Page:Heckler v. Chaney.pdf/21

Rh821 that an agency with enforcement discretion has abused that discretion.

In response to respondents' petition, the FDA Commissioner stated that the FDA would not pursue the complaint ""under our inherent discretion to decline to pursue certain enforcement matters. The unapproved use of approved drugs is an area in which the case law is far from uniform. Generally, enforcement proceedings in this area are initiated only when there is a serious danger to the public health or a blatant scheme to defraud. We cannot conclude that those dangers are present under State lethal injection laws .... [W]e decline, as a matter of enforcement discretion, to pursue supplies of drugs under State control that will be used for execution by lethal injection.""

The FDA may well have been legally required to provide this statement of basis and purpose for its decision not to take the action requested. Under the Administrative Procedure Act, such a statement is required when an agency denies a "written application, petition, or other request of an interested person made in connection with any agency proceedings." 5 U. S. C. § 555(e). Whether this written explanation was legally required or not, however, it does provide a sufficient