Access to Judicial Review
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.
The Role of Congress
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Except for the original jurisdiction of the United
States Supreme Court that is in the constitution,
and the constitutional requirement for a case and
controversy, everything else is statutory
Congress creates, and can limit, jurisdiction and
standing, with in the constitutional limits
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.
 Why will this always give you jurisdiction in a
federal agency action?
If the agency enabling act contains a provision
controlling jurisdiction, it preempts § 1331.
 Can Congress remove jurisdiction?
Where do you file?
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 usually reviewed by
circuit courts?
 What is the rationale for having agency cases
heard in the courts of appeals?
OSHA Example
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Enabling act says that actions may be brought
under 29 U.S.C. § 655(f) in circuit courts
 The statute is silent as to whether this is the
exclusive source of jurisdiction
 Can you fall back to 1331 for an action covered
by 655?
Could you use 1331 to get into district court about
a suit over an OSHA action not covered by 655?
 What are the conflicting policies?
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 court 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
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?
Example: Dam that Mouse!
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Corps wants to build a dam that will destroy a
scenic river and the habitat of an endangered
mouse
Sally has hiked there and will in the future
John has spent his life defending endangered
species, but has no future plans to visit this area.
Who has standing and why?
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?
Example - Requirement that the Corps
Coordinate with other Agencies
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What was necessary for standing in the Corps
permitting example where the corps did not do the
required statutory coordination with other
agencies?
What if it were a remote, unpopulated area?
Might this leave no with standing to object in
court?
Example - FERC
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FERC allows previously banned ex parte
communications
What is the injury?
What is your argument for standing?
Who can claim standing?
Example - Denial of a Required Public
Hearing
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The Corps skips a required public hearing when
issuing a permit
How is this different from skipping a public
hearing to take comments on a rule?
How would Justice Scalia read the standing
requirement?
How do some commentators argue that the
Defenders of Wildlife have suffered a
particularized injury, and thus have standing?
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?
Example - FEC Classification Decision
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FEC does not classify an organization as one that must
make public reports of its finances
Does a plaintiff who wants info on the group have
standing to contest the classification?
What is FEC's argument against standing?
How did the Court use the purpose for collecting the
information to support the plaintiff's standing claim?
What is your argument if the required information is not
reported to the public?
Procedural Violations and Causation:
Agency Fails to get an EIS for a Dam
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What is the causation problem?
What is the harmless error doctrine from civil procedure?
Do you have to show that that they gotten the EIS, that
the dam would not have been built?
What is the correct showing?
What would the agency have to argue to rebut the
standing claim?
Why should this be a problem for the agency?
Can you get standing because of the
effect of an action on a third party?
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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 denying the exemption increase charity care?
 What would they need to show?
What if this was an order from HHS to comply EMTALA,
which requires emergency care be provided without
regard to the patient's ability to pay?
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."
Do you still have to show a theoretical chance of a
change in agency action if the procedure is fixed?
Representational Standing
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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
Why is this important for environmental and
poverty action groups?
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
Since this a court created doctrine and not a
constitutional doctrine, the legislature can
override it.
Problems with 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?
This is a court created doctrine to ensure that
claims made under a statute actually advance the
purpose of the statute, including the intended
beneficiaries
 Similar to the test in torts for negligence per se
Air Courier Conference of America v. American
Postal Workers Union, 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?
 How does their case depend on the welfare of the
suckers?
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
Hazardous Waste Treatment Council v.
Thomas, 885 F.2d 918 (D.C. Cir. 1989)
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Trade group represents providers of advanced
waste treatment services
EPA adopts rule requiring less complete treatment
of waste
 Why does plaintiff want to contest the rule?
What is the purpose of the rule (remember CBA)?
Did the court find plaintiff in the zone of interest?
Honeywell International, Inc. v. EPA, 374
F.3d 1363 (D.C. Cir. 2004)
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Plaintiff contests the EPA allowing a product made by a
competitor to be substituted for a CFC.
What is plaintiff's interest?
How is plaintiff's interest different from plaintiff in trade
group case?
 What is the plaintiff's argument for why the
environment is harmed by the substitution?
 Why does the specificity of the standard help
plaintiff's case, compared to the trade group case?
Example: Internet Book Stores
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IRS allows non-profit college book stores to
operate on the Internet
Other Internet books stores object
What is the analysis?
 What is the purpose of the exception and the
underlying law?
How might the analysis shift if Amazon is the
plaintiff and does not pay taxes itself?
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.
For example, general claims that the BLM is not
protecting the environment do not work