dissenting.
Plaintiffs challenge the Secretary’s refusal to implement the portion of the Special Disaster Payments Program (SDPP) authorizing but not requiring the Secretary to make emergency disaster payments available to farmers if each of three prerequisite conditions is first found to exist in a given situation. 7 U.S.C. § 1444d(b)(2)(D). Plaintiffs contend that in this case each of the necessary conditions is present and further that the Secretary’s failure to act is arbitrary, capricious, and an abuse of discretion. 5 U.S.C. § 706(2)(A). The government, however, argues that the “abuse of discretion” standard of review has no application in this case because the Secretary’s refusal to implement this program is committed to his discretion by law and is not subject to judicial review. Id. § 701(a)(2).
The court today rejects the government’s position and concludes the “[SDPP] presents a straightforward case which compels judicial review of agency inaction.” Ante at 351. Having so concluded, the court requires the Secretary to adopt “procedural and substantive standards under which disaster assistance can be disbursed,” id. at 351, and by implication requires the Secretary to implement the payments program and make emergency disaster payments available. I believe the court’s decision is contrary to the controlling legal standard and impermissibly diminishes the discretion granted the Secretary by law.
*356As a general rule, the Administrative Procedures Act provides individuals with the right to seek judicial review of adverse agency action. 5 U.S.C. § 702. This general rule is not without exception, however. One narrow exception is contained in 5 U.S.C. § 701(a)(2) which exempts from judicial review those decisions “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).
The Supreme Court first examined the scope of this exception in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), in which the Court concluded the exception “is applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Id. at 410, 91 S.Ct. at 821 (emphasis added) (citation omitted). Recently, in Heckler v. Chaney, — U.S. ---, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Court clarified the test to be applied in determining when agency action is committed by law to agency discretion or, in other words, when there is no law to apply. The Court stated:
[The narrow exception of § 701(a)(2) is applicable and] review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely. This construction avoids conflict with the “abuse of discretion” standard of review in § 706 — if no judicially manageable standards are available for judging how and when an agency should exercise its discretion then it is impossible to evaluate agency action for “abuse of discretion.”
Id., 105 S.Ct. at 1655 (emphasis added). Applying this standard to the present action, I conclude that no judicially manageable standards exist against which to judge the Secretary’s action, and thus the Secretary’s action is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).
In establishing the SDPP, Congress’ primary goal was to “provide for a limited continuation of disaster payments to cover those parts of the country into which Federal crop insurance has yet to expand.” S.Rep. No. 126, 97th Cong. 1st Sess. 76, reprinted in 1981 U.S.Code Cong. & Ad. News 1965, 2041. To accomplish this goal, Congress provided that when natural disaster prevents the planting or harvesting of feed grains but Federal crop insurance is not yet available, the Secretary “shall” make disaster payments to eligible farmers. 7 U.S.C. § 1444d(b)(2)(A)-(C) (emphasis added). These provisions of the SDPP require the Secretary to administer a reasonably well-defined relief program, implemented and placed in effect by Congress. In essence, little is left to the Secretary’s discretion.
The remaining provision of the SDPP, id. § 1444d(b)(2)(D), stands in sharp contrast to the subsections just discussed. This provision authorizes the Secretary to implement a disaster payments program in situations when crop insurance is available. However, unlike those portions of the SDPP that compel the Secretary to make payments when no insurance is available, this provision simply authorizes the Secretary to implement a payments program and provides that “the Secretary may make disaster payments ' * * whenever [he] determines that—
(i) as the result of drought, flood, or other natural disaster, or other condition beyond the control of the producers, producers on a farm have suffered substantial losses of production either from being prevented from planting feed grains or other nonconserving crop or from reduced yields, and that such losses have created an economic emergency for the producers;
(ii) Federal crop insurance indemnity payments and other forms of assistance made available by the Federal Government to such producers for such losses are insufficient to alleviate such economic emergency, or no crop insurance cover*357ed the loss because of transitional problems attendant to the Federal crop insurance program; and
(iii) additional assistance must be made available to such producers to alleviate the economic emergency.
Id. (emphasis added).
The court relies on these factors, which by implication incorporate the factors mentioned in the legislative history of the SDPP, see S.Rep. No. 126, 97th Cong. 1st Sess. 78, reprinted in 1981 U.S.Code Cong. & Ad.News 1965, 2043 (comments of Senator Heflin), to find that judicially manageable standards exist against which the Secretary’s decision can be judged. In so doing, I believe the court not only fundamentally misunderstands the limiting effect these criteria have on the Secretary, but also misapplies the controlling legal standard recently articulated by the Supreme Court in Chaney, 105 S.Ct. at 1655.
Rather than providing any meaningful standards against which the reasonableness of the Secretary’s decision can be judged, these criteria only establish the threshold at which the Secretary has discretion to act and can implement a disaster payments program if he chooses to do so. Absent any one of these factors, the Secretary is without discretion; he can take no action. However, once these criteria are established, and in this case they apparently are, the Secretary is authorized to act. But, unlike the prior provisions, 7 U.S.C. § 1444d(b)(2)(A)-(C), in this instance Congress has seen fit only to provide that the Secretary “may” take action if he chooses to do so. See id. § 1444d(b)(2)(D). Thus, the Secretary’s decision to act or not act is committed to his discretion.
Under Chaney, the issue then becomes whether standards exist under which this court can determine whether the Secretary’s refusal to act constitutes an abuse of this discretion. See 5 U.S.C. § 706(2)(A). Such a determination requires this court to find judicially manageable, congressionally implicated standards that indicate those situations in which Congress intended that the Secretary should (rather than could) exercise his discretion. Chaney, 105 S.Ct. at 1655. With respect to this issue, the SDPP and its legislative history provide no guidance. Here, the court effectively views the presence of the criteria under which the Secretary may take some action as also establishing that the Secretary must take some action. Such a conclusion ignores the plain language of the SDPP.
The court’s reliance on the General Accounting Office report is also misplaced. As an initial matter, a report such as this has no binding effect on the Secretary and does not provide this court with law to apply in reviewing the propriety of the Secretary’s action. Further, this memo specifically assumes that the Secretary has decided to implement the program in a particular situation and only suggests that the Secretary adopt uniform criteria in determining what specific areas will be eligible to receive payments. Here, the Secretary has determined that the program as a whole will not be implemented. Such a decision is, in my opinion, within the Secretary’s discretion, and as such the General Accounting Office report is irrelevant and of no significance in judging the appropriateness of this decision.
As an additional matter, I believe the prior Eighth Circuit decision in Allison v. Block, 723 F.2d 631 (8th Cir.1983), is inapplicable in this case. In Allison, Congress gave the Secretary no discretion with respect to developing a loan deferral program. Id. at 635. Rather, the only decision left to the Secretary was in determining whether individual loans would or would not be deferred. Id. In the present action, Congress has committed to the Secretary not only the decision of whether to make certain disaster payments to individuals in specific cases, but has also committed to the Secretary the decision of whether to implement the program under any circumstances. Had the Secretary determined that the program should be implemented *358and then refused to promulgate procedures governing general entitlement to the payments being provided, a different question would be presented, and under those circumstances, Allison would be applicable.
I conclude that Congress has placed the determination of whether to implement the discretionary program encompassed in the SDPP entirely with the Secretary. While criteria exist which unless established prevent the Secretary from exercising any discretion, once these criteria have been established, there are no guidelines against which the Secretary’s decision to act or not act can be judged. Because no judicially manageable standards exist, no law exists which can be applied to this case and judicial review is not appropriate.
As a final comment, I disagree with the court’s cursory discussion of the anti-injunction provision found in 15 U.S.C. § 714b(c), which provides “no * * ' injunction * *, mesne or final, shall be issued against the [Commodity Credit] Corporation [(CCC)] or its property.” 15 U.S.C. § 714b(c). In this action, plaintiffs seek a “preliminary injunction to compel * * * [the] Secretary * * * to implement three federal agricultural disaster relief programs.” Ante at 348. Because the SDPP is administered by the Secretary through the CCC, 7 U.S.C. § 1444d(h), this court is without authority to grant plaintiffs the relief they request, and the action should be dismissed.
Further, although implying that its decision is not injunctive in nature, the court effectively enjoins the Secretary (and thus the CCC) and compels him to make available a program the implementation of which has been left entirely within his discretion. This result is contrary not only to the intent of Congress in adopting the SDPP, but is also contrary to the Administrative Procedures Act, recent Supreme Court authority, and the provisions of the Commodity Credit Corporation Act.
For the above stated reasons, I would affirm the decision of the district court.