Judicial Review
Getting Into Court
Standards of Review
Remedies
Getting Into Court
Jurisdiction
 Standing
 Exhaustion of Administrative
Remedies
 Ripeness
 Mootness
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Jurisdiction
APA gives general right of review
Statutory Review: Used when agency’s
enabling act provides a special statutory
review proceeding
Nonstatutory Review: Derived from general
grants of original jurisdiction in federal courts
Standing
(1) Has the complainant alleged “injury in
fact”?
(2) Is the interest sought to be protected by
the complainant “arguably within the zone of
interests to be protected or regulated by the
statute or constitutional guarantee in
question?”
U.S. Constitution
Article III, Section 2
Article III, Section 2
“Cases and Controversies”
Injury in Fact
(1) Invasion of a legally protected interest
which is
(a) concrete and particularized
(b) actual and imminent, not conjectural or
hypothetical
(2) There must be a “causal
connection” between the injury and the
complaint; the injury must be fairly
traceable to the challenged action of
the defendant, and not the result of the
independent action of some third party
not before the court
(3) It must be likely, as opposed to
merely speculative, that the injury will
be redressed by a favorable decision
Zone of Interests Test
“Rule of self-restraint”
Prevents standing only when “the plaintiff’s
interests are so marginally related to or
inconsistent with the purposes implicit in the
statute that it cannot reasonably be assumed
that Congress intended to permit the suit.”
Landmark Standing Cases
Sierra Club v. Morton, 405 U.S. 727 (1972)
U.S. v. SCRAP, 412 U.S. 669 (1973)
Duke Power v. Carolina Environmental Study Group, Inc., 438
U.S. 59 (1978)
Lujan v. Nat’l Wildlife Federation, 497 U.S. 871 (1990)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Exhaustion of Administrative
Remedies
Court will usually dismiss case if review is
sought before plaintiffs have pursued all
options for addressing the problem at the
agency level
Exceptions:
-- Agency is clearly exceeding its jurisdiction
-- Administrative remedies are inadequate
-- Statutory exemption from requirement
Ripeness and Mootness
Courts cannot decide abstract or theoretical
claims, or render advisory opinions.
Test: whether the issue presented to the court
is “fit for review” (the so-called legal fitness
test) and whether withholding review would
impose a substantial hardship on the party
seeking review.
Standards of
Judicial Review
Steps in Agency Process:
Law, Fact, and Discretion

Agency interprets the law it is
implementing
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Agency finds facts about the situation

Agency uses discretion in applying law to
facts
Standard of Review for Most
Agency Decisions
APA § 706(2)(a):
A court may set aside agency action
that is “arbitrary, capricious, an
abuse of discretion, or not
otherwise in accordance with law.”
The “Hard Look” Doctrine:
Citizens To Preserve Overton
Park v. Volpe, 401 US 402 (1971)
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Must review if there is “law to apply”
Court must “make a thorough examination of the
entire record” and inquiry into the facts is to be
“searching and careful”
Standard of review is arbitrary and capricious:
“whether the decision was based on a
consideration of the relevant factors and
whether there has been a clear error of
judgment”
Emphasis on quality of agency’s reasoning
The “Soft Glance”:
Vermont Yankee
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Upheld grant of nuclear power plant
licenses despite lower court findings that
agency failed to consider or analyze
certain environmental effects
Courts cannot impose procedural
requirements beyond those in the APA
It is inappropriate for courts to reexamine
policy choices under guise of judicial
review
Judicial Review of Statutory
Interpretations
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Chevron v. NRDC (S. Ct. 1984), aka
“Chevron Two-Step”
STEP 1: Did Congress speak directly to
the precise question at issue?
STEP 2: If not, is the statute silent or
ambiguous with respect to the issue? If so,
agency interpretation upheld if reasonable
Why Do Agencies Lose Cases?
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Key Information Not In the Record
Key Scientific Information Ignored
Tainted by Ex Parte Contact
Unreasonably failing to analyze or
consider other perspectives
Drastic, unexplained change in policy
No Intelligible Rationale for Decision
What does the agency have to
do to satisfy APA standards?
In a nutshell: CLEAR EXPLANATIONS!
“The agency must examine the relevant data and
articulate a satisfactory explanation for its action
including a rational connection between the facts
found and the choice made”
Motor Vehicles, 463 U.S. at 43.
Judicial Remedies for Agency
Violations of Law
Declaratory Judgment
Writ of Mandamus
Injunction (Preliminary or Permanent)
Attorney’s fees and expenses
Money damages