concurring and dissenting.
I agree that a complaint seeking to direct the agency to exercise its prosecutorial discretion one way rather than another should be dismissed because it does not state a claim upon which relief can be granted. See Fed.R.Civ.P. 12; Heckler v. Chaney, — U.S. -, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). But agencies may not violate congressional directives with impunity. See Chaney, 105 S.Ct. at 1656-57 & n. 4; Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970); Kunaknana v. Clark, 742 F.2d 1145, 1148 (9th Cir.1984); Carpet, Linoleum and Resilient Tile Layers v. Brown, 656 F.2d 564, 568-69 (10th Cir.1981); District 2, Marine Engineers Beneficial Association v. Adams, 447 F.Supp. 72, 74-75 (N.D.Ohio 1977); see also Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973) (en banc).
The plaintiffs assert that the Secretary, by directing inspectors not to assess penalties when they find statutory violations, is violating the express terms of the statutes. See 45 U.S.C. §§ 6, 13, 34, 438; 49 U.S.C. §§ 26(h), 1809. In my opinion, the majority has dealt too hastily with this claim which the district court also failed to consider. As the Supreme Court recognized in Chaney, when an agency has “ ‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities,” it has ceased acting within an area committed to its discretion. Chaney, 105 S.Ct. at 1657 n. 4 (quoting Adams v. Richardson, 480 F.2d at 1162). I would remand for consideration of the plaintiffs’ claim that the Secretary’s policy violates her statutory duties.