where the statute did nothing to “circumscribe!] the government's power to discriminate among issues or cases it will pursue” (internal quotation marks omitted)). 8 . As discussed above, see supra note 4, the Commission applied the Enforcement Guidelines to the Secretary's decision to charge Twentymile notwithstanding its acknowledgment that “the Enforcement Guidelines are not binding on the Secretary.” Commission Decision, 27 F.M.S.H.R.C. at 273 n. 19. 9 . See Lincoln, 508 U.S. at 191, 113 S.Ct. 2024 (“[W]e have read § 701(a)(2) to preclude judicial review of certain categories of administrative decisions that courts traditionally have regarded as committed to agency discretion.” (internal quotation marks omitted)). 10 . See Sierra Club v. Whitman, 268 F.3d 898, 902 (9th Cir.2001) (<HOLDING>). 11 .See Cathedral Bluffs, 796 F.2d at 537 n.
holding that a courts authority to require exhaustion of administrative remedies in actions brought under the apa is limited when neither the statute nor agency rules specifically mandate exhaustion as a prerequisite to judicial review holding that the designation of the rod as final agency action under the apa is generally recognized holding that when an agency has not reached an issue the proper course is to remand to the agency to address in the first instance holding that ftc issuance of a complaint meets the apa definition of order and therefore is agency action even if not final agency action holding that the presumption of agency discretion recognized in chaney has a long history and contrary to the plaintiffs assertion is not limited to cases brought under the apa