Access to Judicial Review
Exam Notes
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In class
If you want to use a computer, you have to get
with the tech guys and arrange to use the exam
software
Somewhat different from past years
 Short problems and specific questions
Closed book
Objectives
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Understand the difference between jurisdiction
and standing
Understand the theories of standing and how they
are used in adlaw cases
Understand ripeness in the agency context,
including exhaustion of remedies and primary
jurisdiction
The details of access to the courts is for the
federal courts course
Getting to Court is Not Winning!
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Remember from due process
 Getting a hearing is not the same as prevailing
in the hearing
If you cannot get to court, you cannot win
 Why is getting to court good even if you cannot
win?
Jurisdiction and Standing
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Must be present or the claim is void
Can be raised at any time, including by the court
on its own (sua sponte)
28 USC § 1251. Original jurisdiction
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(a) The Supreme Court shall have original and exclusive
jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive
jurisdiction of:
 (1) All actions or proceedings to which ambassadors, other
public ministers, consuls, or vice consuls of foreign states are
parties;
 (2) All controversies between the United States and a State;
 (3) All actions or proceedings by a State against the citizens of
another State or against aliens.
28 § 1331. Federal question
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The district courts shall have original jurisdiction
of all civil actions arising under the Constitution,
laws, or treaties of the United States.
 This is the default if the enabling act is silent.
 If the agency enabling act contains a provision
granting jurisdiction, it preempts § 1331.
28 § 2342. Jurisdiction of court of appeals
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http://biotech.law.lsu.edu/cases/adlaw/statutes/28
usc2342.htm
What sort of actions are reviewed by circuit
courts?
 What is the rationale?
Can you fall back to 1331 if the jurisdictional
statute is not exclusive?
 What about suits to force the agency to issue a
rule that would be covered by § 2342?
Standing
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Constitutionally Required Standing
 All cases must meet this standard
 While the United States Supreme Court can
interpret what it means, the courts cannot
abolish it
Prudential standing
 Additional statutory or judicial limits over the
constitutional requirements
Constitutionally Required Standing
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Injury in fact
 http://biotech.law.lsu.edu/cases/adlaw/Lujan_v_
Defenders.htm#18
 injury, causation, and redressability
Recreational, Aesthetic, or Environmental
Injury
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Sierra Club v. Morton, 405 U.S. 727 (1972)
 Just loving trees from far away is not enough
 If you use the area for recreation, this can be
enough
Why did the court find that just loving trees was
not enough?
When might this really affect whether a case can
be brought?
Animal Standing
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Do animals have constitutional rights?
 Is there a constitutional right to bear dogs?
 Are dogs really just people in little fur coats?
What is the test for standing to challenge agency
actions that affect animals?
 What if you work with lab animals?
 Visit the zoo regularly?
Why is animal standing very controversial?
Risk as Injury
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The courts have accepted a theoretical risk of harm, such
as increased risk of cancer from a landfill, as injury
Louisiana Environmental Action Network v. U.S. E.P.A.,
172 F.3d 65 (D.C. Cir. 1999)
 Risk posed by toxic wastes in landfill
 Is this a real risk?
 What are the policy implications?
 What could the effect be on the NO cleanup?
Procedural Injury
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What is a procedural injury?
Is the procedural injury enough for standing?
 Why not?
What else do you have to show?
 What was necessary in Corps permitting
example where the corps did not do the
required statutory coordination with other
agencies?
Procedural Injury and Causation
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What is the causation problem?
 Why was it easy to get standing in the FERC
example where the agency allowed previously
banned ex parte communications?
Do you have to show that the outcome would
have been different?
Why is standing limited by the harmless error
doctrine?
 Is this a constitutional or practical limit?
Informational Injury
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What is the injury if the agency fails to provide a
document that the law makes available under FOIA?
What if the agency fails to collect required information
that would be available to the public
 Would a member of the public have standing to
contest this?
 Why is there standing for a real harm to the general
public, as compared to an abstract harm?
Third-Party Actions and Causation
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Can you get standing because of the effect of an
action on a third party?
Simon v. Eastern Ky. Welfare Rights Organization,
426 U.S. 26 (1976)
 Group challenged the tax exemption for a
hospital, saying it did not deliver charity care
 Would this really improve the charity care?
 What would they need to show?
Redressability
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You have to be able to show that the remedy you
seek from the court would address your problem
 Like Simon
If you have stated a concrete action for injury, you
probably have also met this standard
 The problem is if the agency does not have the
power to do what you want
Procedural Violations and Redressability
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Assume you have stated a real injury in a procedural
violation case
 Is there still a redressablity problem because the
plaintiff cannot show that fixing the violation would
result in a favorable result?
In Lujan v. Defenders of Wildlife, the Court said, “[t]he
person who has been accorded a procedural right to
protect his concrete interests can assert that right
without meeting all the normal standards for
redressability and immediacy.
Representational Standing
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Why is this important for environmental and
poverty action groups?
When can associations bring actions on behalf of
their members?
 At least one member must have standing
 It must fit the organization mission
 The remedy must not require the participation
of individual plaintiffs
Prudential Standing
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This is an umbrella over several different theories
created by judges
The unifying theme is that these are designed to
limit the number of persons who can bring a claim
when the constitutional standing requirements are
vague or overbroad
Generalized Standing
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If an injury is suffered by a very large group of
people, it may be better addressed by legislative
action
 This is related to the political question doctrine
Why might it better for the claims related to
Katrina to be decided by legislation, rather than
the courts?
Zone of Interests
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Are the plaintiff's interests protected by the
statute?
Similar to the test in torts for negligence per se
Air Courier Conference of America v. American
Postal Workers Union, AFL-CIO, 498 U.S. 517
(1991)
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Do postal workers have a right to challenge
changes in the rules giving a monopoly on 1st
class mail?
What was the purpose of the law?
Were there any postal worker unions when the law
was passed?
Bennett v. Spear, 520 U.S. 154 (1997)
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Ranchers want to contest rules under the
Endangered Species Act limiting the release of
water from dams
 What is their interest?
 Does the ESA protect ranching?
Why were they able to use the provision that the
agency rely on the best data?
 Does their claim improve the application of the
ESA?
Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U.S. 150 (1970)
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Just to keep things confused, in this case the court
allowed competitors of banks to contest rule changes
that would have let banks do data processing
 The intent of the law was to protect banks from bad
business decisions, not to protect competitors
The court found that the plaintiffs challenge to the law
would further its purpose - limit the conflicts for banks even if they were not the intended beneficiaries
Is There an Agency Action to Contest?
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Section 702 of the APA allows claims if someone is
harmed by an agency action
551 defines agency action:
 'agency action' includes the whole or a part of an
agency rule, order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act;
This makes it hard to force an agency to do something
that is not specifically required by statute or regulation.