but I think in some respects that's very much like the American Hospital Association Case this Court had several terms back where there... where there was legislative history about the... the expectations. And the way the Court thought the National Labor Relations Board--
David H. Souter: --And... is that... and is that law to apply if the agency ignores the funding obligation?
Edwin S. Kneedler: --Not... not unless--
David H. Souter: The funding priority?
Edwin S. Kneedler: --Not unless that legislative history is tied to something in statutory texts that mandates that result. I think this is very much like the D.C. Circuit's decision in the UAW case versus Donovan of some years back, where the... the court pointed out that legislative history of... of expectations in the way that Congress expected that expected that funds may be expend are simply expectations, they aren't legally binding requirements. That's not to say they don't furnish protections, because congressional oversight in the appropriations process is... is often a very useful one. And, in fact, it's in many respects the most productive and... and appropriate one for the overseeing of broad legislative programs. Courts are not generally suited to determining... to second-guessing an agency's ordering of its priorities on spending.
David H. Souter: Well, so... so long as the spending is authorized by one of three statutory mandates, there can be no review as to how the agency allocates the fundings among those three.
Edwin S. Kneedler: Unless Congress has... unless Congress has provided further guidance about how the court is to order its priorities. It's instructive in this regard--
David H. Souter: And can it provide that guidance in legislative history?
Edwin S. Kneedler: --I think not unless it's tied to specific statutory texts. The expectations are ones that Congress might enforce, as it were, in oversight hearings in subsequent years, which is the tradition give and take between an agency and its... and its authorizing and appropriations committee.
Sandra Day O'Connor: Well let me pose this to you. Suppose the BIA established a... a health care program for Indians with displaced children... with displaced hips, and then it decided later to terminate that because it understood that Indian children with displaced hill... hips would be served for their health needs by a State agency.
Edwin S. Kneedler: Right.
Sandra Day O'Connor: And let's suppose that... that assumption is factually incorrect, so they've cut off the services based on an incorrect factual assumption. Is there no law to apply? Is that unreviewable for abuse of discretion?
Edwin S. Kneedler: It is... it is unreviewable, yes. Because... first of all, I think... there are reasons, I think, why that's not apt to become a major problem, but let me explain why that's so. The availability of other services is simply one of the many criteria that the... in this case the Indian Health Service might take into account in reallocating resources. It... it's also possible that there would be some... that there would be other uses of the funds that would simply... as... as needed as the funds might seem for one service, might seem more useful for another service. It's important to recognize that the Indian--
David H. Souter: Well, Justice O'Connor can defend her own hypothetical if she wants to, I suppose, but I'd like to have an answer to it. Suppose that this is the reason that State funding duplicates this program and that reason is wrong.
Edwin S. Kneedler: --If that reason is wrong--
David H. Souter: Is factually unsound--
Edwin S. Kneedler: --If that reason... if that reason proves to be wrong, I think what would happen is that would be brought to the... brought to the attention of the Indian Health Service and--
David H. Souter: --Well, my question is, is there law to apply? Can there be judicial review and judicial correction of that... of that agency decision?
Edwin S. Kneedler: --There's not... there's not law to... because even if there's a factual error, that does not mean there's law to apply. The agent... the... this is... our position is--
David H. Souter: Is it arbitrary and unreasonable? Could it... could you make out a case that it's arbitrary and unreasonable--
Edwin S. Kneedler: --Well--
David H. Souter: --That there was... there was clear evidence that the State program did not provide the... the care and the agency just ignored clear evidence.
Edwin S. Kneedler: --Well, that... that would be the sort of claim that would be made if it were arbitrary and capricious--
Speaker: Well--
Edwin S. Kneedler: --But our position is that review would be precluded of that. When review is precluded, that conclusion presumes that there will be occasions... there could be occasions when there would be mistakes of that... of that type made.
David H. Souter: --And review is precluded, again, because there's no law to apply.
Edwin S. Kneedler: Yes. Because... because it... well, the phrase no law to apply is a phrase that this Court has developed for applying what is... what is really different statutory language under the APA, which is whether the agency action is committed to agency discretion by law. That's the ultimate touchstone. And in the sort of example that... that you're describing, the conclusion would be that Congress has committed the allocation of resources in a whole variety of circumstances to the... to the discretion of the Indian Health Service. In part from necessity, because if courts were going to get in the business of second guessing every decision of resource allocation, whether to purchase equipment for one hospital and not another, whether to reassign a doctor from one health clinic to another, even whether a patient should get one particular type of care or another, and... and base that on whether there was... whether there was perhaps a factual error, or what could be claimed to be a factual error underlying the agency's decision, then the... the Indian Health Service could be hamstrung in the... in the delivery of health services.
Antonin Scalia: Mr. Kneedler, suppose... here's how... it says for expenses necessary to carry out the act of August 15, 1954, blah, blah, blah, that's how the appropriations reads. Suppose the... the committee, both... the Appropriations Committees in both Houses, there's language in the report that says we anticipate that some of this money will go to this particular schooling program. It is later contended that that schooling program is not an authorized program on which the appropriations can be expended; that question comes up in a lawsuit. You mean that... that committee legislative history would not be used by the Government to establish--
Edwin S. Kneedler: No, I'm not saying that legislative history can't be used to construe a statutory term. My point is that it can't--
Antonin Scalia: --Well, that's what they're doing here. They're... they're saying this shows the expense is necessary to carry out, they anticipated it, this is one of the things to be carried out.
Edwin S. Kneedler: --But... but the respondents' argument in the court of appeals decision here is not tied to any language in the Lump Sum Appropriation or the Snyder Act or the Indian Health Care Improvements Act that's being construed with the assistance of that language. In fact, the court of appeals, again, specifically said it's difficult to find any manageable standards within the... within the Indian Health Care Improvement Act or the Snyder Act. There's no statutory text in either one that says this... this function might be preferred over that one.
Antonin Scalia: The text in the Appropriations Act; expenses necessary to carry out the act of August 5, 1954. It's clear in the Appropriations Committee that one of the things they thought necessary was this program. Why isn't that statutory language--
Edwin S. Kneedler: Well, expenses necessary is standard language in an appropriations statute. And if... and if that language was thought to incorporate every representation that is made to an appropriations committee, frankly, I think that would revolutionize the way in which... in which agencies and Congress itself and GAO have traditionally regarded the appropriations--
Antonin Scalia: --Well, I know. I mean you say that in your brief. You say well, it's just puffing; it's not unusual for congressional committee members to attempt to influence the expenditure of general appropriations by way of statements in committee reports, as though they don't do that in other contexts. How do you identify the one from the other.
Edwin S. Kneedler: --They... again, I guess I'm repeating myself, but here the claim is... the claim is not that... that there is some... they have not pointed to language... respondents have not pointed to language in the Snyder Act or in the Indian Health Care Improvement Act and says this is the provision that it violates. These... the national program is unquestionably authorized by both statutes, and the only question is in choosing among authorized functions, whether courts have... whether that matter is committed to agency discretion. And that's not--
Speaker: Do you have another basis for reversal?
Edwin S. Kneedler: --Yes, we do. The other... the second issue in the case concerns the court of appeals requirement that the Indian Health Service resort to notice and comment rule-making procedures before it could implement the decision to redirect the funds in this case. The court of appeals announced a rule that notice and comment requirements are necessary anytime the Government cuts--
Sandra Day O'Connor: But before... before you get there, did the court below reject the proposition about unreviewability?
Edwin S. Kneedler: --Yes, it did.
Sandra Day O'Connor: So we... we must address that here.
Edwin S. Kneedler: Yes. Might... now I suppose the Court could choose to address the notice and comment first, because the court of appeals did not go on and reach the merits of whether the decision was arbitrary and capricious, it simply held it was subject to review, but held that it wouldn't reach the merits because of the notice and comment point which it viewed in the manner of a threshold issue.
Sandra Day O'Connor: So we at least need to address the notice and comment issue.
Edwin S. Kneedler: Yes. Yes, that's correct. And the court of the appeals held that notice and comment is required anytime the Government cuts back on congressionally created and funded benefits for Indians, even if the Indians have no entitlement to those benefits. There is, in our view, no basis for that new requirement. It conflicts with Vermont Yankee, which bars courts from imposing additional procedural requirements on agencies that are not required by law. And significantly, also, it fails to respect that... the judgment of Congress when Congress thought that input from Indians was necessary in the formulation of Indian health programs. In 1980... in the 1988 amendments to the Indian Health Care Program that we mention in footnote 36 of our brief, Congress specifically addressed this problem in the context of facilities, permanent facilities, and it said that whenever the Indian Health Service is contemplating constructing, renovating, or closing a facility, it must consult with the tribe concerned before it does that and, in fact, in the case of closing a facility must notify Congress. Congress... significantly, Congress did not impose any such requirement of consultation with respect to services under the statutory provisions that we have here, services as opposed to--
Sandra Day O'Connor: Mr. Kneedler, does the APA definition of rule include policy statements? Is it a... is the decision to terminate this project possibly a rule under that definition?
Edwin S. Kneedler: --Right. That's... that is the ground that... that's the rationale that the district court applied.
Sandra Day O'Connor: Uh-hum.
Edwin S. Kneedler: The court... the court of appeals announced this broader rule that it thought came from this Court's decision in Morton v. Ruiz, which we... which we believe was... was, first of all, an overreading of Morton v. Ruiz and did not take into account subsequent developments, on that point Vermont Yankee, and also the notion that an agency has to... can only administer a program like this through legislative rules, we think is inconsistent will Bell Aerospace which allows an agency some discretion. But on the APA point on whether this constitutes a rule--
Speaker: Uh-hum.
Edwin S. Kneedler: --We... we think that it... that it clearly does not. The decision to reallocate these resources was a self-contained decision. It was... yes, it was communicated verbally and, yes, it had some future consequences, but that does not convert it into a rule.
Sandra Day O'Connor: But it's been... it's been interpreted broadly to cover statements issued by an agency to advise the public prospectively of the manner in which an agency proposes to exercise a discretionary power.
Edwin S. Kneedler: But it... in a way that has future legal consequences is what... is what really characterizes a rule. We don't believe that Congress, when it enacted the statutory definition of a rule, intended to depart fundamentally from the... from the core of what a rule is. A rule... another word for rule is a regulation, something that has... that has binding effect or at least legal force to it, that... that guides, in a legal manner, the future exercise of discretion.
Sandra Day O'Connor: But it's been... it's been interpreted by the Attorney General's commentary as including general statements of policy.
Edwin S. Kneedler: It does include general statements of policy. But policy in a sense that the statement itself has an abiding future effect. In this case the... in this case there really was no--
Sandra Day O'Connor: Well, it'll have an effect all right, there won't be a program available.
Edwin S. Kneedler: --No. Well first... first of all, there is a program. All the... all the... the children in these service areas will continue to be serviced by the national program. It's just that the... that all Indian children throughout the country will get the same services, rather than the regional program... children in this one region getting something different. But it has a practical consequence, we don't deny that. But in order to be a rule, the statement itself, the statement has to have a continuing future legal effect. And here the decision to reallocate--
Antonin Scalia: How about rules of agency organization, which are referred to in the APA?
Edwin S. Kneedler: --Well--
Antonin Scalia: How does... how does a reorganization of the agency have a future legally binding effect on any outside individual?
Edwin S. Kneedler: --Well, it... it would... it would assign in a formal way. I mean formality has a lot to do with what's a rule. It would assign in a formal way where various statutory responsibilities are to be assigned within the agency, which assistant secretary is responsible for which programs, so that one can look and see who has the authority to exercise legal power, statutory power delegated from the Secretary, and where various programs will reside. And that has a lot to do with... with the way in which governmental authority is exercised. But here... at bottom, what happened here was nothing more than a... than the sort of directive that a superior may give to a... to an employee saying instead of doing this type of work, confining your work to a regional program, starting tomorrow your job description is somewhat different, you're being assigned to new... to new responsibilities. That decision was consummated at that time and it was communicated verbally in a variety of ways, one of which was a memorandum to health service units contained at page 80 of the joint appendix. But the fact that the statement was communicated or that the decision was communicated in a statement didn't mean that the statement itself had any future legal consequences.
David H. Souter: Does the conclusion that you draw or don't want us to draw depend on the context? For example, if we were dealing here with a... an agency action which was preceded by a whole body of what everybody agrees would be rules about how the agency ought to allocate its money and so on, then perhaps your argument would have great force. You would say well this is just trivial, this is basically just a reassignment of people. But where there is not such a body of... of rules in existence, this has far greater significance, i.e. it determines whether there is going to be a certain kind of program or not. Is that kind of contextual contrast a legitimate thing to take into consideration?
Edwin S. Kneedler: Well, it might be a relevant factor. I mean, the fact of the matter is it's difficult to come up with any one principle that will solve all places. But we do think that formality and continuing legal effect are really the two cental hallmarks of what a rule is, both in ordinary meaning and the special sense in which it... in which it's used. So even in the situation you're talking about where a decision might be made to... to engage in a certain program, that doesn't convert it into a rule. I think that the Court's decision is Overton Park is very instructive as a parallel to this case. There the Court specifically held that the Department of Transportation's decision to fund a particular program out of its appropriated funds was not a rule. And this is, in our view, directly parallel to that.
Antonin Scalia: Mr. Kneedler, isn't there an exception anyway? Even if it were a rule, isn't there an except for rules related... to notice and comment rule making for rules relating to benefits?
Edwin S. Kneedler: There is... there is an exception. The Department of Health and Human Services, like most agencies, has agreed to follow notice and comment procedures--
Speaker: I see.
Edwin S. Kneedler: --For that. There may be some question of whether these direct services are... are benefits--
Speaker: Uh-hum.
Edwin S. Kneedler: --Within the meaning of that exception or whether it just means cash transfers. But in any event, we haven't relied on that exception here because it's... it's been... it's been waived. I'd like to reserve the balance of my time.
Sandra Day O'Connor: Mr. Kneedler, on a small point, there... the court below ordered publication.
Edwin S. Kneedler: Yes.
Sandra Day O'Connor: And is that question before us?
Edwin S. Kneedler: In order for there to be publication, it would... the decision here would have to be a rule, so our argument that it's not a rule subsumes both the publication requirement and the notice and comment requirement.
Speaker: Uh-hum. Very well, Mr. Kneedler. Mr. Jasperse, we'll hear from you. Is that a correct pronunciation of your name?
Joel R. Jasperse: Jasperse, thank you. Mr. Chief Justice and may it please the Court: The lower courts were correct in requiring notice and comment in this case, and to understand why it's critical that you understand how the program was implemented in the first place and how it was operated. This program, the Indian Children's Program, was implemented in a direct response to the Indian Health Care Improvement Act, which was passed in 1976. That act was passed to provide supplemental funding for Indian programs, supplemental to the Snyder Act. Title II of the Indian Health Care Improvement Act specifically authorizes funding for known unmet Indian health needs and specifically authorizes funding for therapeutic and residential treatment centers. It was in response to that language in this act that the agency implemented this Indian Children's Program.
David H. Souter: Did it engage in rule making when it instituted the program?
Joel R. Jasperse: It did not, Your Honor. Initially, the agency envisioned a $3.5 million facility. That was never funded. They initially chose to center that facility near Albuquerque for a number of reasons, primarily because the large Indian population which then-Director Emery Johnson described as half of... roughly half of the Indian population residing in the States of New Mexico and Arizona. The Bureau of Indian Affairs did not--
William H. Rehnquist: About roughly half of the Indian population residing in New Mexico and Arizona resided in the Albuquerque area.
Joel R. Jasperse: --No, Your Honor, in those two States. Those were his words, his characterization of the Indian population at that time.
William H. Rehnquist: Half the Indian population in the United States resides in Arizona and New Mexico.
Joel R. Jasperse: Those were his words, Your Honor. The Bureau of Indian Affairs did not support the center. One of the reasons was they did not feel that an inpatient center like this would meet their mandate, under a separate act relating to special education, to provide services in the least restrictive environment. So what happened was the Indian Children's Program was formulated anyway by the... the Indian Health Service, by going ahead and forming specialized teams. They felt that the staff, the specialized staff that was needed to provide these services was going to be needed regardless of whether they had a brick and mortar facility. The team was... was formed in 1978. It was centered in Albuquerque and it proceeded to go out into nearby Indian communities to provide various services, primarily diagnostic and treatment services. To its credit, the Indian Health Service recognized that there was a critical need for diagnostic and treatment services. They realized that observers felt that this situation was one comparable to the national situation 35 years before, at the time of the Second World War. Eventually a memorandum of agreement was signed by the two agencies. They agreed to try out this concept of working together to provide these services. And in 1979, the fall of 1979, the Bureau of Indian Affairs did join this effort.
Antonin Scalia: Mr. Jasperse, you claim rule making was necessary to terminate the program. You say it wasn't... it wasn't applied to begin the program either. I assume it would have been necessary to begin the program too, wouldn't it?
Joel R. Jasperse: Our position, Your Honor, is that when... when the agency is implementing law like this, establishing services, that they should have undergone notice and comment before getting to establish--
Antonin Scalia: Before... to establish it. And if they had decided not to establish it... since the APA defines agency action to include agency inaction, if they had not established the program, they would have also have to had rule making in order not to establish the program, wouldn't they?
Joel R. Jasperse: --I don't believe so, if they were not going to--
Antonin Scalia: Well, read the APA; agency action includes inaction. Any decision not to have the program would require rule making, just as a decision to have it would require rule making and, as you say, a decision to terminate it would require rule making.
Joel R. Jasperse: --We certainly agree.
Antonin Scalia: We're going to have a lot of rule making out there.
Joel R. Jasperse: I can't concede that inaction requires rule making. They're not... they're not taking anything... they're not taking any action prospectively there that's of a generalized nature--
Speaker: Oh.
Joel R. Jasperse: --That implements a policy--
Antonin Scalia: The decision not to spend money on this program in the first place is a decision that has future effect; as you say, it's going to deprive these people of the money. And the decision not to have it under the APA is just as much a decision as the decision to have it, so you would need... you would need rule making endlessly for all programs you begin, for all programs you end, and for all programs you don't begin. I... you know, I don't know where the end is.
Joel R. Jasperse: --Well, we... we believe very strongly in this case that where the agency did, in fact, undertake this operation and do so in response to the statute, as well as its Federal Trust responsibility to Indian people; that when they, over time, operated this program, provided these kind of services, established eligibility rules that set out what services were to be... to be provided and who was to receive them; that when they went ahead and disestablished that program, that that--
Speaker: Who's they?
Joel R. Jasperse: --The agency. The agency--
Speaker: Which agency?
Joel R. Jasperse: --The Indian Health Service. This was a joint effort, but only the Indian Health Service made this particular decision. In fact, the Bureau of Indian Affairs was... did not even receive notice until they received the actual termination letter that the agency... the Indian Health Service sent out. What happened during this time is that the eligibility criteria that were adopted by the agency were applied. And, basically, those eligibility criteria were such that only children in certain areas of the Southwest were to receive those services and only children who were within certain... a certain age range, birth to age 21, and who were handicapped, were to receive these services. And so these teams traveled out into the Indian communities, into reservation areas, areas that were remote, that were rural, that were isolated and oftentimes small, and provided these diagnostic and treatment services. What's also important to understand is that throughout the operation of this program every year in testimony to the congressional committees regarding appropriations, the agency continuously told the agency, this is a critical program for these children, it's a successful program, we are providing these specific diagnostic and treatment services to them, certain children are eligible for these services and we want continued funding for this program. And Congress appears to have responded favorably to these requests. They received the information in a favorable light and we think there was... this showed intent by the Congress, through its appropriations committee, to continue this program in the form that the agency then did. In October 1984, officials in the Rockville, Maryland Headquarters East portion of the Indian Health Service began urging that this program be changed, that the... the form that it was in at that point, which was a regional program, be changed to a national scope program that would provide consulting and training. Sometime in 1985... the record is not clear as to exactly when this decision was made, but sometime in 1985 the decision was made to eliminate the Indian Children's Program as a direct service program. This termination decision was announced in a letter in August of 1985. This termination letter, single letter, is the only explanation that the agency provided or that gives us any information as to what it was doing and why it was doing this. One of our arguments here in terms of the arbitrary and capricious argument is that a single letter that simply tells what they were doing without any explanation is not... not sufficient to provide us with a reasoned explanation of its action.
Antonin Scalia: What about all the other people on whom money was not being spent? Were they also entitled to an explanation of why money was not being spent on them? I mean you're not the only people. There you're joining the vast majority of the citizens on whom this money is not being spent. What... what is the reason for your special entitlement to a notice and comment rule making on this point?
Joel R. Jasperse: We believe that notice and comment is afforded, first, because this was a rule, a legislative rule under the APA.
Speaker: Well, but--
Joel R. Jasperse: Second--
Speaker: --Okay.
Joel R. Jasperse: --Second... Your Honor, there are four reasons why we--
Antonin Scalia: The first one applies to everybody else. I'm trying to figure out why everybody else isn't entitled to it. What's the... what are the other three.
Joel R. Jasperse: --Okay. The others, Your Honor, are that there is an... under the Indian Trust responsibility, there is a specific duty to deal fairly. We think if that... that language, which was stated by this Court in Morton v. Ruiz, is to mean anything--
Speaker: Uh-hum.
Joel R. Jasperse: --Is not simply an empty phrase that this Court used, that that at least means fairness to these children.
Speaker: Uh-hum.
Joel R. Jasperse: And fairness here, in this context, means some kind of procedural protection.
William H. Rehnquist: Well Mr. Jasperse, in the case, I forget what the name was, I think it's Cherokee, we decided two or three... we said the concept of the Indian Trust responsibility is basically a responsibility for land, not any general duty of heightened fair dealing with Indians.
Joel R. Jasperse: There is clearly a specific fiduciary duty when... when it comes to land, Your Honor. However, this... this Court... and the Government doesn't dispute this, that there is a general overriding trust responsibility that the Government has. What they're... that they are--
William H. Rehnquist: That should... that should make the standards of review under the Administrative Procedure Act different when Indians are parties plaintiff than when other people are parties plaintiff?
Joel R. Jasperse: --Not... not... I'm not arguing that point under the APA. The APA... the notice and comment here in this case can stand regardless of whether it involved Indian people or not, with this type of action. What I'm arguing here as a second basis for affirming the notice and comment is that the overriding trust responsibility--
William H. Rehnquist: Indians are entitled to notice and comment even though non-Indians in precisely the same situation would not be. Is that what you're arguing?
Joel R. Jasperse: --No. I'm arguing that in this particular context the APA would afford them notice and comment regardless of whether they were Indian people. But in addition to that, this duty to deal fairly must mean something--
William H. Rehnquist: Well, but I think you're simply reading that much too broadly from our cases. I don't think our cases have said there is any general duty to deal in a specially fair way with Indians, as opposed to other citizens, unless you're talking about the interpretation of a treaty or the duty to deal with trust lands.
Joel R. Jasperse: --Let me address your question by referring to Morton v. Ruiz. In that case you also had Indian people. In that case there were... it was a Snyder Act program similar to this one. It wasn't specifically required by statute, it was funded under Lump Sum, there weren't specific eligibility rules required by the... by the statute. In that case this Court said that the... because there is an overriding duty of trust under this general trust responsibility, that the continued expectation, the legitimate expectation of those general assistance recipients in that case, could not be extinguished unless there was notice and comment.
William H. Rehnquist: Well, I suggest that you take a look at our opinion in Cherokee Nation where we say, "The trust responsibility is implicated only where the Indian property is at stake. " Mr. Jasperse, I thought that the APA itself exempted it from notice and comment. Even if you assume that the letter in... at issue was a rule... and I'm not sure it was, but if you assume that, it exempts general statements of policy from any notice and comment requirement. And at best you would consider the letter just a statement of policy, wouldn't you?
Joel R. Jasperse: Well, we... we would... we would submit that even if it was a general statement of policy--
Speaker: Uh-hum.
Joel R. Jasperse: --That that presumes it was at least a rule in the first place, and so that it comes within the purview of the Administrative Procedure Act. And a statement of general policy must at least be published in the Federal Register, and this is--
Sandra Day O'Connor: But no notice and comment required.
Joel R. Jasperse: --That's correct, Your Honor. But it would at least have to be published in the Federal Register which would give publication notice, and that is one of the independent grounds on which the district court did rule in favor of the children's suit under the APA. And so the... the point is it doesn't really make any difference for the children whether or not this was a legislative rule requiring notice and comment under section 553 or whether it was a statement of general policy requiring Federal Register publication under section 552, either way we win. The Government's argument is that this is an action that... that's not a rule at all and so doesn't come within the APA.
Sandra Day O'Connor: You... you don't win if it isn't a rule.
Joel R. Jasperse: That's correct. It must be a rule. And our argument here is that this was clearly prospective in nature, it was generalized in nature, it applied to all of these children. And it... and it prescribed policy. This was a change that the agency made from following one course of action to a very different course of action. That change was a change in terms of how it was... how it was deciding to implement its reading of the Indian Health Care Improvement Act, the specific therapeutic and treatment centers provision in the act. And so when they make a change in their reading of the law and change their whole program as a result of that, that's at least a statement of general... general policy. And it's... and it's certainly a rule.
Antonin Scalia: Mr. Jasperse, if I may turn to the "law to apply" aspect of this for a moment. Some agencies have as their function disbursing money, as these agencies have as a large part of theirs, or disbursing benefits. Other agencies are enforcement agencies principally and don't give out much money. In a case called Heckler v. Chaney we decided that there was no law to apply, to basis for a cause of action against an agency asserting that it had to exert its enforcement priorities in this manner rather than in another manner. We said there are lot of different manners it can use; it's up to the agency to decide where to devote its limited enforcement resources. Now, why doesn't that principle carry over very well to... to an agency that's in the disbursement of benefits business? To the same extent, there really is no law to apply.
Joel R. Jasperse: Well, we would argue that the Heckler v. Chaney type of nonenforcement decision was really one that was not primarily a resource-type allocation decision, but a decision whether to take a specific type of action that it could under the statute. This--
Antonin Scalia: Well, only because the agency has limited enforcement resources, just as these agencies have limited distribution resources. It has to put it one place or another place, and it decided to do it in places that the plaintiffs didn't like. The same thing's happening here.
Joel R. Jasperse: --Well, I think... I think in this kind of a situation this Court has... has answered that by saying that when there are limited... limited funds, and you're going to change a program from what it was doing before and when you're going to extinguish an expectation that the services that were there before, that you have to at least give the people the kind of notice so that they know what's happening. And that's the notice and comment requirement that comes in under Morton v. Ruiz. And even if there insufficient funds and their... and the agency has to do this reallocation, it has to be done in such a way that it's fair to the children. And it's not fair to the children, given this overriding trust responsibility to deal fairly with them, if... if the agency simply abruptly stops the services here. I would add that it's... it seems illogical and totally incomprehensible that when the agency has a specific mandate under the Snyder Act, a mandatory requirement that it act with respect to Indians to conserve health, that they not at least, when they're... when they're abruptly terminating these services, to give them notice. Notice, just as a matter of general common sense, would have been proper here, and something that would have assisted them in maintaining their health. It might be similar when we get... those... those of us here who are covered by private health insurance, we would be... feel very unfairly treated if... if the coverer simply dropped the... the coverage that we have without telling us, or changed a provision in the coverage without telling us. If the children had known ahead of time, if they had been given notice, they could have at least have attempted to locate and find those alternative services that the Government says was readily available, to make some sort of a transition. Without that transition, they fell into... fell between the cracks; there was a gap of time. And the record is very clear on that point, that loss of services to these type of children harms them. The type of treatment services that they need you cannot accumulate. And so loss of services over even a couple of months was detrimental to their health. What the Government is really asking this Court to do here in its argument that there is no law to apply, is to... is to write a blank check. We have relied on, in this case, all of the Indian health care law that there is. If there is no law to apply here under the Snyder Act and the Indian Health Care Improvement Act and the Indian Health Service Manual and so on, no Indian people will ever be able to obtain judicial review. It will be completely foreclosed. We don't--
Byron R. White: Could I... could I ask you... suppose we disagree with you... suppose we... suppose we say that... that there is no need for notice or comment; is the case over?
Joel R. Jasperse: --No, Your Honor, the case is not over. The... both lower courts--
Byron R. White: But let's assume we agree with you that... that there is... that that is not committed to agency discretion, but that there's no need, when the agency did what it did, for... to give notice or comment.
Joel R. Jasperse: --If there's no... no notice and comment requirement and it's that this is not totally a matter of agency discretion, the case is not over. It would... would require remand to the district court--
Byron R. White: To decide whether it was arbitrary and capricious, or what?
Joel R. Jasperse: --Yes, Your Honor, yes. And in... with respect to the arbitrary and capricious argument--
Byron R. White: Because the court didn't reach that, did it?
Joel R. Jasperse: --No, it did not. It... it found that all that was necessary here... because there were procedural violations, that it wasn't about to go further and make a merits ruling.
Byron R. White: On the other hand, if we... if we say that it's committed to agency discretion, there is no need to reach the notice and comment issue, is there?
Joel R. Jasperse: We think if... if it's... if it's committed to agency discretion, that that... that all that goes to is... is the review on the merits itself, whether it was arbitrary and capricious or contrary to law.
Speaker: Uh-huh.
Joel R. Jasperse: The procedural violations claims are still there and there is separate law to apply to those. And that separate law is, of course, section 552 and section 553. So that you would have to rule both that there is no... there was no rule here, so that there was neither 552 Federal publication or notice and comment under 553, and you would have to rule that this is totally and completely discretionary, that there is simply no law of any kind to apply here to this action. In order for it to go--
Antonin Scalia: Indeed, I suppose you would argue that if there is no law to apply, there is all the more need for the notice and comment procedures that the law requires. Because of the agency having a free hand and not being controllable by the courts, there's all the more reason for insisting that it listen to the public as the law requires it to do, right?
Joel R. Jasperse: --Yes, Your Honor. It's... there it's crucial that... that the courts be available to small disenfranchised minorities such as these children were.
Byron R. White: That is if... if it's a rule. We would have to... we would have to agree that it's a rule before there's notice and comment.
Joel R. Jasperse: Right, right. It must be a rule to get Federal Register publication and it must be a rule to get--
Byron R. White: Well, do we have to... well, go ahead. Mr. Jasperse, just a couple of questions. This involves a termination, but let's assume that the agency simply reduced the number of employees, would that be a rule?
Joel R. Jasperse: --It... it would depend on the reason that they reduced the employees.
Clarence Thomas: Let's say we just... they decided to deploy them to Phoenix.
Joel R. Jasperse: That... that would not be a rule. There's no prescription of law in that kind of a situation. However, if they were to decide to redeploy the staff to meet a specific statutory requirement, to meet... meet the mandate of their law in some specific way, then they would be implementing the statute and that would be prescription of law, and that--
Clarence Thomas: Let's... well, let me understand that. If you reduced the staff by 50 percent, that's not a rule.
Joel R. Jasperse: --It... again, it depends on whether you're doing that simply as a matter of agency management or whether you're doing that because the law requires something--
Clarence Thomas: Let's say we want to use these... this 50 percent to develop a national program.
Joel R. Jasperse: --In that case, that's... that... that would be prescription of law. You're implementing a statute there, and that would be a rule that requires... that would be a rule in that instance. We believe that judicial review is appropriate in this case both because this action was arbitrary and capricious, the program changed its course of conduct, it changed its policy without any explanation. Again, all we have is a single letter that says what they were going to do, but did not provide any explanation. They also made this decision without justifying... making an unjustified factual assumption that there would be readily available alternative services. That the children have made a clear showing... and, in fact, the district court found that the children's allegations in this regard were essentially unrebutted. And the agency must, in order to make this decision in a manner that is not arbitrary and capricious, do so in a way that's adequately informed, that considers all the relevant factors and provides a reasoned explanation. And finally, we are asserting, of course, that this action was directly contrary to the law, particularly the Snyder Act... this goes directly contrary to its requirement that the agency take actions which conserve health... and also the Indian Health Care Improvement Act requirement that they maintain and improve and try to achieve the highest possible health status for these children. I would like to close and... and I think particularly with respect to law, law to apply, it's perhaps fitting to remember the words of the Gospel of Matthew where Jesus says "Suffer the little children to come unto me. " I would ask that you do no less, don't close the courthouse doors on these kids. Please at least afford them judicial review. Thank you.
William H. Rehnquist: Thank you, Mr. Jasperse. Mr. Kneedler, you have 4 minutes remaining.
Edwin S. Kneedler: There are a couple points I wanted to make on each of the issues. First, on the notice and comment issue, on the question of... of individualized notice which counsel for respondents mentioned, it's important to bear in mind that the Indian Health Service was not the primary provider of care in these circumstances. It was always a backup or secondary consultative role that IHS personnel were performing. The children involved had primary care givers and the Indian Health Service did give individualized notice to the primary care givers and held community meetings to assist them in developing alternative resources, which was the sort of approach appropriate to the circumstances. In addition, notice and comment is not well suited to obtaining the input of the Indian people in a circumstance such as this. But neither Congress nor the Indian Health Service has been indifferent to the need to get input, but they've chosen a different way, which was... which was a system of consultation with the tribes concerned. I've mentioned the... the consultation with tribes that Congress required for facility alterations in the 1988 amendments which are in 25 USC 1631, but in addition the amicus brief of six tribes in this case cites several documents which describe the Indian Health Service's broader system of consultation through a national health board, through health boards at the local level for the various clinics, and consultations with the tribes concerned about the delivery of services on their reservations. That is the form of consultation and input that is appropriate to the circumstances. It's also appropriate to the Indian Health Service's mission, which is one from a public health perspective, not one of individual entitlement to... to medical services, but a public health service which requires them to look at the big picture and mortality rates and where... where services are needed in the main. On the question of what's committed to agency... that this is committed to agency--
Speaker: Mr. Kneedler, can I ask you one--
Edwin S. Kneedler: --Yes.
John Paul Stevens: --One very brief question. I understand that this is not a rule under your view. Is it agency action?
Edwin S. Kneedler: Yes, I think it's agency action, but it's a self-contained decision with no lasting consequences in itself. On the question of committed to--
Antonin Scalia: You don't agree at all agency action is divided into rules and orders, that there's some--
Edwin S. Kneedler: --We do not. That there's a large category--
Antonin Scalia: --Third category that we don't know what they are.
Edwin S. Kneedler: --Informal action, yes, I think that's necessarily so, or... or agencies would be hamstrung. On the question of committed to agency discretion, it's... I want to emphasize again several points. One, the statements in the committee reports have long been... on Appropriations Acts have long been understood by the GAO, I think by Congress itself, and by executive agencies, not to be intended to create binding legal obligations. And to change that understanding of those sorts of exchanges in the appropriations process would, in GAO's view and the executive branch's view, change that process radically. Also, on the question of what is... when something is committed to agency discretion by law, it's important to bear in mind that whether there's law to apply is just one way of getting at that question. There are other factors in... that this Court has recognized, including whether the issue is one that's traditionally been regarded as committed to agency discretion, which the allocation of appropriated funds is. And also whether there would be unduly disruptive consequences of allowing judicial review, and for the reasons I've described there clearly would be here, because it would subject numerous myriad decisions of the Indian Health Service and the administration of this vast program to the potential for judicial review on basis of facts or disagreement about the ordering of priorities. Which brings me to the last point on that, and that is directly tied to Heckler v. Chaney, as Justice Scalia mentioned, that this is a case going to the core of the allocation of scarce agency resources among the various demands on the agency's time and energy, and that is, again, necessarily something committed to agency discretion. Thank you.
William H. Rehnquist: Thank you, Mr. Kneedler. The case is submitted.