Darby v. Cisneros Page 16

Darby v. Cisneros general information

Media for Darby v. Cisneros

Audio Transcription for Oral Argument - March 22, 1993 in Darby v. Cisneros

James A. Feldman:

Right.

Well it says APA are doing, and therefore to refer also to 7... we have seen so far is 7... it says--

John Paul Stevens:

Well, "nothing herein" was meant to be this additional waiver of sovereign immunity.

It isn't to... it isn't to waive any other defenses.

James A. Feldman:

--It says "affects other limitations".

Well--

James A. Feldman:

Actually, that was the term was I was trying to--

--What does "herein" mean?

James A. Feldman:

--Other limitations.

Antonin Scalia:

I thought 702.

James A. Feldman:

Well, it probably refers to section 702.

I don't think it really makes a difference because--

Antonin Scalia:

The waiver of sovereign immunity in particular.

It's saying in waiving sovereign immunity, we're not waiving all these other things.

James A. Feldman:

--Right.

And one of the--

Antonin Scalia:

But we're not talking about 702, we're talking about 704.

The issue is what 704 provides.

James A. Feldman:

--I think what Congress intended by the 702 does, which is create a statutory cause of action for judicial review, that in creating that we are not... Congress did not intend originally, and certainly in 1976 made clear that it didn't intend to upset these traditional doctrines such as exhaustion and primary jurisdiction and lateness and so on.

Sandra Day O'Connor:

Well, Mr. Feldman, on that point, what is traditional?

Are there cases out there that were decided before the adoption of the APA that clearly said exhaustion is required in the situation of a discretionary agency appeal?

I haven't spotted any and I wondered if you had.

James A. Feldman:

I haven't... I haven't spotted any.

Actually, I haven't spotted cases that--

Sandra Day O'Connor:

Well, they're a little hard to pinpoint under traditional, it seems to me.

James A. Feldman:

--Well, it depends--

John Paul Stevens:

In fact, wouldn't you agree that Meyers against Bethlehem Steel is the classic case on exhaustion?

James A. Feldman:

--Yes.

John Paul Stevens:

And isn't that a finality case?

The holding of the court is