A Note on Abbott Labs

Among the many questions raised by national injunctions is how they are related to the Administrative Procedure Act. A recent treatment of that question is by Ronald Levin. The case for the APA being understood as authorizing national injunctions in the 1940s is particularly weak. But the question becomes more complicated once agencies switched to general rule-making as the means of making policy, and once Abbott Labs accelerated the move to preenforcement review. It's worth noting, however, the current practice of easily available preenforcement review was not inevitable, even after Abbot Labs. Consider the following quotation–after Abbott Labs–in which Judge Leventhal seems to have thought that preenforcement review was still supposd to be a "rare situation":

Appellant has in this case brought an action in district court to review the error of the FTC—naturally, assailed as arbitrary and capricious action— in setting forth the scope of the cease and desist order. It is by now settled doctrine that a person may have relief in equity to avoid invalid official action where the risk of penalties, if he is remitted to defense of enforcement actions, is so coercive as to be a denial of due process. Ex parte Young, 209 U.S. 123 (1908). Equitable doctrine has been advanced with the presumptions of reviewability in the Admininstrative Procedure Act as to agency regulations or orders that have presently compulsive and coercive effects. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). The doctrine has been extended, with certain limitations, to an agency action that constitutes a general interpretation on the highest level, presenting a controversy fully ripe for review. National Automatic Laundry & Cleaning Council v. Schultz, 143 U.S.App.D.C. 274, 443 F.2d 689 (1971). The circumstances and equities presented by appellant are of an entirely different, and lesser, order of magnitude, and appellant makes no comparable case for judicial interposition.
If appellant's case does fall within the rare situation of one that calls for judicial interposition before any enforcement action is begun, he must obtain his relief from the Ninth Circuit whose mandate was entered on appellant's petition for review. That court has jurisdiction. Regal Knitwear v. NLRB, supra. It may be unlikely to give relief, but it is open. There is no jurisdiction in the District Court to give the relief sought.

Floersheim v. Engman, 494 F.2d 949, 954 (D.C. Cir. 1973) (emphasis added).

The careful reader of that quotation will also notice that Judge Leventhal describes the judicial response not as directed to the rule itself but rather as a means for the plaintiff to "avoid invalid official action." That jurisprudential question–whether judges operate on statutes and rules directly, or rather act to shield plaintiffs from the enforcement of those statutes and rules–is an underlying question in the debate over the national injunction.