an unconventional way), no useful purpose would have been served by review of the regulations at this time.
In this case plaintiffs waited six years after the regulations were promulgated and four years after they expired to challenge their validity. It is clear that this challenge was prompted by the initiation of enforcement proceedings, and, if successful, would have the effect, if not the purpose, of interrupting and ending those proceedings. A court should hesitate to permit enforcement proceedings to be diverted in this manner. For as the Supreme Court has warned, judicial review may not be used as "a means of turning prosecutor into defendant before adjudication concludes." 449 U.S. at 243.
Moreover, there is no showing that plaintiffs have asked the Board to suspend proceedings pending the outcome of the studies and the revised regulations contemplated by COBRA, developments which could radically change the issues before the Board, or precipitate new action by Congress or by the Secretary, either of which could completely moot the pending litigation.
Finally, defendants argue that Plaintiffs' challenge is barred by the doctrine of laches.
While it is not necessary to reach that issue, plaintiffs delay in initiating this suit counsels against pre-enforcement review and interruption of the administrative proceedings now pending.
Although probably more relevant to the merits than to the laches defense, it is nevertheless germane that Congressman Michel chose not to reiterate his 1980 fiscal year bill in 1981 because he considered the then-unchallenged 1980 regulation to be in place. 126 Cong. Rec. 23462 (1980). The Senate Appropriations Committee also evidenced its understanding that the 4 percent error rate was operational.
The Administrative Procedures Act afforded plaintiffs access to judicial review of the 1980 regulation when it was adopted and while the Concurrent Resolution of 1979 remained viable. Plaintiffs' unusual contention that none of them was originally aggrieved by the adoption of the regulation is not persuasive. When the average error rate before 1980 was historically 6.7 percent for AFDC and 15.7 percent for Medicaid, some of the plaintiff states were obviously threatened and aggrieved by the 4 percent error rate established by the 1980 regulation. There may be circumstances in which a state could, in effect, obtain judicial review of a rule-making decision five or six years after the rule became effective. However, here, the authorizing legislation has expired.
While the Court expresses no opinion on whether the laches defense would preclude post-enforcement review of the challenged regulations, it is clear that it is too late for the pre-enforcement review sought by plaintiffs. Accordingly, an accompanying order will grant defendants' motion to dismiss.
For the reasons stated in the accompanying Memorandum, it is this 26th day of November, 1986, hereby
ORDERED: that plaintiffs' motion for summary judgment should be, and is hereby, DENIED; and it is further
ORDERED: that defendants' motion to dismiss should be, and is hereby, GRANTED; and it is further
ORDERED: that this complaint should be, and is hereby, DISMISSED.